59 A. 740 | R.I. | 1904
This is a case stated for an opinion as to the construction of certain clauses of the will of William A. Fiske, and is brought under the provisions of Gen. Laws R.I. cap. 240, § 24.
The facts are these: William A. Fiske died on April 19, 1904, leaving a last will and testament which was duly admitted to probate, and which, in so far as it is material in determining the questions propounded, is as follows:
"First. I give, devise and bequeath to my wife, Susan W. Fiske, all my estate, real, personal and mixed, of which I shall die possessed, or to which I shall be in any wise entitled at my decease, for and during her natural life; with full power to sell the real estate and, at her discretion, to re-invest the proceeds of such sale or sales. Furthermore, if the income and profits of my said estate shall not prove sufficient for the proper and comfortable support and maintenance of my said wife, I authorize and empower her to use for that purpose as much of *511 the principal of said estate as she may deem wise and best. Meaning and intending that my said wife shall have full power to use as much of my said estate, principal, interest, income and profits, as she shall choose for her own maintenance and support. . . .
"Third. One-half of all that shall remain of my said estate at the death of my said wife, I give, devise and bequeath to the use of such person or persons, for such purposes and in such manner, as my said wife shall by will or codicil appoint; and in default of such appointment, and so far as any appointment by her shall not extend, to the heirs at law of my said wife living at the time of her decease.
"Fourth. The remaining half-part of that portion of my said estate remaining at the death of my said wife, I give, devise and bequeath to my brothers Albert L. Fiske and Edward W. Fiske, the same to be equally divided between them, share and share alike, to them, their heirs and assigns forever."
Susan W. Fiske, wife of the deceased, died before his decease, intestate, and left as her heirs at law, three sisters and a half-sister, all of whom are still living, namely, Helen F. Beaton, Hannah G. Love, Harriet Waterman, and Sarah P. Andrews, the last named being the half-sister.
The heirs at law of the testator are his two brothers, now living, viz.: Edward W. Fiske, of Cumberland; Albert L. Fiske, of Providence; and the children of two sisters now deceased, viz.: Adelaide Simmons, only child of Emeline Fiske Walker, deceased, and Robert Walker, Markus B. Walker, Henry B. Walker, and Anna Britt, children of Mariana Fiske Walker, of Cranston, deceased, all of them being of lawful age.
The persons thus named, together with the plaintiff Walter E. Fiske, who is the administrator, c.t.a., of the estate, are all the parties in any way interested in the estate in question.
In view of these facts the following questions are propounded for our determination, viz.:
1. Does any part of the said estate pass by the third paragraph of said will and testament to the heirs at law of the said Susan W. Fiske, in default of her testacy, she having died in the lifetime of the testator, and if so, what? *512
2. If no, does the moiety of the said estate set apart in said will for the benefit of the said wife pass to the two brothers named in the fourth paragraph of said will and testament, or as intestate estate to be divided among all the heirs at law of said decedent?
3. Does any estate or property, if any there be, accruing or acquired by the testator, after the death of the said Susan W. Fiske, become intestate estate to be divided between the heirs at law of said decedent, or pass to the two brothers named in paragraph fourth, or does said paragraph only take effect upon that portion of the estate which was in esse or possession at the date of the decease of said Susan W. Fiske?
In answer to the first question we reply that in our opinion one-half part of the entire estate in question passed to the heirs at law of Susan W. Fiske, under the third clause of said will.
It is very clear that the testator intended that all of his estate, after his wife had been provided for out of it during her life, should go, one-half thereof to the heirs at law of his wife living at the time of her decease, and the other half thereof to his two brothers named therein. The natural and literal construction of the will is plainly to that effect. And where the language is clear and explicit, it must prevail. Perry v.Hunter, 2 R.I., 86; Wood v. Mason, 17 R.I. p. 103. Moreover, this construction is strengthened, and the construction contended for by some of the heirs of William A. Fiske, viz., the children of his deceased sisters, is weakened, by the well-established rule of construction that a will should not be so construed as to cause a partial intestacy, unless it can not reasonably be otherwise interpreted. Pell v. Mercer, 14 R.I. p. 427; Wood
v. Mason, supra, at p. 103; Smith v. Greene,
By the death of testator's wife in his lifetime, and after the execution of his will, all the gifts and powers to her thereunder lapsed and became a nullity. And so far as the rights of the residuary devisees mentioned in the fourth clause of the will are concerned, they stand precisely the same as though the testator had willed said estate to them directly. At the death of the testator, therefore, one-half of the real estate which he *513 left vested immediately in his two brothers named in said fourth clause, without any postponement for an intervening life estate, that contingency having failed by the death of the testator's wife before the will took effect; and the other half thereof vested immediately in the sisters of testator's wife. Gen. Laws R.I. cap. 203, § 7;1 Amer. Eng. Ency. L., vol. 18, 2nd ed., p. 725. The lapse of the life estate of Susan W. Fiske merely accelerates the estates given in remainder by the third and fourth clauses of the will.
