Graham v. Graham. hibited to make a certain disposition of the property, and the mode of executing that intention is erroneously, defectively or illegally prescribed in the will, and not to cases where there is a clear intention to effect another purpose distinct and differing from the general object. If the testator uses language which can be construed so as to carry the general intent and purpose into effect, it is the duty of the court to so construe the language as to accomplish that object, but the court is not authorized to supply omissions by adding words even for such a purpose. The testator must express his intention or use such language as will enable the court to ascertain what his intention is in order to make it effectual. Pickering v. Langdon, 22 Me. 413. When implications are allowed they must be such as are necessary or at least highly probable, and not merely possible. In construing a will conjecture must not be taken for implication. Necessary implication means so strong a probability of intention that any intention contrary to that imputed to the testator cannot be supposed. The whole will taken together must produce the conviction that the testator's intention was to create the estate raised by implication. McCowry v. Leek, 14 N. J. Eq. 70. I will give from a number of the adjudicated cases some instances of the supplying of words. In Lynch v. Hill, 6 Munf. 114, it was held that in supplying words in a will it is the most correct course to supply such only as it is evident the testator intended to use and not such also as would be necessary to effectuate the supposed intention of the testator. In that case the words of a contingent limitation being "in case S. N. C. without issue of body lawfully begotten then," etc., the words "die" and "her" may be supplied as evidently intended by the testator, but not the word "leaving," which he might not have known to be necessary in law to give the limitation effect, and therefore might not have intended to use. In Dew v. Barnes, 1 Jones Eq. 149, the provision of the will was "if either of my should die without a lawful heir, the longest lived heirs the whole of both estates." BATTLE, J., said: "The word 'either,' taken by itself, signifies one or another of any number, but it is here confined to two by force of the word 'both,' which signifies 'two' considered as distinct from others or by themselves. The omitted word or words then is or are 'sons' or 'two sons; and it is so plain that such and no other was the testator's meaning, that no argument can make it plainer." Graham v. Graham. In Sessoms v. Sessoms, 2 Dev. & B. 453, the word "dollars" was supplied after the words "five hundred" it being clear from the will that that was the intention. In Geiger v. Geiger, 4 McCord, 418, in a bequest to a wife the testator said: "All my household furniture and the increase of the said negroes during her natural." The word "life" was supplied. In Reid v. Hancock, 10 Humph. 368, the bequest was: "I give to my wife all my property during her widowhood, until my chil dren become of lawful age. After that event I wish it equally divided among them." It was held that the manifest intent of the testator to give all his property to his wife during her widowhood or until his children should become of lawful age, and on the happening of either of these events to divide it equally between the wife and children; and to carry out manifest intention the court will supply words and disregard strict grammatical construction. In Kellogg v. Mix, 37 Conn. 243, the language of the will was: "After paying my debts I give to my beloved wife C. in trust for the maintenance of herself during her life and of my daughter E. so long as she remains single; and to my son G. $400 a year to be paid to him by my trustees." A previous clause had given the entire estate to trustees for the purposes to be stated in the will. No other disposition of the income, which was over $4,000 a year, was made during the life of the widow; but the income was given to the children after her death, and any appropriation of any part of the principal of the estate before her death was forbidden, unless with her consent; and there was a provision that she should have the entire use of her portion of the estate until her death. Held, that it was clear that the testator intended to give his widow the net income of the estate during her life, except the $400 given to his son, and that these words should be supplied in construing the legacy to her. In McKeehan v. Wilson, 53 Penn. St. 74, it was held, that when the omission or insertion of words has left unexpressed or wrongly expressed what from the whole tenor of the will was the intention of the testator, the court will permit the will to be read as if the words had been inserted or omitted. But this is to be done only when such intention is clear beyond a reasonable doubt by the will itself, except in some cases of latent ambiguity. The rule applies VOL. XLVIII-47 Graham v. Graham. to a defectively expressed intent. If from the will the intent cannot be gathered, words cannot be supplied to disclose an intent. In that case it was held, that the word "children" may include "grandchildren," where succession is evidently intended. In Zerbe v. Zerbe, 84 Penn. St. 147, the testator's will contained this clause "First, I give and bequeath unto my son Edward and Peter and my daughter Catharine and Mary, my daughter's children Daniel, John, Elizabeth and Emma Mull they shall stand in equal shares, that is to say Mary's children shall have the share of their mother. Item, my son Daniel and Jarrett and my daughter Sarah and Louisa's child Edward Hummel they shall have nothing of my estate, they have more now than their shares would come to. Last and also I appoint my son Edward and John Zimmerman farmer as my executors of this my last will and testament and they shall have a right to sell the property and make it into money, when they think fit to do so, or when it will bring the most money." Held, that this will carried all the real and personal estate of the testator to those mentioned in the first clause, and that the word "estate" belonged to the first clause of the will as well as the second, and that the word "shares" in the first clause corresponds to the same word in the last clause, and both refer to the same estate. 