Summary
In Security Trust Co. v. Lovett, 78 N.J. Eq. 445;79 Atl. Rep. 616, Vice-Chancellor Leaming declared: "It is settled in this state that the word `issue,' in its ordinary meaning, embraces grandchildren and remoter descendants, as well as children, and that meaning must be attributed to the word when used in a will as here used, unless from the will it can be clearly ascertained that a more restricted meaning was intended by the testator.
Summary of this case from In re FislerOpinion
03-13-1911
SECURITY TRUST CO. v. LOVETT et al.
J. Charles Winters, for complainant. Patrick H. Harding, for defendant Reed. Oscar B. Redrow, for Kennedy and others.
Bill by the Security Trust Company, administrator de bonis non with the will annexed of James Kennedy, deceased, against Mary Ann Lovett and others, to obtain a construction of the will. Will construed.
The material provisions of the will are as follows:
"Second: Item. I give, devise and bequeath all my estate both real, personal and mixed, of whatsoever name and nature wheresoever situate or to be found, of which shall belong to or be owned by me at the time of my death unto my beloved wife Margaret, to have and to hold the same during the term of her natural life.
"Third: Item. That after the decease of my said wife Margaret, it is my will that my executors hereinafter named, shall sell and dispose of the real estate at public or private sale, at such times, and upon such terms, and in such manner as to them shall seem meet, and the proceeds from such sales be divided between my children Mary Ann Lovett, Rosanna Prickett, John Kennedy, Wiliam Kennedy, James Kennedy, Martha Allison, Margaret Kaighn, Louisa Graham, Rebecca Cavanaugh, Charles Kennedy and Laura Virginia Carroll, share and share alike, and one-twelfth part or share to be divided between Walter, James, Ralph, and Elizabeth Eisley, children of my deceased daughter Sarah Eisley, to which she would be entitled to if living.
"Fourth: Item. Should either of myabove named children die leaving issue, it is my will that the portion herein devised or bequeathed to such child or children shall be equally divided between their issue."
J. Charles Winters, for complainant.
Patrick H. Harding, for defendant Reed. Oscar B. Redrow, for Kennedy and others.
LEAMING, V. C. By the second paragraph of the will the property of testator is given to his wife for life, and by the third paragraph a sale of the property is ordered to be made, at the decease of the widow, and the proceeds of the sale divided among testator's 11 children and four grandchildren; each child taking one share and the four grandchildren taking the share of the deceased child.
The present controversy arises from the circumstance that, after unqualifiedly directing payment to be made to his 11 children, testator, by the fourth paragraph of his will, provided that, should either of the children die, leaving issue, the portion given to such child or children should be equally divided between their issue.
This provision relating to the contingency of the death of the children will, by the accepted rules of construction in such cases, be understood to refer to the death of the children prior to the period of distribution; that is, prior to the termination of the life estate by the decease of the widow. Brown v. Lippincott, 49 N. J. Eq. 44, 23 Atl. 497; Fischer v. Fischer, 75 N. J. Eq. 74, 71 Atl. 488.
It will be observed that testator has not directed that the share of any son or daughter who dies, leaving issue, should go to the children of such son or daughter; the provision is that the share shall be divided between the "issue" of the child or children dying with issue. Three of the children of testator have died since the death of testator, and before the death of the widow, and each of the three so dying has left children who are now alive, and some of these children now alive (grandchildren of testator) have living children (great grandchildren of testator) who were born prior to the death of the widow of testator.