Counsel for the administrator contends that the dual bequests to the wife contained in said first clause of the will lapsed by her death in the lifetime of the testator, and hence that the estate devised to her became intestate estate of said decedent. His argument, as we understand it, is that as the power bequeathed was absolute, and as it lapsed by the death of the done thereof, the devise of the estate is as though it were to the wife and her heirs; that is, an absolute gift to them. And that this absolute gift would lapse also by her death in the lifetime of the testator.
We can not assent to this contention. The gift to the wife of the powers referred to did not have the effect to make her estate an absolute one under the decisions of this court. Thus, inRhode Island Hospital Trust Co. v. Commercial Bank,
Tilton, Petitioner,
The wife's estate in the will before us was a particular estate, expressly given, and the power of appointment in the manner specified in said third clause did not enlarge the same.
In McLean v. Freeman,
See also the following cases, cited in the brief of counsel for Hannah G. Love, viz.: Robison v. Female Orphan Asylum,
In support of the contention of counsel for administrator, that by the death of testator's wife in his lifetime the estate lapsed and vested in his heirs at law, he cites the following extracts from Jarman on Wills, vol. 1, *p. 307, et seq., viz.: "The liability of a testamentary gift to failure, or as it is usually termed lapse, by reason of the decease of its object in the testator's lifetime, is a necessary consequence of the ambulatory nature of wills, which, not taking effect until the death of the testator, can communicate no benefit to persons who previously die. . . . Even a declaration that the devise or bequest shall not lapse, does not per se, prevent it from failing by the death of the object in the testator's lifetime."
To this second extract should be added the remainder of the sentence, which is as follows: "Since negative words do not amount to a gift. And the only mode of excluding a title of whomsoever the law, in the absence of disposition, constitutes the successor to the property, is to give it to some one else."
On *p. 310 the same author says: "If no appointment is made, and there is no gift over in default of appointment, only the objects who survive the donee will be capable of taking by implication."
It is plain from this statement of the law, which is undoubtedly correct, that where there is a gift over and a default of appointment the object named in the gift over will take.
In the will before us no appointment was made, but there was a gift over in case of such a contingency. The language of the will is: "and in default of such appointment, and so far as any appointment by her shall not extend, to the heirs at law of my said wife living at the time of her decease." This *516 provision clearly takes the case out of the general rule relied on by counsel for the administrator and brings it within the rule heretofore recognized and adopted by this court in the cases referred to.
As said by counsel for Mrs. Love: "The intent of the testator is clear. He wished to give half of his estate to his own family and half to his wife's family. He provided that his wife should have the power to choose the beneficiaries on her side, and that if for any reason she did not care to exercise this power, one-half of the estate should go to her heirs."
In Crozier v. Bray, supra, there was a devise of a life estate with power to use and dispose, and then a devise of "all that may remain of the property of my wife at her decease." And it was held that the death of the wife before that of the testator accelerated the remainders so that they took effect at once on the decease of the testator. See also Davoll v. Fieldet al.,
Under the law as above stated we think it is clear that the devises over in the third and fourth clauses of the will in question took effect immediately upon the death of the testator The lapse of life estate devised to Susan W. Fiske merely accelerated the estate given by said clauses.
As we are of opinion, then, that all of the estate which the testator left is to be divided in manner aforesaid, that is, one-half part thereof to the four sisters of Susan W. Fiske, deceased, hereinbefore named, in equal shares, and the other half part thereof to the two brothers of the testator above named, in equal shares, there is no occasion for us to consider any of the remaining questions above propounded.