Trigg & wife v. King's representative , 1 Rand. 252 ( 1822 )

December 14.

Judge Brooke,

delivered the opinion of the court.^*

The court is of opinion, that the words of Wm. King, the testator, used in the devise to the female plaintiff, and Elizabeth Mitchell, his two nieces, are not so imperative as to compel the court to adopt a construction of them, in conflict with the intention of the testator, to be collected from that and other parts of the will. It is evident to the court, that the testator believed himself able to give to his two nieces B 10,000 each. He assigns in the clause the reasons why they were his favourites. That sum is given in the preceding clause to his nephew, Connally Findlay, and, as is said by the chancellor, seems to be a favourite one. The devise to the young man who should remain in his service at his decease, is clearly a several devise, though the language would equally seem to import a joint interest in the legatees. The words in the clause in question, are, “ to « my nieces, Elizabeth Findlay and Elizabeth Mitchell, . . . , t , w S 10,000 in twelve months alter marriage, provided they “are then eighteen years of age; if not, at the age of “ eighteen.” It is true the language imports a joint interes^ i but, in effect, must be understood as intending a several interest. It was improbable that his two nieces would marry at the same point of time ; nor does it appear that they would arrive at the age of eighteen at the same period. He must have intended that each of his nieces should have g 10,000 at the periods mentioned, or it is believed he would, have used other words, or have added some in explanation. On the whole, the court is of opinion, that the female plaintiff was entitled to receive g 10,000 at the expiration of twelve months after marriage, if she was then eighteen; or, at the age of eighteen, if then unmarried.

The decree dismissing the hill is therefore reversed, and the cause remanded for further proceeding, according to the principles of this decree.

* This canso having been argued before the appointment of Judge Green, he did not sit in it.