It is settled in this state that the word "issue," in its ordinary meaning, embraces grandchildren and remoter descendants, as well as children, and that meaning must be attributed to the word when used in a will as here used, unless from the will it can be clearly ascertained that a more restricted meaning was intended by testator. Unless so restricted, it includes children of a living child. Inglis v. McCook, 68 N. J. Eq. 27, 40, 41, 59 Atl. 630; Price v. Sisson, 13 N. J. Eq. 168, 177, 178, s. c. on appeal, 17 N. J. Eq. 475, 485; Coyle v. Coyle, 73 N. J. Eq. 528, 68 Atl. 224. I find nothing in the will in question from which it may be properly determined that the word "issue" was used by testator with any meaning other than its ordinary meaning; indeed the will contains no provision which even suggests that idea. It is plain, therefore, that the grandchildren of testator's children share in the distribution. The extent of the share which these grandchildren of deceased children of testator take is determined by the language of the will. That provision is clearly to the effect that the share of a child of testator who dies leaving issue shall be divided equally between such issue. Not only is that the clear purport of the language used in the will, but it is also in harmony with the rule adopted in cases in which issue of a given person are referred to in a will as the objects of testator's bounty in the event of the death of such person with issue. The rule is stated in Jaiman on Wills as follows: "The word 'issue,' though in its popular sense is said to be 'children,' is technically, and when not restrained by the context, coextensive and synonymous with 'descendants,' comprehending objects of every degree. And here the distribution is per capita, not per stirpes." 2 Jarman on Wills (5th Am. Ed.) 635. This text is approved by our Court of Errors and Appeals in Weehawken v. Sisson, 17 N. J. Eq. at page 486. The suggestion is made that the issue of the several children of testator who have died before the period of distribution, leaving issue, may take as one general class, and that distribution will accordingly be made among all of them, irrespective of the child whose issue they may be. This view is clearly untenable. The general structure of the will, as well as the language of the paragraph here in question; discloses what appears to be a denned purpose on the part of testator to distribute his estate to his several children and their respective lines in such manner that each child and the line of a deceased child shall receive one equal share. While the interests of the several children of testator may properly be regarded as vested interests at the death of testator, they were by the terms of the will to be divested in favor of their issue, in the event of death with issue before the death of the life tenant. The manifest plan is that the issue of a deceased child shall take the share of the deceased child by substitution. The result is that the one-twelfth share of Rosanna Prickett, deceased, should be distributed to her two daughters and to her two granddaughters in equal shares; that is, one-fourth thereof to each. The one-twelfth share of William Kennedy, deceased, should be distributed to his two sons and four granddaughters in the same manner. The one-twelfth share of Martha Allison, deceased, should be distributed to her four children and three grandchildren in the same manner.
Another son of testator died intestate in 1895, after the death of testator and before the death of the life tenant, leaving no issue, and leaving a widow. By the third paragraph of the will of testator, one-twelfthof the proceeds of sale of testator's real estate is ordered paid to this son at the decease of testator's widow. This provision was clearly operative to confer upon this son at the death of testator a vested interest in the nature of a remainder in the share named. The gift to the several sons must be treated as legacies of personal estate, as distinguished from devises of real estate; for, where land is directed to be sold in any certain event, and it is not optional with the executors whether they will sell, and the proceeds of the sale are given to the objects of testator's bounty, the land is deemed personal property from the death of testator. Dutton v. Pugh, 45 N. J. Eq. 426, 18 Atl. 207; Fairly v. Kline, 3 N. J. Law, 754, 4 Am. Dec. 414. The right of the son now in question was a vested right; there was a present right of future enjoyment; the right of future enjoyment was limited on an event—the death of the widow—which was certain to happen, and the son was capable of taking at any time the life right should be spent; the present absolute right and capacity of enjoyment in the son, in the event of the cessation of the life estate, created a vested interest in him, notwithstanding the possibility of his death with issue before the death of the life tenant; in the event of his death with issue, before the death of the life tenant, his interest was, by the terms of the will, to be divested; the enjoyment was merely postponed to let in the enjoyment of the life tenant; but that contingency is attached to the time of payment, and not to the substance of the gift; it is the uncertainty of the right of enjoyment, and not the uncertainty of actual enjoyment, which prevents a right from vesting and renders it contingent. See Miller v. Worrall, 59 N. J. Eq. 134, 44 Atl. 890; Price v. Sisson, supra, 13 N. J. Eq. at page 177; Weehawken Ferry Co. v. Sisson, supra, 17 N. J. Eq. at page 479; Executors of Wintermute v. Executors of Snyder, 3 N. J. Eq. 489, 492; Fairly v. Kline, 3 N. J. Law, 754, 4 Am. Dec. 414; Van Dyke's Adm'r v. Vanderpool's Adm'r, 14 N J. Eq. 198; Thomas' Executors v. Anderson's Adm'r, 21 N. J. Eq. 22; Beatty's Adm'r v. Montgomery's Ex'r, 21 N. J. Eq. 324, 327; Executors of Kearney v. Kearney, 17 N. J. Eq. 59, s. c. on appeal, 17 N. J. Eq. 505; Huber v. Donoghue, 49 N. J. Eq. 125, 23 Atl. 495. This view in no way conflicts with the rule that, where a bequest is limited over after a life estate to several persons and the "survivors," their interest is contingent, and no rights will vest until the termination of the life estate, as in Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32, and Williamson v. Chamberlain, 10 N. J. Eq. 373. As has been already stated, the son John Kennedy died intestate in the year 1895, leaving no issue, and leaving a widow. As the interest of John Kennedy was a vested interest, the change in the statute of distribution of this state in the year 1908 (P. L. 1908, p. 644) cannot alter the shares to which the widow and the next of kin of John Kennedy were severally entitled in his estate at the time of his death. Van Tilburgh v. Hollinshead, supra. The result is that one-half of the one-twelfth share of John Kennedy should be distributed to his widow.
