Iimas v. Neidt

(xKAN&Eit, J.

(concurring). I desire to say, as to my concurrence in the conclusion of the majority, that I think there is a departure from the rule stated in the dissenting opinion by Mr. Justice Deemer. I have long felt that the rule was at variance with the general and universal one, that the intention of the testator is the guiding star of testamentary interpretation, and that such intention is to be gathered from all the provisions of the will. In my judgment, the rule of the cases cited in the dissenting • opinion, in its application in this and other states, has so operated as to, in many cases, actually defeat the testator’s intention, as understood from an application of the rules stated, by which the intention is to be known. Such would be its effect if applied in this case, for I think no one can doubt that the rule of the majority opinion accords with the manifest intention of the testator, as gathered from all parts of the will. It seems to me we are forced to in some cases disregard one of the two rules, and I may say *358that the effect of our adherence to the rule indicated in the dissenting opinion as controlling, has in particular cases operated to defeat plain testamentary intentions. I know of uo sound principles of jurisprudence that should permit such a result. Age should be no. protection to a rule with such consequences. Esteeming, as I do, the rule that gives effect to the intentions of the testator, by considering all he has said in his testamentary acts, instead of a part of what he has said, as better adapted to meet the demands of the law, I shall be glad to, at any time, unite in making it controlling, when one of the two rules must obtain as against the other.