The adult parties interpose no objection to having the devise and bequest of the testator to his daughter Mrs. Sturges, extended so as to vest the Same in her children at her death ; conceding that such was the intention of the testator. The counsel in behalf of the infant defendants, who can assent to nothing, very properly submits their rights to the judgment of the court.
If the court were at liberty to act upon parol testimony of the testator’s intention, nothing can be clearer or more satisfactory than the evidence in this case.
The positive testimony of the counsel who drafted the will, and of T. S. Cargill, the executor and one of the sons, (who testifies against his own interest;) together with the production of the identical draft which was read over to the testator and approved by him, and the circumstances of the family; do not leave a shadow of doubt, but that the testator supposed when he executed the will, that it contained the limitation over to his daughter’s children, which is found in the draft.
But this in general, is a dangerous species of testimony. More caprice and instability of purpose is exhibited in testamentary dispositions, than in any other of the transactions of men which come under review in courts of justice. It is the testator’s will ; and however strange or fickle it may seem, the will when expressed, must govern. And it is therefore said that in no instance will parol evidence be admitted in contradiction to the words of a will.
In this case the parol evidence will add a clause to the will, which may take one fifth of the estate, after the death of Mrs. Sturges, from the other devisees and give it to her chil*321dren. This is the direct consequence, unless the devise to her children can be collected from the will itself; or unless the words are so doubtful and ambiguous,, that a portion of the will must fail, without the aid of some extraneous light to determine the doubt.
If upon the construction of the residuary clause, the bequest of the residue is directly to the children, without any restriction in favor of the grandchildren ; the infant defendants would have no1 interest in the question,, and the difficulty would be removed. The construction of that clause may operate upon interests not represented here, to such an extent, that I prefer to waive it, if a satisfactory conclusion can be attained on the other point.
To return then to the alleged mistake. Upon the will itself, the general intent of the testator is plain.- The scope of the will is to distribute his estate in five equal or nearly equal portions, to the five branches of his family composed of four sons and one daughter.
He first makes a suitable provision for his wife. The very next object of his regard, appears to have been Mrs. Sturges. Her husband appears by the will, as well as by the extrinsic evidence, to have been incapacitated- in the testator’s opinion, from properly managing or controlling her estate. The testator therefore devises what he designs for her, to his executors in trust. Before examining this trust, let uí¡ pursue the order of the will.
He next devises a similar portion- of real estate to his son Thomas in fee. Then follows a devise to the executors of a like portion or real estate, in trust for the use of his daughter-in-law, the wife of his son Henry A. Cargill, during her life with a discretionary power in the trustees to sell one house and lot, and apply its proceeds to all or any of Henry’s debts; and on the death of Henry’s wife, the estate was to descend to his children, in the same manner as if he had Owned it and had died intestate.
The testator next devised a like specific portion of his real estate to his executors in trust for his son Edward during his *322life, the income to be paid to him in their discretion, and after Edward’s death, the estate to go to his right heirs at law.
And lastly, the testator devises a similar portion of his real estate to his son David; of which a part is given to him in fee simple, and a part for life with remainder to his right heirs.
The will shows that the testator had a large personal estate, out of which a part of his wife’s annuity was made payable. The capital is not disposed of otherwise than by the residuary clause, by which he bequeaths all the residue of his estate, real and personal, to his executors in trust, to divide and dispose of it to and amongst his children and daughter-in-law, and to and for the same estates, uses, limitations, trusts, &c., as before provided.
From this statement of the will, the design to dispose of all the real estate which the testator described specifically, and of the whole interest in that estate, is very manifest. It is also sufficiently apparent, that he meant to make the five branches of his family nearly or quite equal in their participation in his estate; giving life interests only to the children, with remainder to their issue, where the misfortunes or improvidence- of his children made that course expedient.
There is another part of the will which makes this intention still more plain.. He authorizes his executors to sell all or any of his real estate, and in case they do sell, the part so sold is to be accounted for and arranged so as to make up the share of the premises sold, which were by the will devised to any one of his children, equal to the other, to be estimated according to the amounts realized from such sales, so that no- one of his children, or such devisees, shall be losers by such sale, or be less benefited by his bounty, thereby devised to them, severally and respectively.
This clause establishes, beyond all doubt, the design to put each of his children and their families upon an equal footing. And the reference to- devisees, as distinguished from children, shows also that he had in view his grandchildren, as taking in each instance where their parent was limited to a life estate.
In the particular devise in question,- after vesting the specific portion designed for Mrs. Sturges,.in the executors, with a gene*323ral habendum to them for the uses and trusts thereby created, concerning the same, it proceeds with an habendum for and during her life, and for her use and benefit, as to the proceeds, &c., not subject to the control of her husband, nor liable to his debts. And there the devise stops short.
Nor is there another word concerning this portion of the estate, to be found in the will, except the authority to the executors to sell, which I have before stated; and except that, in describing a part of the lands devised to David, it is said to be “ on- the opposite side of the road to the premises devised to my said executors as trustees for my daughter, Jane M. Sturges.”
In the devise to David of block N<<. 22, in the Bloomingdale tract, it is left very much in doubt whether David takes that, as he does the parcel immediately preceding, for Ixis life only with remainder to his heirs ; or whether he has an estate in fee, as in the first parcel devised to him.
There is nothing in the will, and still less, if possible, in the relative situation, feelings, and circumstances of the testator and his daughter, Mrs. Sturges, as proved, from which I can infer that the testator intended to leave her large family of children destitute after her death, and give to the other branches of his family her portion of the estate.
The will shows no disposition to exclude any branch of the family, or to build up either one at the expense of another.
The children of Mrs. Sturges had as direct and immediate claims on bis bounty, as those of Richard A. Cargill. The specific devise for Mrs. Sturges’ benefit, commences with words sufficient to vest the whole estate in the executors. It is referred to afterwards, as being devised to the executors for her. It is no where devised again •, and the whole will shows that it was intended for the benefit of herself and her family. The limitation of a life estate, establishes that the issue were to take the inheritance, in the same manner that provision was made for Henry’s children, after the death of his wife.
My conclusion is clear, that such was the intent of the testator, and that the effect of the will when taken together is to vest this portion of the estate in the executors, in trust for the *324separate use of Mrs. Sturges during her life, with the remainder to her children.
Mr. Jarman in his valuable treatise on wills, (1 Jarman on Wills, 500,) sustains this mode of construction. He says, “ where the language of the will necessarily confines the interest of the parent to his life, the courts will lay hold of slight circumstances to raise a gift in the children, and thereby avoid imputing to the testator so extraordinary an intention as that the devisee or legatee over is to become entitled if the first taker have no child, but that the property is not to go to the child, if there be one, or its parent.”
There must be a decree accordingly.