Baxter v. Baxter

¶1The general intent of the testator in the 32d clause of the will does not appear to us to admit of any doubt. He clearly intended that the residue of his property should be equally divided among his brothers and, sisters, and their issue by right of representation, with no other qualification than that the share of his brother Allen should be held in trust in such a manner that he should have the income for life, and that upon his decease his share should go to the other relatives. The will shows throughout that the provision made by the testator for his brother Allen was in the form of an income for his life, and not in placing any fund at his absolute disposal. The equal division contemplated by the testator could only be a division into sevenths. No reason is suggested why Allen should have had in any form more than one of these sevenths, and, taking the whole will together, we think that no such intent on the testator’s part can be inferred. It is a well established rule of construction that the general intent of the testator, as gathered from the whole will, is not to be defeated by language of a doubtful and uncertain meaning contained in a single clause. Williams v. Bradley, 3 Allen, 270. The clause in question, although not expressed with strict technical accuracy, must be taken as meaning that, in making the division into equal parts, one of these parts is to be held in trust for the benefit of Allen Baxter, according to the terms of the will, and that he takes no interest in the remaining six. Decree affirmed.