As the complainant in her bill does not call in question the act of the legislature dissolving the marriage contract, but admits its validity, and comes into court claiming rights notwithstanding she is no longer the wife of Thomas Bullock, the only question that can be raised is this: whether the *492words “ his wife,” as applied to the complainant in the bequest, are to be taken as mere words of description: if so taken, the rights of the complainant are not affected by the divorce ; but if the person taking must necessarily be the wife of Thomas Bullock, and take in that capacity, then her interest is at an end.
Tn cases of this description, the intention of the testator must govern: the difficulty is to arrive at it with a sufficient degree of certainty to satisfy the mind. From the best consideration I have been able to give this case, I Incline to the opinion that the testator intended that Rebecca, the wife of Thomas Bullock, should have a personal and individual interest in this bequest, and not simply an interest in it as the wife of Thomas Bullock, or a member of the family. And I draw this conclusion from the following circumstances.
1. She is mentioned by name. The interest is to be paid annually to the support, not of Thomas Bullock and his family, or Thomas Bullock and his wife and family, but of Thomas Bullock, and Rebecca his wife, and their children. Had Rebecca died, and Thomas Bullock married another wife, she could have taken no personal interest under this will either as wife or as one of the family. The persons to be benefited by the bounty of the testator are distinctly named ; and, as it regards the present complainant, it is the same as though the will had said, the interest should be paid annually to Thomas Bullock, and Rebecca Bullock, and their children. Even during the coverture the complainant had a vested beneficial interest in the annuity, -which could have been enforced against her husband.
2. If the defendants’ construction be true, that the complainant can only take as the wife of Thomas Bullock, then if it had so happened that Thomas Bullock had died in the life-time of the testator, his interest would have lapsed, and the complainant, though a widow, could have taken nothing, she not being at the time the wife of Thomas Bullock, the legatee. It can scarcely be imagined that this was the intention of the testator.
3. And again, if the defendants’ construction be the true one, then in case the husband, Thomas Bullock, had died at any time after the decease of the testator, the complainant’s interest would have ceased, she being no longer his wife, in the language of *493the will. No good reason can be assigned for such a construction. And that it would operate unjustly and with hardship, by taking away support and maintenance at a time when it would be most needed, is a sufficient inducement for the court to lean against it, and favor one more in accordance with the charitable intentions of the testator.
4. Another circumstance, which induces a conclusion favorable to the claim of the complainant, is this; that the testator, in directing the manner in which the other moiety or half part of the fund is to be appropriated, makes use of language entirely different from that used in relation to the first moiety, and excludes the complainant altogether from any direct interest in it. That moiety he directs his executors to pay, in their discretion, to the support and maintenance of his nephew Thomas Bullock and his family; that is to say, John B. Bullock and all the other children that may be born to the said Thomas during his natural life. The fact that the interest in this last moiety is confined expressly and guardedly to the use of Thomas Bullock and his children, shows that the distinction was made understandingly ; and is persuasive evidence that the testator intended, by constituting the complainant one of the objects of his bounty as to the first moiety, that she should have a direct and personal interest, which should be appropriated to her personal support. I can see no other reason for the difference made in the disposition of the two moieties.
Upon what grounds the parties were divorced, or which complained of the other, I am not informed. The bill simply alleges the fact of the divorce. The demurrer admits it as stated, and the court can look no further than the pleadings. I am not aware, however, that any developement of facts can change the legal rights of the parties.
Considering the case, then, simply upon the intention of the testator, as collected from the will itself, my conclusion is, for the reasons above stated, that the complainant is entitled to relief, and that the demurrer be overruled, with costs.
Demurrer overruled.