refusing to apply technical rule because “[t]he words used by the testator in the will ... are plain and simple,” and according to “their usual and ordinary meaning, ... the conclusion is inescapable that the word ‘wife’ ... was intended to mean the wife surviving [the testator]”
How later courts described this case
- refusing to apply technical rule because “[t]he words used by the testator in the will ... are plain and simple,” and according to “their usual and ordinary meaning, ... the conclusion is inescapable that the word ‘wife’ ... was intended to mean the wife surviving [the testator]”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Justice Bell:
I disagree with the majority’s interpretation of Buzby’s will and codicil, which of course must be read and construed together. So reading them, the testator disposed of his residuary estate as follows:
“The balance of my estate I bequeath equally to my children, Percival W. Buzby, Charles E. Buzby, Jr. and Elsie W. Bowen, with the proviso that the share of P. W. Buzby be placed in trust, the income from said trust to be paid to P. W. Buzby and following him, wife [Rita M. Buzby] and children, [but] . . . should P. W. Buzby die before his wife, Rita M. Buzby, ... in lieu of receiving the income from his full share, . . . she receive an annuity of |1500 per annum, the balance and principal to be divided equally among the surviving grandchildren.”
This "was not a gift to Percival’-s wife or widow-— this by its express terms was a gift to Percival’s wife “Rita”. The testator having clearly declared his testamentary intent to give Pereival’s “wife Bita M. Buzby” *12 an annuity oí $1500., we are not at liberty to rewrite bis will and give tbe income from Percival’s share to a person unknown to and unprovided for by the testator, namely, Percival’s third wife whom he married 10 years after testator’s death.
I would affirm the Decree of the court below.