Opinion
October, 1918.
Harris, Corwin, Moffat Schek, for executors.
Alan Fox, special guardian for Hamilton Wade.
Jerome F. Donovan, special guardian for Harry Wade.
This is a question of title to a certain legacy by reason of ambiguity. The 5th paragraph of the will reads as follows: "To Harry Wade, son of my nephew, John H. Wade, the sum of $3,000." It appears that John H. Wade was a nephew of the testatrix, that he was married twice, having divorced his first wife, and by his first wife his oldest son was Hamilton Wade, but was always known and called by this testatrix as "Harry" Wade. By a second wife John H. Wade had another son christened Harry Wade, and the dispute arises as to which grandnephew was intended to take this legacy. It would seem at first glance that as there was only one boy by the name of Harry there is no ambiguity or question concerning the identity of the legatee. But this is not so. Considerable testimony was taken both before me and by commission sent to California, where the first wife of John H. Wade still resides with her son Hamilton, known to testatrix as Harry. This testimony leads me to believe that the testatrix meant to give the money to Hamilton Wade, the first son of her nephew, John H. Wade. She had a particular affection for this boy, as is shown by the undisputed testimony of numerous members of the family. Testatrix always called Hamilton "Harry." She was very much incensed with her nephew, John H. Wade, at the time he deserted his first wife, leaving the wife to shift for herself, and subsequently obtaining a divorce from her on grounds which do not appear. He then married another woman, by whom he had a son called Harry. Testatrix visited the Wades in California and inquired particularly about her "Harry," how he was doing and progressing.
After a careful consideration of all the evidence submitted I am of the opinion that the testatrix by the 5th paragraph of her will intended the legacy of $3,000 for Hamilton Wade, known to her as "Harry" Wade, a son of her nephew, John H. Wade. The decree may therefore be submitted on notice settling the account accordingly.
Decreed accordingly.