(dissenting.) While agreeing with my brethren in the general principle which they apply to this case, I think they err in their application of it, and I am unable to arrive at the conclusion which they have reached.
The first rule in the construction of wills is to ascertain if possible, and give effect to, the intent of the testator. All other rules give way before this predominating and decisive one. The principle which the majority of the court invoke is an important one and has its place, but I think must be treated as entirely subordinate to the rule that the testator’s intent, where it can be ascertained, shall govern. I consider the present inquiry to be wholly one as to the real intent of the testatrix.
In this case the testatrix gave to her nephew, Gershom B. Bradley, all her real estate in Westport. She then gives all the remainder of her estate, real and personal, to six relatives, of whom Bradley was one. She thus disposed of all her property, leaving no part of it intestate, so that no necessity arises for applying any arbitrary rule to avoid partial intestacy. The question becomes the simple one— what she intended by her “real estate in Westport.”
It appears from the finding that at the time she made her will, in the year 1856, she owned a homestead and real estate connected with it in Westport, which, after her death, was appraised at $2,350. It is of course entirely clear that she intended at this time to give to Bradley this real estate and this only. She at that time owned no other real es~ *235tate except a small quantity in an adjoining town. But in 1860, four years after the will was made, a note for $3,000 was distributed to her as a part of her father’s estate, which note was secured by a mortgage on a farm in Westport. This mortgage in 1877 she foreclosed, and thereby became the owner of the farm which was covered by the mortgage. She died in 1885, having made no change in her will.
It is very clear that it will not do to argue that she deliberately decided to make no change in her will with the intent that this farm should go with her other real estate in Westport to Bradley, for the principle which the majority of the court apply to the case would be equally applicable and controlling if she had died after her father but before his estate had been distributed, or if she had become insane immediately after the will was made and this note and mortgage had come into the hands of her conversator and the foreclosure had been procured by him.
It is a rule of constant application that where the intention of a testator is doubtful the inquiry after it may be helped by considering all the circumstances attending the making of the will; in other words, that the court should place itself precisely in his place and look out as he did upon his property and the objects of his bounty; and the will, for the purposes of determining its meaning, is always read in the light of the then existing facts. Indeed this court held in Colt v. Colt, 32 Conn., 422, that where parts of a will have been revoked by a codicil, so as in law no longer to exist, and so that the will if regarded as speaking at the time of the testator’s death must be entirely silent as to these discarded clauses, the latter may yet be read with the rest for the purpose of ascertaining the testator’s intent in the clauses which he has retained.
It is impossible to doubt that the testatrix really intended to give Bradley the real estate owned by her in Westport in 1856, and that everything else that she had or should ever have should go into her residuary bequest. Why should not this clear intent prevail? Why should any artificial rule be brought in and given a strained application, *236when its only effect is to defeat this actual intent of the testatrix ? It seems clear to me that that intent should prevail and be sustained by the decision of the court.