Gould v. Trenberth , 61 R.I. 5 ( 1938 )

dissented from the conclusion of the rest of the court, though the position of the plaintiff was very much weaker than is the position of the complainant in the instant case. Here the doctrine of repugnancy is not at all involved, for the reasons that the interests which the testatrix showed her intent to create would come into operation concurrently and not one after and cutting short the other, as in cases of repugnancy, and that there is no language in the first part of the clause in question with which the language of the rest of the clause is inconsistent. Therefore we should give the latter language its natural and most reasonable construction; and we see no inconsistency between our conclusion, above stated, in the instant case and the reasoning and decision of the majority of the court in Tillman v. Ogren, supra.

The respondent also relies on Harkness v. Zelley,100 N.J. Eq. 48, 135 A. 347. There the testator gave, devised and bequeathed the residue of his property to Alice M. Harkness "absolutely for her sole use and benefit forever, . . . with the request and understanding that she will provide by a last will and testament that should she decease before my brother Charles E. Zelley that he shall have the income from what may remain of my estate for and during the term of his natural life. . . ." It was held that Charles E. Zelley received no enforceable right. There the word "request" greatly weakened the effect of the word "understanding", and the use of the word "will" instead of the word "shall" strongly indicated a wish by the testator, rather than an intention to impose a legal duty upon the first taker.

But the most important feature of that case, which most obviously differentiates it from the instant case, is that, if the latter part of the clause, beginning with the words "with the request", had been construed as imposing an enforcible duty on the legatee and devisee, it would certainly have been repugnant to the clear and definite language of the first part of the clause. The decision was plainly based on this repugnancy and it does not support the contention of the respondent in the instant case.

We are of the opinion that under the proper construction of the will of Jennie H. Taber, now before us, the respondent was given the residue of the estate of the testatrix subject to a valid charge thereon for the care of the complainant, so long as the complainant should survive the testatrix.

On June 15, 1938, the parties may present to this court a form of decree, in accordance with this opinion, to be entered in the superior court.