Estate of Maxwell

This is an application on the part of Daniel Rogers and Charles Ashton, executors of the last will and testament of Richard Tybout Maxwell, deceased, for distribution, according to “the provisions of said will”; and the application involves a construction of the terms of said instrument, which (as usually occurs in cases where a man draws bis own will) has been variously interpreted according to the desire of the interested interpreter. The views of the court as to the correct construction are appended.

Where it is possible for the court, upon a reading of the whole will, to arrive at a conclusion that the testator necessarily intended an interest to be given, which is not bequeathed by express and formal words, the court should supply the defect by implication, and so mold the language of the testator as to carry into effect, as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared: Metcalf v. Framingham Parish, 128 Mass. 370 . See opinion of Mr. Chief Justice Gray, p. 374.

The law prefers a construction of a will which will prevent a partial intestacy to one which will permit such result (Vernon v. Vernon, 53 N. Y. 361 ,…