Summary
In McDonald v. Clermont, 107 N.J.Eq. 585, 153 A. 601, 603, Vice Chancellor Buchanan said: "No matter how certain we may feel that the testator has omitted to make a certain provision through oversight, and that he would have made the provision if he had thought of the contingency, nevertheless, if he did in fact overlook it and fail to make it, the court cannot make it for him."
Summary of this case from Taylor v. McClaveOpinion
Decided February 2d 1931.
Appeal of Mildred Parks Gaskill.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following conclusions:
"This is a bill to quiet title. The statutory requisites are alleged and duly proven. The issue rests on the construction of the will of Garrett D. Parks. The pertinent part of the will is as follows:
"I give and bequeath unto my beloved wife, Annie E. Parks, * * * the use of all my * * * goods and * * * lands, * * * during her natural life, and at her death all the above named of my possessions shall be given and bequeathed to my adopted son, Garrett Saunderson Parks, but in case my said adopted son above named shall die before my wife, then all my possessions, at the death of my wife as above, shall be equally divided between my two sisters, namely, Hannah Snyder and Mary Blackwell, and in case my above-named adopted son, shall die without issue. My possessions shall revert to my two sisters above named or to their heirs, as above stated."
"Testator died in 1897, seized of the tract of land in question. The adopted son, Garrett Saunderson Parks, died in 1905, prior to the widow, and leaving issue, a daughter, now Mildred Parks Gaskill. The widow died in 1909. Testator's two sisters, Hannah Snyder and Mary Blackwell, both survived the widow, but have since died intestate, leaving the defendants in this suit as their heirs-at-law.
"Complainant contends that under the will and the facts just mentioned, title in fee-simple became vested in the adopted son, and on his death intestate passed to his daughter as his sole heir — from whom complainant derives title by conveyance in 1927.
"Defendants argue that by the death of the adopted son prior to the death of the widow, he was divested of the remainder and the same vested in their ancestors — testator's two sisters.
"The first step in construction is the ascertainment of the intent of the testator as expressed in the instrument. It is obvious that this will was drawn by one not learned in the law nor skilled in the drafting of wills — presumably by testator himself. The first impression — on reading the will over as the expression of a layman not concerned with technical rules of construction but simply endeavoring to set down in writing his desires as to the disposition of his property — is that he intended by what he said, that his wife was to have the use and income of all his property during her life and that at her death it was all to become the property of his adopted son. Then, realizing that the son might possibly die before the wife, he goes on to provide that in that event, the property at the death of the wife should go to the two sisters. Then he apparently reflects upon the fact that the son might survive the wife but might die soon after the wife, while the sisters might still be living — and he goes on to provide, as it would appear, that in that event, if the son die without issue the son's title shall cease and the estate shall then become the property of the two sisters. (I say `as it would appear,' because although this clause does not expressly say `in case my son shall die without issue after the death of my wife,' it is probable that that is what he had in mind, because by what he had already theretofore said, he had provided for what should happen if the son died before the wife. Furthermore the use of the word `revert' would seem to justify an inference that he had in mind a taking away of the property from the son after it had become the son's property, which would not happen under the prior provision until the wife had died.)
"He then apparently reflects that the two sisters might not be living at the time the son might die, without issue, after the death of the wife — and so he adds `or to their heirs' — which would be the natural thing for him to provide in the situation of the son being dead without issue.
"As I have said, the foregoing is the first impression on reading the will. Further consideration makes one reflect that if that is what the will means, without more, then it results that the testator has done what seems a strange and inconsistent thing for him to do — in this respect: if the son die before the wife, whether he leave issue or not, the property goes to the sisters. The issue of the son (if there be issue) is cut off, in favor of the sisters, if the son die before the wife, but is not so cut off, if the son die after the wife. What reason could the testator have had for making such a distinction? Did he actually intend to make such a distinction?
