155 Iowa 415 | Iowa | 1912
James B. Wilson died, testate, December 28, 1908, leaving surviving him neither widow nor issue. His only living heirs at law were William. W. Wilson and Sarah E. Leo, his brother and sister of the full blood, John H. Wilson and A. C. Woody, his brothei'g of the half blood, and William M. Wilson, the son of a brother of the half blood, who died some yeans before the making of the will in controversy. William^ M. Wilson having assigned his interest under the will to James R. Hanna, the latter is made a party to the proceeding.
1st. I give and bequeath to G-. A. Rigby, now in. my employ, providing he is in my employ at the time of my death, the sum of twenty-five hundred dollars.
2nd. I give, devise and bequeath to my sister, Mrs. Sarah E. Leo of Cedar Rapids, Iowa, all the proceeds of all- life insurance policies held by me at the time of my death upon my life.
3rd. If my brother, William W. Wilson, survives me, then I give, devise and bequeath to my sister, Sarah E. Leo, in trust for the use and benefit of my brother, William W. Wilson, the east fourteen (14) feet and six inches of lot seven (7) and the west seven(7) feet six inches of lot eight (8) in block (13) in the original town now city of Marion, in Linn county, Iowa, including the building and fixtures and the counters, shelvings, show cases, radiators, soda fountain and safe located . therein, subject to and charged with any incumbrance thereon at the time of my death; and I direct that the rents . ánd income from said property after the payment of taxes, insurance, interest on incumbrances and expenses of repairs shall be paid monthly to my said brother, William W. Wilson, during his natural life,' and I authorize and empower said trustee or her successor as may be appointed by the court in case of her demise, to sell and dispose of said property ait any time during such trusteeship if deemed proper by such trustee, and in case of' such sale then I direct that the' proceeds thereof, after the payment of incumbrances, shall be held by such trustee in trust for the use and benefit of my said brother, William W. Wilson, he to be paid the interest thereon during his natural life, and at his death said property or the proceeds thereof in ease it has been sold, shall go, a one-half interest to • my sister, Sarah E. Leo, and the other one-half interest to my brothers of the half blood equally and in case any are then deceased his share to go to his children equally, But in case my said brother, William W.' Wilson, does not survive me, then I give, devise and bequeath said property, a one-half interest to my sister, Sarah .E. Leo, and the other one-half interest to my brothers of the half blood equally
4th. All the rest, residue and remainder of my estate, real and personal, wheresoever situate, I direct shall be sold by my executors and after the payment of the legacyj costs of 'administration and lawful debts, be divided equally between my brothers and sister of the full and half blood equally, but if any be then deceased such share to go to his or her children equally.
The one question presented by this controversy is whether the son of the predeceased half-brother of the testator is a devisee under the provisions of the third and fourth paragraphs of the will above quoted. It is the contention of the executors that the benefits provided for in said paragraphs are given exclusively to the brother and sister of the full blood and the two brothers of the half blood, who were living at the date of the will, and that the son of the ¡Predeceased half-brother is given nothing. This position is contested by William M. Wilson -and his assignee, claiming that under a proper construction of said devise he is given a share therein in equal proportions with John TI. Wilson and A. C. Woody, the surviving half-brothers of the testator. The trial court held, with the executors, that William M. Wilson is not a beneficiary under said will, and, having entered a decree accordingly, the said William M. Wilson and James N. Hanna appeal.
This case has been twice argued to this court, and counsel on either side have collected the authorities and presented their views with marked thoroughness of preparation. The question presented is a 'debatable one, and reasons having much of plausibility and force may be advanced in support of either conclusion; but, after mature deliberation, we find ourselves unable to agree to the correctness of the decree below.
But the proposition of the- -appellees is, as we understand it, that the context of the words of the devise, taken in connection with the admitted fact that the father of the appellant was already dead at the date of the will, requires us to restrict its application to the half-brothers living at that date and the children of such half-brothers as may die after the date of the will, but before the 'testator’s death. It is argued that our decision in Downing v. Nicholson, 115 Iowa, 493, is in point upon this proposition, and governs the construction of this will. An examination of that precedent will disclose that it is not a parallel case with the one -at the bar; and neither its reasoning nor conclusion is controlling here. The devise there in question was to “all my nephews and nieces.” There was no -attempt by the testator to enlarge the class to include the children of a deceased nephew or niece. The claimants did not claim any right to take as- devisees under the will, but by statutory substitution. Code, section 3281. In this case, the appellant makes 'no claim by virtue of the statute, but asserts that the devise, of which he claims the benefit, is made directly to him as one of a class which the testator has designated and described. The distinction between the claim which was adjudicated in the Nicholson case and the one we have here
We are further cited by appellee to Dunn v. Cory, 56 N. J. Eq. 507 (39 Atl. 368) and Tiffany v. Emmet, 24 R. I. 411 (53 Atl. 281), as supporting the ruling of the trial court. In the Tiffany case, the principal question in dispute was whether the word “children” could properly be construed to include grandchildren, and has little, if any, bearing upon the question we are here considering. In the Dunn case, decided by a New Jersey court, the will provided gifts for certain persons, and then directed the disposition of such gifts in case of the death of any of said “legatees” before the will became effective. In holding that the word “legatees” did not include persons dead at the date of the will, the court recognized the very rule for which the appellant in this case is contending, saying: “If the language of the clause had been, ‘in case
The Outcalt case here referred to is valuable for its quite thorough citation and discussion of pertinent authorities. In the will there being construed, after providing certain gifts, the testator directed that after his wife’s death the residue of his estate should be divided “among my several children, share and share alike, and in the event of any of my said children dying before my said wife and leaving issue then -surviving, then such issue ©hall be entitled to 'receive 'their parent’s share.” The testator left five surviving children and two grandchildren, the children of a predeceased son. It was held that these grandchildren took as devisees- under the will. In so holding, the court cites with approval the following cases:
Potter’s Trust, L. R. 8 Eq. 52, where -a -devise -to nephews and nieces1, children of a deceased sister, “and in case of the death of any of my said nephews and nieces leaving issue, then I direct that such issue shall take the share that' his or her or their deceased parent would have taken if living.” This gift, which is quite an apt paraphrase of the one in the instant case, was held to include within its benefits the children of nephews -and nieces dying before the date of the will and of others dying after that date.
