111 Kan. 380 | Kan. | 1922
The opinion of the court was delivered by
This is an action to obtain a construction of the will of Samuel S. Kincaid. Two nieces to whom specific legacies were bequeathed, and who were also named among the seven residuary legatees, died without issue before the testator, and the questions involved are as to the proper disposition of the shares of the estate which would have gone to them if they had survived him. The trial court decided (1) that the amount of their specific legacies should be paid in equal parts to their sister and two brothers (who are the plaintiffs herein) on the theory that what they were to receive from this source was intended as a part of a gift to a class composed .of the two brothers and the three sisters; and (2) that what they would have received as residuary legatees should be distributed among the other residuary-legatees named in the will in the same proportion as the general residue. One other legatee died before the testator, but he was survived by four children who take his share by representation (Gen. Stat. 1915, §11811), and for simplicity of statement the matter will be discussed as though he were still alive.
The plaintiffs, as already indicated, are the two brothers and the sister of the legatees who died. They appeal from the second part of the decision and contend that the shares these two would have received as residuary legatees (including-their specific legacies if the trial court shall be held to have erred in awarding this part of the estate to the plaintiffs) should be distributed as though Samuel S. Kincaid had died intestate. The defendants are the residuary legatees other than the two who died. They appeal from the first part of the decision and contend that they are entitled to all the property that would have gone to the two legatees who died, if they had lived.
The testator left neither wife nor children. Aside from a number of minor specific legacies which do not affect the matter in con- ’ troversy he left his whole estate to the three living children of a dead brother, James O. Kincaid, one of whose children also had died before the execution of the will, leaving a number of children for whom no provision was made; to the two children of his dead
“Sixth. I give and bequeath to the children of my sister Rachel Rinehart Twenty-Five Thousand Dollars to be divided as follows:
“Benjamin K. Rinehart, of Castle Rock, Montana, is to have Twenty-Five Hundred Dollars ($2500) absolutely. But he is to have no share in the residue and remainder of my estate.
“Winfield Rinehart, of-, Colorado, is to have Twenty-Five Hundred '
($2500) Dollars absolutely, but he is to have no share in the residue and remainder of my estate.
“Mattie Rinehart, of Tucson, Arizona, is to have Sixty-Five Hundred Dollars ($6500) absolutely.-
“Frances Rinehart of Tucson, Arizona, is to have Sixty-Five Hundred Dollars ($6500) absolutely. It is further my will that if this legatee (who is now far gone with consumption) should die before my estate is distributed, that this Sixty-Five Hundred Dollars ($6500) be added to the share of her sister Mattie Rinehart to compensate her for the years of nursing and care she has bestowed on her sister during her sickness.
“Rachel L. (commonly called Dolly) Corbett of-, Kentucky, is to have Seven Thousand Dollars ($7000) absolutely, but is to have no share in the residue and remainder of my estate.”
“Ninth. I give and bequeath all the rest, residue and remainder of my estate wheresoever the same may be situated to William R. Kincaid, Minnie O. Freemyer, Thomas F. Kincaid, Thomas K. Bell, Mrs. M. E. Morse, Mattie Rinehart and Frances Rinehart, the same to be divided among them in the same proportion as their former bequests bear to the whole sum bequeathed them. Sixty-Three Thousand Dollars ($63,000).”
Í. The ordinary situation in which a legacy or devise is regarded as made to a class rather than to the individuals composing it (a • consequence being that on the death of one member before the testator his share goes to the other members and not to the residuary legatees or heirs) arises where a gift is made to a group of an uncertain number, the amount each is to receive not being determined. But even if the beneficiaries are named they may be treated as a class, if an intention to that effect is otherwise shown. (40 Cyc.
2. A lapsed legacy ordinarily falls into the residue and inures to the benefit of the residuary, legatees! It is a rule of the English common law, however, which has met with considerable acceptance in this country, that on the death before -the testator of one of several residuary legatees (who do not take jointly or as members of a class) his share goes, not to the others, but to whoever would have inherited the property in case no will had been made.. (40 Cyc. 1952, note 59; 28 R. C. L. 338, 339, notes 1 and 2; note, 44 L. R. A., n. s., 811-813.) In one state the court has held to the contrary, but without discussing the cases by which the rule is supported. (Gray
“. . . it was held in Skrymsher v. Northcote, 1 Swanst. 566, [1818] that a lapsed portion of a residuary bequest went to the next of kin, and not to the other residuary legatees, on the ground that the latter were given specific portions of the residuum, and could not take more by the intent of the will, and receiving the bequest in common and not jointly, there could be no increase by survivorship. The rule thus established does not commend itself to sound reasoning, and is a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all. The rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chancery, to keep the devolution of property in the regular channels, to the heir and next of kin, whenever it can be done. If the question were new in this state, speaking for myself I should not hesitate to reject the English rule as wrong in principle and subversive of the great canon of construction, the carrying out of the intent of the testator.” (Gray’s Estate, 147 Pa. St. 67, 74.)