"It is difficult, if not indeed impossible, to think of any sound or logical reason for the testator's making such a distinction. On the other hand, it was not necessary or requisite that he should have a sound or logical reason therefor. It was quite competent and lawful for him to make such a distinction for an illogical reason, or a whim, or no reason at all. How can this court say, in the face of what the testator actually said, that he meant something different from what he said? The testator has said that the property should go to the sisters in case the son `shall die before the wife.' This court cannot say that that clause means `shall die without issue before the wife,' unless such a meaning is the necessary result of necessary inference from all that testator has said in the will.
"That the inference is possible — even probable — may be conceded; but it cannot be said that it is necessary.
"It would seem probable — so highly probable that this court might almost be justified in finding it as a fact — that the real explanation of the testator's apparent inconsistency is that the contingency of the son dying before the wife, but leaving issue, did not come into his mind, or that he did not realize that he had made no provision for the issue in such a contingency (a thing which so often happens when a layman tries to draw his own will), and that if that particular contingency had occurred to him, he would have provided that the son's issue should in such event get the property.
"That, however, cannot avail complainant. No matter how certain we may feel that the testator has omitted to make a certain provision through oversight, and that he would have made the provision if he had thought of the contingency, nevertheless, if he did in fact overlook it and fail to make it, the court cannot make it for him.
"Complainant relies upon Holcomb v. Lake, 25 N.J. Law 605 , and Shreve v. MacCrellish, 60 N.J. Eq. 198. The former case decides that where a will makes a devise with a limitation over in case the devisee die under twenty-one or without issue, the word `or' must be construed `and,' unless other parts of the will evidence a contrary intention. We may assume that the latter case is controlling authority for the proposition that where there is a life estate devised to A. and the remainder to B., with a clause that `if B. predecease A. or die without issue,' the word `or' is to be construed `and' unless other parts of the will indicate the contrary. If the wording of the will now under consideration gave a life estate to the widow and remainder to the son and proceeded `but if the son die before my wife or without issue' the sisters shall take — this suit could and would be determined in favor of complainant.
"But the language of this will is not phrased in that way; the phrasing of the contingency is not that upon which the two cases named predicate the rule of construction which they lay down; there is no word `or' to be read as `and.' It is only that situation with which those cases deal. They do no say (nor does any other authority of which I am aware) that if a testator makes a will wherein he says (as this testator says) —
"(1) I give my property to my wife for life,
"(2) and at her death to my son,
"(3) but if my son predecease my wife it shall go to my sisters,
"(4) and if my son die without issue it shall revert to my sisters or their heirs,
the will must be construed as though the words `without issue' were inserted in clause 3 after the word `wife.'
"In the absence of any such authority, it is concluded that at the death of the son, he was divested of the remainder which became vested in the sisters and passed by their deaths intestate to their heirs-at-law.
"It is true that there are other rules of construction which are at least germane to the issue here — such as the rule that a will is not to be construed, except in a plain case, so as to cut off from benefit any direct descendant of testator. Rowley v. Currie, 94 N.J. Eq. 606. And that a clear gift in one clause is not to be construed as taken away or cut down by doubtful expressions in later clauses. Sayre v. Kimble, 93 N.J. Eq. 30; Johnson v. Haldane, 95 N.J. Eq. 404. Those rules, however, cannot avail the complainant in the instant case, because the language of the testator here is entirely clear and plain, both in its expression and its meaning. There is no doubt as to what testator has said, and no doubt as to the meaning of what he has said; the thing which gives us trouble is simply that we do not know why he said it.
"I think there is scarcely any doubt that if the testator could be called back to life and interrogated he would say that he desired the son's issue to take, under the contingency which happened. But he cannot now say it; and he did not say it in his will, and this court cannot say it for him. It is regrettable, but after all it is the testator's own fault. The law throws all possible safeguards about the execution of a will, so a man may be sure that his property will go in accordance with what he provides in his will; but the law cannot — or at least does not — compel a man to have his will drawn by someone who knows how."
Mr. Donald R. Bryant, for the complainant.
Mr. Joseph E. Hunt, for the defendants.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Buchanan.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.