Another controversy exists, touching the force of the provisions of the will in favor of the children of testator's daughter Sarah Eisley. One of these children, James, died intestate and without issue prior to the decease of testator. Where a gift is to several persons by name, a presumption arises, in the absence of contrary intent apparent on the face of the will, that the persons named are to take in their individual, and not in their collective capacity, even though the persons so named constitute a class. In such case the bequest lapses as to any one of the persons named who may be dead at the time of the death of testator. Dildine v. Dildine, 32 N. J. Eq. 78; Collins v. Bergen, 42 N. J. Eq. 57, 6 Atl. 284. The provisions of section 34 of our statute concerning wills (3 G. S. p. 3763) does not include a case in which the legatee dies without issue. The presumption referred to, however, is but a rule of construction, to be used in the ascertainment of the intention of testator; the presumption is not conclusive. If it sufficiently appears from the will that it was the intention of testator to make a bequest to a class, as distinguished from the individuals who may compose the class at the time the will was made, the death of one or more of the persons before testator will not cause a lapse of any part of the fund, but the survivors of the class will take the whole; such an intention may be manifest, even when the persons comprising the class are named. Jackson v. Roberts, 14 Gray (Mass.) 546; Schaffer v. Kettell, 14 Allen (Mass.) 528; Stedman v. Priest, 103 Mass. 293; Page v. Gilbert, 32 Hun (N. Y.) 301; Hoppock v. Tucker, 59 N. Y. 202. In the present case I think it apparent that it was the intention of testator to give one-twelfth of his estate to the children of his daughter Elizabeth as a class. By the will he divided his entire estate into 12 equal shares, and gave one share to each of his 11 living children and the other share to the "children of my deceased daughter, Sarah Eisley, to which she would be entitled to if living." No provision was made in the will for a residuary estate. This general plan discloses a purpose on the part of testator to dispose of his entire estate, and to dispose of it in equal shares in such manner that the children of his deceased daughter should represent their mother and take their mother's share. The mere fact that the children of his deceased daughter were mentioned by name should not, I am convinced, be considered sufficient to overcome the intent which seems otherwise apparent. In Hoppock v. Tucker, supra, the general plan disclosed bythe will was deemed sufficient to indicate a defined intention to give to a class. But another circumstance should not be overlooked. After the decease of James, testator made a codicil to his will, and made no provision for any unwilled estate. In Jackson v. Roberts, supra, that circumstance was held to indicate that the original intention of testator was to make the bequest to a class, and to disclose that it was the belief of testator that he had done so. I am constrained to hold that at the decease of testator one-twelfth of his estate became vested in his three grandchildren, Elizabeth, Ralph, and Walter, equally, to be enjoyed by them in possession at the decease of the widow of testator. As these shares were severally vested in these three grandchildren of testator at his decease, with no conditions subsequent annexed, they severally passed, at their death, according to our statute of distribution as it existed at the time of their several deaths.
I will advise a decree in accordance with the views herein expressed.