“The English rule, as we said in Gray’s Estate, 147 Pa. St. 67, does not commend itself to sound reasoning, or'to the preservation óf the testator’s actual intent; but we found it recognized and accepted in our own cases before these particulars in its application arose, and we felt ourselves bound by it.” (Waln’s Estate, 156 Pa. St. 194, 197.)
“There is a well-known rule that where residue is given to tenants in common, and one of the tenants in common dies in the testator’s lifetime, the lapsed share does not go as an accretion to the gift to the other tenants in common, but it is held that there is an intestacy and the share goes amongst the next of kin. That is, there can be no residue of a residue. The arguments by which this rule was arrived at are perfectly intelligible and, one may say,*385 plausible. Nevertheless I think that the effect of it is to defeat the testator’s intention in almost every case in which it is applied; but it is a rule by which I am undoubtedly bound.” (In re Dunster [1909], 1 Ch. 103, 105.)
In Aitken v. Sharp, [N. J. Eq.] 115 Atl. 912, the rule was recognized as binding upon the court by reason of prior decisions, but was held not to be applicable in the case there under consideration because in describing the property disposed of by the residuary clause the phrase was inserted: “including lapsed legacies.” Such a phrase has been said to be superfluous, inasmuch as lapsed legacies ordinarily fall into the residue. (Nickerson v. Bragg, 21 R. I. 296.) It might readily be interpreted as amounting merely to an express declaration by the testator that his meaning is just what the law would presume him to mean were the phrase omitted. In the opinion in the New Jersey case, however, it was said:
“Neither the industry of counsel nor my own examination have discovered any case in this state which decides that, where a testator, either by express words or plain implication, provides that gifts of the residue shall not lapse, but shall sink into or continue therein, the testator shall be regarded as dying intestate as to such gifts. I feel, therefore, at liberty to give effect to the intent of the testator regardless of the earlier English decisions above referred to. Taking the entire will into consideration, it is quite plain that the testatrix did not intend to die intestate as to any portion of her property. . She anticipated that some of her beneficiaries might die in her lifetime, and made provision for such event, and therefore in the third paragraph she not only gave to her residuary devisees and legatees all the rest, residue, and remainder of her estate, both real and personal, in certain proportions, but she expressly provided that such residue should include lapsed legacies.” (p. 915.)
This court has not heretofore had occasion to decide whether to follow the rule requiring the lapsed share of one of several residuary legatees to be treated as property undisposed of by the will. We might now avoid deciding that question by holding — as we think the facts justify — that in any event there áre special features of the will under consideration which would require a decision in favor of the surviving residuary legatees. One of them is the circumstance that the residue of the estate is larger than the part disposed of by specific legacies, which gives added force to the presumption that the testator refrained from giving all his property to the residuaries' only for the sake of the particular legatees. More important, however, is this consideration: Of the ten nieces and nephews to whom specific legacies were given, seven were also made residuary legatees. In the case of each of the other three the language relating to the
We regard the rule that lapsed shares of deceased residuary legatees shall be treated as intestate property as in direct conflict with the one to which this court is definitely committed — that the actual purpose of the testator, so far as it can be ascertained, must be given effect. The presumption against intestacy of any part of the estate is a means of carrying out this policy which is disregarded by taking lapsed legacies out of the residue for the benefit of those who would inherit from the decedent in the absence of a will. The reasons for allowing lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees in the case of the death of one of them, instead of turning over a part of it to persons for whom other provision had been made, or who had not been referred to in the will at all. The statement sometimes made in support of the latter practice — that the share of a deceased residuary legatee cannot fall into the residue because it is itself a part of the residue — appears rather to play upon words than to point out any real difficulty. The result of these views is the approval of the ruling of the court distributing the residue of the estate among the residuary legatees who survived the testator.
3. It remains to determine the disposal of the amounts of the specific legacies to the nieces who died before the testator. The plaintiffs contend that if this money is not to be paid to them as
The cause is remanded with directions .to modify the judgment ’ in accordance herewith. The costs of the appeal as well as of the case in the district court may properly be regarded as a part of the expense of administration, and will be taxed against the executor, to be paid from the assets of the estate.