Doe Lessee of Poor v. Considine/Dissent Grier

Mr. Justice GRIER (with whom concurred CLIFFORD, J.), dissenting.

I cannot let this case pass without expressing my entire dissent from the conclusions of the majority of my brethren, both on the construction of the will of William Barr and the statute of descents of Ohio.

In the construction of a will the first great rule-one that should control and govern all others-is, that the court should seek the intention of the testator from the four corners of his will. All technical rules, from Shelley's case down, were established by courts only for the purpose of effectuating such intention. But it is easy to pervert the testator's intention by an astute application of cases and precedents, of which the present case is the last example of many which have preceded it, and where the testator's intention is entirely defeated by the application of rules intended to effectuate it. The remainder in fee to the children of John M. Barr was not to vest till the decease of Maria Barr. 'And upon the decease of said Maria, I devise the remainder of my estate to the legitimate child or children of John M. Barr and his heirs forever, remainder over to the testator's sons-in-law in case of failure of such issue of the son.' Such is the language. By construing the remainder to vest before 'the decease of Maria Barr,' the executory devise to the sons-in-law is entirely defeated, and the clear intention of the testator frustrated by factitious rules intended to facilitate its discovery.

It often happens that legislative acts require the same liberal rules of construction as wills, where the testator is presumed to be inops concilii. It only requires the reading of the fifth section of the statute before the fourth in order to effectuate the intention of the legislature, and to clear it from the absurdity of giving an intestates estate, not to his next of kin, but to his brothers and sisters, instead of his own children.

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