Opinion
Argued September 17, 1879
Decided September 30, 1879
J.J. Perry, for appellants.
Homer A. Nelson, for respondents.
The intention of the testator in the devises made to his children and for their benefit may, we think, be determined from the interpretation to be placed upon the terms of the will itself. A distinct recognition is made by the testator in his will of the fact that Catharine Shields was his lawful wife, and provision is made for her as well as the children of the deceased. In the second clause of the will he gives to "my beloved wife, Catharine Shields, the dwelling-house now belonging to me" * * * "to have and to hold the same unto my said wife during her widowhood," and if the house is sold with her consent, he directs that the proceeds be invested and the "income thereof be applied to her use during her widowhood," and upon her death or remarriage, he devises the same in equal shares "to my then surviving children." He also declares that in case he shall dispose of the same before his death, "I give to my wife the income of a principal sum equal to that at which I shall have so disposed of the same, to be enjoyed during her widowhood." Again, in the third clause, he creates a trust, and directs that the income, rents, or profits thereof shall be applied "to the use of my dear wife during her widowhood, and upon and after her death or remarriage," the capital to be divided as directed. In the same clause he declares that "the provisions contained in this will for the benefit of my wife are in lieu of all dower or thirds in my real estate." In the fourth clause he devises "to my dear wife" certain articles of personal property. In the eighth clause he appoints "my said wife the guardian of my infant children;" and in the eleventh appoints her one of his executors. The reference made in the various provisions cited to his wife evinces beyond controversy that the testator considered that Catharine Shields was his wife, that he had no other wife but her; and no question is made that any other person existed, so far as the will is concerned, who had any claims upon him as a wife. Catharine Shields being thus recognized and declared to be the wife of the testator, must be so regarded for the purposes of the will, and no one else could claim any such position under the same.
It is also quite clear that the children which are spoken of in the same will are and were the children of the testator and Catharine Shields. It is evident that these only were referred to, and none others have any rights whatever in that connection. It would be inconsistent with the whole object and tenor of the will, to hold that the testator intended to include children of another female, who was not named and whom he did not recognize as his wife. If such had been the design, it is fair to assume that he would have made provision to that effect, in terms which would have shown his intention in this respect beyond any question.
The appointment of Catharine as guardian of his infant children is very significant upon the question arising as to his intention, and utterly inconsistent with the idea that he recognized the children of Jane as his lawful children. It would be entirely contrary to any reasonable presumption, to hold that he designed to make Catharine, whom he recognized as his wife, the guardian of a minor child of Jane, whom he had not named in the will and whom he had not recognized as his own offspring. This fact of itself is almost decisive, and taken in connection with the other plain indications in the will as to his intention, is conclusive upon the question considered.
Giving full effect to the judgment obtained by Jane Shields in the action brought to recover her dower, and assuming that it established that she was the lawful wife of the testator, it is nevertheless apparent that he did not recognize her as such wife, from the time of his marriage with Catharine; that he lived with Catharine from that period until his death, treating her as his lawful wife and the children of Catharine and himself as his only lawful children. The will was evidently made in view of the facts referred to, entirely ignoring the children of Jane and without any recognition of them as children of the testator.
The sixth clause of the will of the testator which directs the executors, without naming the executrix, to divide the estate into sums which are named according to the number of the children surviving him, and that the same shall be held for the benefit of each child, is not inconsistent with the other provisions, and bears no indication that the testator intended to include the children of Jane. The omission of his wife as an executrix may be accounted for, by assuming that the testator supposed the executors were better qualified to perform this duty imposed. But even if it were otherwise, any inference that it was assignable to a different motive is overborne by the various provisions of the will to which we have adverted, all tending in the same direction and having reference to his wife Catharine and necessarily, as is apparent, to the children she had borne as the wife of the testator. The views expressed dispose of the case, without considering the other questions raised, which are, so far as material, fully discussed in the opinion of the General Term by GILBERT, J.
The judgment should be affirmed.
All concur.
Judgment affirmed.