Opinion
Submitted May 25th, 1945.
Decided September 27th, 1945.
1. The fundamental principle underlying all construction and interpretation of wills is to carry out the intention of the testator, if not illegal, as ascertained from the will.
2. The words "in equal shares," standing alone in a will, create a gift in severally with all donees taking as tenants in common. But where, as here, the will provides that donees should take "as joint tenants and not as tenants in common," the donees take as joint tenants with the right of vesting the whole interest in the survivor who does not die before the testator.
On appeal from a decree of the Court of Chancery advised by Vice-Chancellor Lewis, who filed the following opinion:
"Josephine Allen Hopper Tucker died testate on March 12th, 1943, and by the terms of her will, she devised her entire estate after the payment of debts, as follows:
`Second: I give, devise and bequeath all of my property, real, personal and mixed, of whatever nature and wheresoever situate, which I may own or have the right to dispose of at the time of my death, unto my sister, Fredericka Allen Shearin of Monroe, New York, and my brother, Christopher Allen, to have and to hold the same in equal shares as joint tenants and not as tenants in common.'
"Christopher Allen predeceased the testatrix, Josephine Allen Hopper Tucker.
"It is a cardinal rule for the construction of wills that all the words in a will must be given a meaning. The fundamental principle underlying all construction and interpretation of wills is to carry out the intention of the testator, if not illegal, as ascertained from the will.
"The words `in equal shares' standing alone create a gift in severally with all donees taking as tenants in common. But the will under consideration provides that donees should take `as joint tenants and not as tenants in common.' The donees under this will took as joint tenants with the right of vesting the whole interest in the survivor who does not die before the testator. The estate of Josephine Allen Hopper Tucker goes to the complainant, Fredericka Allen Shearin, to the exclusion of the heirs of Christopher Allen."
Mr. Isadore Rabinowitz and Mr. Nathan Rabinowitz, for the appellants.
Mr. Edward G. Weiss, for the respondent.
The decree under review is affirmed, for the reasons expressed in the opinion of Vice-Chancellor Lewis, ubi supra. For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, COLIE, OLIPHANT, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, JJ. 14.
For reversal — None.