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deceased or insane, the will may nevertheless be established upon proof of their handwriting and that of the testator.
Notice of the proceedings should be given, not only to those who may be opposed to the will, that is, those who would benefit by a refusal of probate, but also to those named in the instrument, in order that they may attend, and, if necessary, aid the petitioner in the defense of their legacies. In the states where the various steps are governed by statute, the proceedings are apt to be more or less formal, but elsewhere, and especially where the estate is small and the parties few, it is not unusual for them to go before the surrogate who will take the testimony of the witnesses and at once admit the will to probate.
If any of the parties has, or claims to have, any ground for objecting to the admission of the will to probate, such objection should be reduced to writing and filed with the probate judge. It is only those who would benefit by having the will rejected, that are permitted to oppose its probate. One who, though a legatee, is neither an heir-at-law nor next-of-kin of the testator, and who makes no claim as a legatee or devisee under any other will or codicil, is not entitled to file objections.
The trial of the contest is had before the probate court, or, in some states, before a Superior Court to which the hearing is required to be transferred. If any of the parties demands it, a jury may be called, otherwise the court is the sole judge of the facts. The usual grounds for contest are the improper execution of the will, want of sufficient mental capacity on the part of the testator, and the exercise of undue influence upon him; but these grounds are not exclusive, and a contest may be had upon any set of facts which satisfy the court that the instrument presented did not fairly express the testator's real wishes, or that he had an imperfect knowledge of its character and contents, or that a later will had been executed, for such circumstances are tantamount to a claim that the instrument is not the will of the testator at all.
We are verging upon the realm of technicalities, which are of interest only to those who have been trained in the law, and for whom these pages are not intended. Hence, we will omit the consideration of those interesting but scientific questions relating to the competency of witnesses, modes of proof and receipt of evidence, which invariably arise upon contested probate, but which do not enlighten the general reader.
After having heard all the evidence and having considered the arguments of the parties, if the court is then satisfied that the formalities required by the statute have been complied with, and that the testator was in all respects competent and free from all undue restraint, the will must be admitted to probate and be spread upon the records of the court. As an incident to its probate jurisdiction the court may refuse probate of any part of the will which is shown to have been inserted by fraud or mistake.
In the same proceeding the court is also authorized to construe the will, that is, to determine the true meaning of the language which the testator has used, and it may decide questions respecting the validity of testamentary gifts, and as to the competency of the beneficiaries to receive and hold what is given them. But these questions are wholly independent of the probate, which has to do with the execution of the instrument only, and even if the will be held to be wholly ineffectual to pass title to property, it is nevertheless entitled to be admitted to probate, if the court is satisfied that the testator was mentally competent and that the statutory formalities were complied with.
50. Construction of wills.
The intention of the testator to devote his property to a lawful use is the sovereign guide to which all other considerations are subordinated, and the execution of that intention is the goal to which every step in the administration of his estate unwaveringly points. But, unfortunately, in many wills that intention is not expressed with that degree of precision which leaves no doubt of the testator's real wishes, and courts have been put to no end of trouble in trying to arrive at a correct interpretation of his language. This is called the construction of the will, and the necessity for it may arise either at the time of its probate, or later on upon the representative's accounting, when the directions for distribution are about to be carried into effect.
The law has developed many rules and principles whereby it is sought to discover the meaning of ambiguous wills. One of the most important of these is that, with one exception, the court cannot make use of any evidence other than the language itself to discover the testator's meaning. That is, the sense in which he used the words of his will cannot be shown by outside evidence, but in every case the inquiry is: What do his words mean standing by themselves and considered alone? The exception referred to is the case where there is doubt as to which of two objects the will, unambiguous in itself, applies. In that event, the testimony of witnesses is permitted in order to make clear, not the language used, but the object to which it refers,
If the testator's meaning is doubtful, the practical construction placed upon the will by members of his family, particularly by the contestant, is of very great weight, and should not be disturbed, unless for imperative reasons. But this rule does not apply where the meaning is clear. A will must be interpreted according to the testator's intent, not in the sense desired by the beneficiaries. When the testamentary intention is discovered, it then remains to determine whether it is a legal one, for unless it is consistent with existing statutes and rules of law, it cannot be allowed to become effective. What these restraints consist of has already been explained (ante $$ 25, 27, 28). In arriving at a correct interpretation of a will the instrument should be considered as a whole, and no clause should be rejected when it is possible to reconcile it with other apparently conflicting provisions. But where the intent is reasonably clear, but is endangered by inapt language, the court may reject some words, and may supply and transpose others, to get at the correct meaning. Where two inconsistent provisions are wholly irreconcilable, the latter must prevail; and where one part is invalid it may be eliminated, if the general plan of the will is capable of being executed without it. Above all, the testator's language should, if possible, be so construed as not to nul