Opinion
(June Term, 1843.)
Two brothers inherited land from their father, which was divided between them. They were also equally entitled to the reversion in another tract of land which had been allotted to their father's widow, Charlotte Detheridge, as her dower, and on which she resided. One of the brothers died intestate and without issue, leaving the other brother his heir at law. This brother afterwards died, leaving a will. By one clause of this will he devises as follows: "Having understood that it is the prevailing opinion among a number of people that I am the proper heir to the estate of my brother, Philemon Detheridge, deceased, and not knowing the law in such cases, and being desirous that my sister-in-law, Elizabeth Detheridge, should heir the same, and to prevent disputes that might arise concerning said estate, I give and bequeath to my said sister-in-law, Elizabeth Detheridge, widow of my brother Philemon, deceased, all my right, title and interest to that estate and every part thereof; and further, it is my will and desire that the above clause should be distinctly understood that it is my will and desire that my said sister-in-law, Elizabeth Detheridge, should heir that estate, and every part thereof, real and personal, notwithstanding the laws of my country might or would make me the proper heir to the same." In a subsequent part of the will the testator thus devises: "And, furthermore, it is my will and desire that my executor sell, at the death of Charlotte Detheridge, my lot or tract of land whereon she now lives, and whenever to the amount of $600 in the hands of the executor, I give and bequeath that much ($600) to I. A. J., T.H.J., G.D.J., J. J., C.T.J. and F.G.J., children of my uncle J. J., to be equally divided between them, giving each one hundred dollars; and whatever money is then remaining in the hands of my executor, my will and desire is that it be equally divided between the children first named, Patsy Detheridge, Sally Dalton, William Dalton, Elizabeth Dalton and James Dalton, giving Patsy Detheridge one-sixth part": Held, that the moiety of the dower of land which had belonged to the deceased brother did not pass under the latter, but was included and devised in the former of these clauses.
THIS bill was filed in ROCKINGHAM Court of Equity, (522) and answers having been put in, the cause was set for hearing upon the bill and answers, and at Spring Term, 1843, of that court was ordered, by consent of parties, to be sent to the Supreme Court for hearing. The facts of the case were these:
George Detheridge, formerly of the county of Rockingham, died intestate many years since, seized of a large real estate, which descended to his two sons, Robert and Philemon, as tenants in common. Partition was made between them of all this estate, except a tract of 250 acres, which was allotted to Charlotte, the widow of George D. Detheridge, as her dower, and remained undivided. Philemon died intestate and without any lineal descendant, and Robert was his only heir at law. Robert died about 1817, and upon the construction of his will depends the decision of the controversy before us. In a part of this will the testator thus expresses himself: "Having understood that it is the prevailing opinion among a number of people that I am the proper heir to the estate of my brother, Philemon Detheridge, deceased, and not knowing the law in such cases, and being desirous that my sister-in-law, Elizabeth Detheridge, should have the same, and to prevent disputes that might arise concerning said estate, I give and bequeath unto my said sister-in-law, Elizabeth Detheridge, widow of my brother Philemon, deceased, all my right, title and interest to that estate, and every part thereof; and further, it is my will and desire that the above clause should be distinctly understood that it is my will and desire that my said sister-in-law, Elizabeth Detheridge, should heir that estate, and every part thereof, real and personal, notwithstanding the laws of my country might or would make me the proper heir to the same. "In a subsequent part of the will the testator thus expresses himself: "And, furthermore, it is my will and desire that my executor sell, at the death of Charlotte Detheridge, my lot or tract of land whereon she now lives, and whenever to the amount of $600 in the hands of the executor, I give and bequeath that much ($600) to James A. Joyce, Thomas H. Joyce, George D. Joyce, Joseph Joyce, Charlotte T. Joyce and Felix G. Joyce, children of my uncle (523) James Joyce, to be equally divided between them, giving each $100; and whatever money is then remaining in the hands of my executor, my will and desire is that it be equally divided between the children first named, to wit, Patsy Detheridge, Sally Dalton, Robert Dalton, William Dalton, Elizabeth Dalton and James Dalton, giving Patsy Detheridge one-sixth part."
Charlotte Detheridge having died, the plaintiffs, who are entitled under the last-mentioned clause of the will of Robert Detheridge to the ultimate proceeds of "the lot" or tract of land thereby directed to be sold, filed this bill against the defendants, who are the heirs at law of Elizabeth Detheridge, the widow of Philemon Detheridge, claiming that the last-mentioned clause of the will of Robert Detheridge applies to and embraces within its operation the whole of the tract whereon the testator's stepmother then resided, and therefore pro tanto repeals and makes void the disposition unto Elizabeth Detheridge of the undivided half thereof, which had belonged to her husband, the testator's brother Philemon, or, if this be not the effect of such conflict between the two clauses, then the latter so modifies the former as to permit the said Elizabeth to take thereunder but an individual part in the moiety, which had been of her husband, in common with the plaintiffs. The defendants insist in their answer that upon the whole will it is apparent that the testator directed the sale of that moiety only of the tract which he held in common with his brother Philemon, and that the defendants are entitled exclusively to the other moiety under the gift to their mother of all the interest of the testator in the real estate of his said brother.
Morehead for plaintiffs.
No counsel for defendants.
In the interpretation of wills it is the clear duty of the Court to give effect to each and every part of the instrument, and, if it be possible, to reconcile all seeming (524) repugnances between its different provisions. As the instrument is an entire act, intended to operate altogether and at the same moment, it is not to be admitted, unless the conclusion be irresistible, that the testator had two inconsistent intents, and has left a declaration of both these inconsistent intents as constituting a law for the disposition of his property. Now, nothing can be more explicit than the language of the testator in the gift to his brother's widow. Doubting, indeed, whether he was the heir of the deceased brother or not, and therefore cautiously abstaining from calling any part of that property his, but describing it simply as "the estate of his brother Philemon," he declares, nevertheless, again and again, that if he be the heir to the estate of his brother, then he gives all his right and interest therein, and every part thereof, to his brother's widow, so that she shall heir the same and every part thereof, real and personal. When the testator subsequently proceeds to give directions with respect to the disposal of what he calls " my lot or tract of land whereon Charlotte Detheridge lives," it is impossible to suppose that he had forgotten the gift made to his brother's widow of his brother's moiety of that land, so far as he had or could pretend any right or interest therein, and it is exceedingly improbable that he meant to recall it either in whole or in part. Now, the two dispositions are perfectly reconciled by understanding the testator, when using the phrase " my lot or tract of land," as designating that which was his certainly as contra distinguished from that moiety or lot which he had already disposed of "as his brother's estate," and in respect to which he doubted whether it was his or not. The bill, we think, must be dismissed with costs.
PER CURIAM. Decreed accordingly.
(525)