66 In Varner's Appeal, 87 Penn. St. 422, the testator devised all of his estate to trustees, to pay over the income of one-half thereof to his granddaughter until she attained the age of twenty-five years, and then to convey to her in fee the one-half of his estate, subject to the payment of its pro rata share of the annuities hereinafter charged on my said estate." In another clause of his will he directed the income of the other half to be paid to his two nephews and a niece in equal shares, and when the youngest of them attained the age of twenty-one years, their shares should be conveyed to them in fee, "subject to the pro rata share of the annuities hereinafter charged upon my said estate." In two separate clauses he created annuities and made them an express charge upon the shares of the nephews and the niece, but made no mention of the granddaughter in either of these clauses. Commissioners were appointed to make partition of the estate, who divided the same into two parts and charged each with the payment of one-half of the annuities. which charge the court sustained, on the ground that it was the manifest intent of the testator to charge both parts of his estate, and Graham v. Graham. that it was evident that the name of the granddaughter had been omitted by mistake in the clause giving the annuities. Held, reversing the court below, that the name of the granddaughter could not be thus supplied, and that her share was not subject to the burden of the annuities; that words can only be supplied in a will, where they are necessary to give effect to the unquestionable purpose of a testator, but where they will not advance this intent, no such change can be made. In Cleland v. Waters, 16 Ga. 496, a testator, after naming sundry slaves male and female, adds: "On account of the faithful services of my body servant, William (the husband of Peggy), I will and do devise his emancipation or freedom with the future issue and increase of all the females mentioned in this item of my will. If it is incompatible with the humanity, etc., of the authorities of the State of Georgia, I direct my qualified executor to send the said slaves out of the State of Georgia to such place as they may select; and that their expenses to such place be paid by my executor out of my estate, and the whole proceedings be conducted according to the laws and decisions of the State of Georgia, I having no desire or intention to violate the spirit or intention or policy of such State." "I desire that the said slaves, if compelled, may select their residence out of the State of Georgia and in any part of the world." The will directed the forfeiture of the interest of any legatee, who might resist said item. Held, that the intention of the testator was to manumit all the slaves mentioned in that item of the will; that where a will is absurd or ambiguous, as it stands, the court may supply words to carry into effect the intention of the testator, when that intention is clearly manifested. What effect have prior or subsequent words upon the operative part of the will? It might be insisted that the language used in the codicil shows what the testator meant by the words used in the operative part of the will. In Burton v. White, 1 Exch. 525, the testator used this language: "I give and bequeath to my son George the lease of the farm I rented of Lord L. for his own use and benefit, and also half an acre of freehold land adjoining that one acre of copy-hold land." The will contained other devises, and at the end was this passage: "And I give and bequeath and order the rents or interests, that is behind, due and unpaid, shall go and be paid to that person I have left the estates and properties respectively to. As to all the rest, residue and remainder of my property Graham v. Graham. to a defectively expressed intent. If from the will the intent cannot be gathered, words cannot be supplied to disclose an intent. In that case it was held, that the word "children" may include "grandchildren," where succession is evidently intended. to. In Zerbe v. Zerbe, 84 Penn. St. 147, the testator's will contained this clause "First, I give and bequeath unto my son Edward and Peter and my daughter Catharine and Mary, my daughter's children Daniel, John, Elizabeth and Emma Mull they shall stand in equal shares, that is to say Mary's children shall have the share of their mother. Item, my son Daniel and Jarrett and my daughter Sarah and Louisa's child Edward Hummel they shall have nothing of my estate, they have more now than their shares would come Last and also I appoint my son Edward and John Zimmermau farmer as my executors of this my last will and testament and they shall have a right to sell the property and make it into money, when they think fit to do so, or when it will bring the most money." Held, that this will carried all the real and personal estate of the testator to those mentioned in the first clause, and that the word estate" belonged to the first clause of the will as well as the second, and that the word "shares" in the first clause corresponds to the same word in the last clause, and both refer to the same estate. 66 66 In Varner's Appeal, 87 Penn. St. 422, the testator devised all of his estate to trustees, to pay over the income of one-half thereof to his granddaughter until she attained the age of twenty-five years, and then to convey to her in fee the one-half of his estate, subject to the payment of its pro rata share of the annuities hereinafter charged on my said estate." In another clause of his will he directed the income of the other half to be paid to his two nephews and a niece in equal shares, and when the youngest of them attained the age of twenty-one years, their shares should be conveyed to them in fee, "subject to the pro rata share of the annuities hereinafter charged upon my said estate." In two separate clauses he created annuities and made them an express charge upon the shares of the nephews and the niece, but made no mention of the granddaughter in either of these clauses. Commissioners were appointed to make partition of the estate, who divided the same into two parts and charged each with the payment of one-half of the annuities. which charge the court sustained, on the ground that it was the manifest intent of the testator to charge both parts of his estate, and |