From the importance of the questions which I am called upon to consider in this case, I have been induced to examine it with great care. The settle
By the codicil, or, as it may with propriety be called, the last clause of the will, (since it is an express confirmation and republication of the will and the whole is made to speak from that time as one instrument,) it is declared, that this after-born child shall have an equal share of the property with the other children, notwithstanding it may have been thereinbefore appropriated.
If in the previous part of the will the testator had simply given to his five children the whole of his estate, equally to be divided between them, or, to each an equal fifth part thereof, there would have been no difficulty under the latter clause or codicil: because, then their shares being equal and the complainant coming in for an equal share with the rest, the estate would have to be divided into six instead of five parts. The difficulty arises from the circumstance of the testator’s other children not taking equal shares or parts in the whole estate, but only in the residue, after the particular bequests and devises are satisfied. On this account, it is said, the complainant cannot have an equal share with the others, because they are all unequal among themselves.
This argument is endeavoured to be surmounted by recurring to what is given to Catharine, as being the common measure or standard of equalization; and it is urged, that the testator has there pointed out what is to be deemed an equal share of his “ property,” in the sense in which he has subsequently used this expression; and such equal share is said to consist of the sum of four thousand dollars for .a marriage portion, a house and lot of the value of the house and lot devised to Catharine, and an equal proportion of the residue" according to the number of the children. If the language of the will sufficiently indicates such to be the intention, it is proper to adopt it as the criterion for an equalization. The words relied upon are these: “ to the intent that she may re- “ ceive as much as my other children, to all of whom I have
The houses, and lots devised to" the daughters were probably of different values; and if the one given to Catharine should prove to be -the greatest in worth, it would still afford no reason why it should not, in conjunction with the four thousand dollars, be considered the standard: because it might only show that she had previously received less from her father than the other children. No house, it is true, is devised to the son; but this again does not form an objection-.to the present mode of considering the subject: because it is tobe inferred from the will, indeed, the paroi evidence shows, how a house" and lot were conveyed by the father to the son. I see no insuperable objection to the admissibility of this fact from extrinsic evidence.
Having thus arranged the bequests of specific parts or portions of his property to his then children, by putting them upon an equal footing, he proceeded to dispose of the residue of his estate in equal parte among them, giving to each a fifth thereof,
When he came to republish the will and make á codicil, he undertook to provide for an after-born child or children and so as to put such latter child or children upon an equal footing with the rest. This is not left to conjecture. It is clearly expressed.
The codicil, as it has been before remarked, forms a part of the will; by attraction, the latter is brought down to the former; and the whole is made to speak as one instrument from the time the codicil is made. What, then, is the language of the whole combined 1 I have shown what must have been deemed by the testator as an equal share among his children under the will; and I see nothing in the codicil to change this view. The after-born child is to have an equal share with the other children. This is plain and intelligible: but, an equal share of whatl The testator says, “ of my property.” Here .lies all the difficulty. The testator’s “ property,” it is insisted, was-only such as belonged to him at the time and -did not embrace the estate which he had actually parted with to his children before making the will; and hence it is urged in argument, that, in determining the question upon the words “ an equal share of “ my property,” regard can only be had to the property passing by the will, and also, since there is no equality in the shares of the other children, (except under the residuary clause) the complainant can only come in with them for an equal, share of this part of the estate. If, however, I am correct in the view before taken, as indicative of the testator’s intention, the first part of this proposition must fail. The testator -holds out in his will the idea of an equal share among his children; and founds it upon the previous advances made to some of them coupled with the future gifts. The phrase “of my property,” as used in the codicil, must be made to yield in order to effectuate the intention thus expressed. In Vauchamp v. Bell, Q.Mad. 346, Vice-Chancellor Leach says, “ If by giving to the words, which a “ testator has used, their literal and technical effect, inconsistent “ and absurd conclusions must necessarily follow, and if by “ understanding such words more largely, the whole will would “ be rendered rational and consistent, the court which departs
If the foregoing be not the true construction to be given to the will and codicil, there is only one other which can, by any possibility, be resorted to, without doing violence to the language: namely, to consider a tenancy in common created between the complainant and the other children in all the property specifically devised to each of them. Should this construction be adopted and the literal import of the words of the codicil be adhered to, it would seem to follow that the complainant would take nothing less than a moiety of each specific bequest, which certainly could not have been intended by the testator; nor do I believe the will necessarily requires a construction which shall, create a tenancy in common as to one-sixth and thereby subject the other daughters to embarrassment. Yet, if there be not a residuum sufficient to make up the cdinplainant’s share,-I do not see how this consequence can be avoided.
As respects the other branch of the argument: that the complainant’s share is limited to the residue, and it is only in this she is entitled to an equal share, I cannot admit it to be well founded. Such does not appear to be the meaning or fair construction of the will. The clause which gives her the share in question has an express reference to all the testator’s pro
Upon the whole, I am'of opinion this posthumous child is entitled to more than an equal share in the residuary estate ; and, I must decree, that the sum of four thousand dollars, and a further amount equal to the value of the house and lot devised-to his daughter Catharine, are to bo set apart and -appropriated, out of the moneys or assets in the hands of the executors, to the benefit of and as belonging to the complainant and to go towards equalizing her share. She is also to'come in for a sixth part of the residue with the other children.
The next question, no less important than the preceding, is, whether the 'complainant’s share is subject to the same trusts and limitations as are declared by the will in respect to the shares of the other daughters 1 It is obviously necessary "to settle this point now. The executors Will then know how to act in regard to the investment or payment over of "the funds belonging to the complainant. -If she takes upon the same terms as the other daughters, the four thousand dollars must remain in the hands of the executors until the day of her marriage, arid, in the mean time, only the interest can be applied to her use. Adopting the same mode of argument with respect to the sum to be appropriated in the place of a dwelling-house, she can only have" a life estate in this, subject to the special limitations over; while her. share of. the residue must be taken and held by the executors upon the trusts prescribed in relation to the other daughters’ shares. If, on the other-hand, the devise to her is absolute and without any special limitations or trusts, then the executors have only to pay or deliver over her share under the directions of the court; and be discharged from all' further responsibility concerning this part of the estate. In examining the question, I have met with
The present question is not upon the executory trusts and limitations contained in the will. It i¬, as to what may be
I am of opinion she must take upon the same terms and subject to the same trusts and limitations as the other daughters ; and that the executors are trustees for her as well as for them.
The court then went into an enquiry in order to ascertain whether the son of the testator was to b'e considered as a partner with the father in matters of business, but as this part of the case did not involve any points of general interest, the remainder of the opinion is not given.