Adams v. Adams, L. R. 14 Eq. 246, where it was held that, under -a similar devise to brothers and sisters, the children of a brother, who h-ad been dead fifteen years at the date of the will, were held to be within the class1 of dtevisees.
Chapman’s Will, 32 Beav. 382, where a gift was made
Discussing the rule of these authorities, the New Jersey court, supra, says that they are based upon the principle that, “wherever there is a gift to a class, with a gift by substitution to the issue or children of those who shall die, the children take what their parents would have taken, if living, at the testator’s death, without regard to the question whether the parent died before or after the date of the will, unless a contrary intention is shown.” “But,” adds the Chancellor, “in these eases no new rule was necessary; for there was an independent gift to the issue. It is said by Mr. Theobald that if the original gift is to a class, with a direction that the issue of any dying in the testator’s lifetime, or before the period of distribution, shall take the share which their parents would have been entitled to, if then living, the issue of those dead at the date of the will will be admitted, as the direction amounts to an independent gift.”
The following devises to a class or .classes have been held to include the children of deceased persons who, had they been living at the date of the will, would admittedly have come within its designation. Estate to be “equally divided among my children who may be living at the time of such distribution and in case any of them should be deceased, their heirs to receive in equal parts such share as their parents would be entitled to receive were they living.” Long v. Labor, 8 Pa. 229. To be equally divided
Where a residuary devise was made to a class, consisting of those persons to whom the estate would descend by law in the absence of a will, with the provision that the child or children of any deceased parent should take th‘e share of such person by right of representation, and where it appeared that the testator’s nearest kin were first cousins, it was held that the child of a first cousin, who died before the will was made was a devisee. Woodward’s Estate, 84 Minn. 161 (86 N. W. 1004). “To my brothers and sisters and their heirs.” Huntress v. Place, 137 Mass. 409.
It should be said in this connection, however, that in Massachusetts, in a gift to a certain class of persons “and their heirs,” the words “their heirs” are ordinarily construed as words of limitation, and not of purchase. Adams v. Jones, 176 Mass. 185, (57 N. E. 362).
Discussing the same question we have before us, the court, in Loring v. Thomas, 1 Dr. & Sm. 497, say that, while the testator may restrict his bounty to persons liv
In Pimel v. Betjemann, 183 N. Y. 194 (76 N. E. 157, 2 L. R. A. (N. S.) 580, 5 Ann. Cas. 239), cited by appellee, the will did not expressly include the children of deceased persons among its beneficiaries, and the decision turns upon the question of -statutory 'substitution; (thus bringing that question in a class with our own Nicholson case, and not in point upon this appeal. The same may be said of most of the cases relied upon to support the decree below.
We close this reference to specific cases with a few suggestive words, quoted from the Vermont court (Bronson v. Phelps, supra), and the New York court, (Crawford’s case, 113 N. Y. 366 (21 N. E. 142). In the first of these cases, the court says, in language pertinently applicable to the instant ease:
The testator knew of the death of Sophia Wilbur and Caroline Eomane at the time he made his will, and that they had left children surviving them; and it is very evident that, if he had intended to exclude their issue from sharing in the bequests, he would not have used the general language adopted in making it. If he had intended to limit the gift to the children of Olarissa living at the date of his will and their particular representatives, he would have used words apt -to such a limitation, and made the bequest 'to the children living at the time, and to their representatives of such of the then living children as should decease before the time of enjoyment. The general words of the bequest must receive their ordinary interpretation, and be used in their ordinary sense and meaning, unless some other is ' clearly indicated.....Without any studied effort to restrict its meaning, the language used indicated that the testator contemplated all of the children,
In the other case, the court, in holding devise of this nature to- be primary, -and not by way of substitution, say th-alt it comes within the rule of those cases.
• In which the words following a gift to a class are introduced in form -or in effect by way of proviso, and are construed as adding to the class who are to participate, defined in the prior clause, -another clause, viz., the issue of deceased persons of such class, a-t whatever time they may have died, whether before or after the date of the will; such issue constituting another and distinct class by way of original and substantive limitation. In cases of this kind, it is held that the issue take as primary legatees, and not -as representatives, by way of substitution to interests given in the prior clause. . . . The diversity of opinion -arises in many eases-, I apprehend, from the mental attitude in which the particular judge approaches the consideration of such a. question; that is, whether he leans to a strict and literal construction of the language of a will, or to a liberal and broad construction, in aid of the probable intention of the testator. The tendency, how* ever, is towards the inclusion of issue of predeceased ■children. The cases are collected by Jarman (2 Jar. 771 et seq.), and he states that even where there is no original- and independent gift to the issue, but the claim is founded on a clause apparently of mere substitution, • the court anxiously lays hold of slight expressions as a ground for avoiding a construction which, in all probability, defeats the -actual intention, by excluding the issue of a deceased child from participation in a family provision.
Again in the Bronson case, supra, the Vermont court makes the same point, saying that when the testator made his will he knew of the death of certain persons who, if
For the reasons stated, the decree of the district court is reversed, and the cause remanded for the entry of a decree in harmony with this opinion. — Reversed.