Opinion
10-30-1886
COLLINS and others v. BERGEN and others.
John F. Harned, for complainants. Martin V. Bergen, for defendants.
Bill for construction of will, etc. On final hearing upon pleadings and stipulation of counsel as to facts.
The facts appear in the opinion.
John F. Harned, for complainants.
Martin V. Bergen, for defendants.
RUNYON, Ch. James Folwell, late of the county of Camden, died April 6, 1867. By his will he provided as follows:
"Second. I direct ray executors herein named to pay, or cause to be paid, unto Sarah Green, my housekeeper, the net income or interest arising from my property, either in bonds or mortgages, notes or stocks, during her natural life, and at her death I give and bequeath to my sister Leah Ann Davis the sum of $100. I also give and bequeath, after the death of Sarah Green, the one-half of all my residuary estate unto my three sisters Mary Little, Susan Sharp, and Hannah Kemble, share and share alike; being the third part of said devise to each of them. The other remaining half of my estate I give and bequeath, after the death of Sarah Green, to Rachel Collins, my wife's daughter, Catherine Collins, her sister, and Harriet Collins,—these three sisters. I bequeath to each of them the third part of one-half of my residuary estate, as before noted, after the death of Sarah Green. To Mary Ann Horner, of Philadelphia, I give and bequeath the sum of $200."
Sarah Green died November 5, 1884. Harriet Kemble and Rachel Collins both died before the testator. The former died in 1863, before the making of the will, and the latter died in 1864. Each died intestate, leaving issue. Susan Sharp and Catherine Collins both died after the death of the testator, and before the death of Sarah Green. Both died intestate leaving issue.
The questions presented for decision are the following: Whether the residuary gifts in remainder were vested or contingent; whether the shares of Harriet Kemble and Rachel Collins lapsed, or whether they went, on the testator's death, to the surviving residuary legatees in remainder; that is, whether the share given to Hannah Kemble went to Mary Little and Susan Sharp, and the share of Rachel Collins to Catherine and Harriet Collins.
The residuary gifts in remainder were vested, and not contingent upon the event of the legatees surviving Sarah Green. Howell v. Green, 31 N. J. Law, 570. Whether the legatees in remainder of each half of the residuary fund who survived the testator were entitled to the whole of the gift given to them and their deceased co-legatee depends upon the decision of the question whether those gifts are to individuals or to a class. The rule is that where an aggregate fund is given to several persons nominatim, to be divided among them in equal shares, if one of them died before the testator, the share of such decedent will lapse. The gift in this case is to six persons by name, to each one-third of one-half of the residuary estate in remainder. The testator gives one-half of that estate to his "three sisters Mary Little, Susan Sharp, and Hannah Kemble, share and share alike; being the third part of said devise to each of them." He previously gave $100 to his sister Leah Ann Davis. The other half of the residuary fund he gives to "Rachel Collins," his "wife's daughter, Catherine Collins, her sister, and Harriet Collins,—these three sisters;" and adds that he bequeaths to each of them the third part of one-half of his residuary estate after the death of Sarah Green. Rachel, Catherine, and Harriet Collins were not sisters, but were sisters-in-law; and the first named was not the testator's wife's daughter, but her daughter-in-law. In Creswell v. Cheslyn, 2 Eden, 123, where a testator gave the residue of his personal estate to his three children, naming them, share and share alike, as tenants in common, and not as joint tenants, and by a codicil revoked the gift as to one of them, giving, instead of it, to the legatee a pecuniary legacy, it was held that the residuary third, the gift of which was so revoked, did not belong to the two other residuary legatees. See, also, Clark v. Phillips, 17 Jur. 886; In re Stanhope's Trusts, 27 Beav. 201; and Havergal v. Harrison, 7 Beav. 49. It is true that the mere fact that the testator, in a devise or bequest to persons, mentions them by name, is not conclusive upon the question whether the gift is to those persons as a class or as individuals. But the rule is as above stated, and there is nothing in this case to take it out of the rule. Where the gift is to persons nominatim, the intention to give a right of survivorship may be deduced from other parts of the will. The cases cited by the complainant's counsel—Jackson v. Roberts, 14 Gray, 546; Schaffer v. Kettell, 14 Allen, 528; and Stedman v. Priest, 103 Mass. 293 —are instances of such construction.
In the case in hand there is nothing to indicate any intention to give to the residuary legatees in remainder as classes, and not as individuals. The fact that the testator intended to give one-half of the residuary fund to his three sisters of the whole blood, (Leah Ann Davis was his sister of the half blood,) upon whom he bestowed it, and the other half to the three sisters-in-law, wives of his wife's sons, is not evidence of such intention, any more than the gift of the whole to the six, nominatim, in equal shares would have been. The shares of Harriet Kemble and Rachel Collins, who died in the testator's life-time, lapsed. Being shares of the residue, they did not pass to the other residuary legatees as part of the residue. Hawk. Wills, 42. Consequently the testator must be held to have died intestate as to them.