US SUPREME COURT DECISIONS

The will of B. G. contained the following clause:

"Also I give to my wife Elizabeth Goodwin all my personal estate whatsoever and wheresoever and of what nature, kind, and quality soever, after payment of my debts, legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely, the remainder after her decease to be for the use of the"

said Jesse Goodwin,

the son of the testator. Jesse Goodwin took a vested remainder is the personal estate, which came into possession after the death of Elizabeth Goodwin.

In this case it is impossible to mistake the intent. The testator unquestionably intended to make a present provision for his wife, and a future provision for his son. The intention can be defeated only by expunging or rendering totally inoperative the last clause of the will. In doing so, a long series of opinions, making the intention of the testator the polar star to guide in the construction of wills, must be disregarded, because we find words which indicate an intention to permit the first taker to use part of the estate bequeathed.

The first and great rule in the exposition of wills, to which all rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be "the legal declaration of a man's intentions, which he wills to be performed after his death." These intentions are to be collected from his words, and ought to be carried into effect if they be consistent with law.

In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning in which the testator used them.

The rule that a remainder may be limited after a life estate in personal property is as well settled as any other principle of our law. The attempt to create such limitation is not opposed by the policy of the law or by any of its rules. If the intention to create such limitation is manifested in a will, the courts will sustain it.

It is stated in many cases that where there are two intents inconsistent with each other, that which is primary will control that which is secondary.

Notwithstanding the reasonableness and good sense of the general rule that the intention shall prevail, it has been sometimes disregarded. If the testator attempts to effect that which the law forbids his will must yield to the rules of law, but courts have sometimes gone further. The construction put upon words in one will has been supposed to furnish a rule for construing the same words in other wills, and thereby to furnish some settled and fixed rules of construction, which ought to be respected. We cannot say this principle ought to be totally disregarded, but it should never be carried so far as to defeat the plain intent, if that intent may be carried into execution without violating the rules of law. It has been said truly

"that cases on wills may guide

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us to general rules of construction, but unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills."

In the circuit court, John Smith T. instituted an action of trover against Robert Bell for the recovery of the value of certain negroes named and described in the declaration. The defendant pleaded not guilty, upon which plea issue was joined.

The facts of the case were agreed by the parties, and the plaintiff moved the court for judgment for $2,615.62.5, the agreed value of the negroes; if the court should be of opinion that the plaintiff was entitled to recover.

Upon the case agreed, the following questions arose upon which the judges of the court were divided, and the division was certified to this Court: whether by the will of Britain B. Goodwin, Elizabeth Goodwin had an absolute title to the personal estate of Britain B. Goodwin, or only a life estate, and also whether Jesse Goodwin, the son of Britain B. Goodwin, by said will, had a vested remainder that would come into possession on the death of said Elizabeth; or was said remainder void.

The facts of the case agreed were as follow:

That Britain B. Goodwin, a citizen of the State of Tennessee and resident in the District of East Tennessee did, on 17 October in the year of our Lord 1810, make and execute his last will and testament in the words and figures following, to-wit:

"In the name of God, amen. I, Britain B. Goodwin, of the State of Tennessee and County of Roane, yeoman, being mindful of my mortality, do, this 17 October in the year of our Lord 1810, and thirty-fifth year of independence of the United States of America, do make and publish this my last will and testament, in manner following:"

"First, I desire to be decently buried in the place where I shall happen to die; also, I give and bequeath

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unto my son, Jesse Goodwin, my young sorrel gelding and one feather bed, to be delivered to him by my executrix after my decease; also I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresover and of what nature, kind, and quality soever, after payment of my debts, legacies, and funeral expenses; which personal estate, I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely; the remainder of said estate, after her decease, to be for the use of the said Jesse Goodwin, and I do hereby constitute and appoint my said wife Elizabeth Goodwin sole executrix of this my last will and testament."

"In witness whereof, I have hereunto set my hand and seal, the day and year above written."

"his "

"BRITAIN B. + GOODWIN [L.S.]"

"mark"

The foregoing will is duly witnessed, proved, and recorded.

"It is further agreed that said Britain B. Goodwin departed this life in the month of October, 1811; that his wife, the said Elizabeth Goodwin, named in the foregoing will, took into her possession all the personal estate of said Britain B. Goodwin, under the bequest in said will to her, and retained the same until the month of November in the year of our Lord 1813, when she intermarried with Robert Bell, the defendant in this suit; that she and Robert Bell kept the possession of said personal estate till the latter part of the year 1826, when the said Elizabeth Goodwin died. Said Robert Bell has kept the possession of said personal estate ever since, claiming the same as his own, under the bequest in said will to his said wife Elizabeth; among which are the following named negroes, to-wit, Lucy, aged about forty-five; Jack, aged about twenty-six; Sophia, aged about twenty-four; Harry, aged about twenty-one; Alexander, aged about nineteen, and Ned, aged about thirteen, which said negroes are admitted to be of the value of $2,325; which sum, with interest thereon from the 1st day of September, 1827, at which time said negroes were demanded of defendant by plaintiff's agent, and it is agreed the said sum and interest would amount

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to $2,615.62.5, which last sum is sought by plaintiff to be recovered of defendant in this action of trover. It is further agreed that said Jesse Goodwin, the person named in the will of Britain B. Goodwin, did in due form execute to John Smith T., the plaintiff, the following bill of sale, to-wit:"

" I have sold to John Smith T. all my right, title, interest, and claim to the estate of my father, Britain B. Goodwin, and I do hereby authorize the said John Smith T. to bring whatever suit or suits may be necessary to recover all of the property I am or may be entitled to from the said estate; to act in all cases as he, the said John, may think proper, and to convert the property he may recover to his own proper use, and give any receipts or acquittances in my name which may be necessary, hereby vesting the before named John Smith T. with all the power I could use in my own proper person, were I personally present, for value received."

" Witness my hand and seal this 31 Marc, 1815."

"JESSE GOODWIN [L.S.]"

Said bill of sale has been duly proved and registered, in pursuance of the statute of the State of Tennessee in such cases made and provided. chanrobles.com-red

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