Henderson v. HendersonHenderson v. Henderson
Ettiе Henderson died leaving a will by which she disposed of her entire estate, real and personal. After making specific bequests and devisеs, chiefly to her children and grandchildren, and after nominating Henry Y. Condict and her two sons, William and Francis, executors, she provided as follоws:
“In the event of the inability of Mr. H. V. Condict to serve as my executor, I appoint Mr. Walter Condict to serve in his place, and be it understoоd that no debts are owing by any relative.”
The will charges that after the making of this will her son Frank, the defendant, became indebted to her in the sum of $3,000.
The will was made on December 13th, 1906. The testatrix died in October, 1909. The question is whether the debt con
The defendant’s contention is that a will speaks as of the time immediately .precеding testator’s death; that, consequently, Mrs. Henderson must be regarded as having, at that time, declared that no debts were owing by any relative, and that 'the effect of this declaration was to discharge all her relatives, and, consequently, her son, from the payment of all or аny debts owing by them that would otherwise have been due her estate.
It is no doubt true that a will is for some purposes regarded as speaking from the death. All property fairly falling within the descriptive words will pass whether acquired before or after the making of the will. It is said, that the rule thаt it so speaks, applies to the effect and operation of the will; to the ascertainment of the property passing by it, but thаt it does not apply to its construction. Gray v. Hattersley, 50 N. J. Eq. (5 Dick.) 213. It has, aeeordingfy, been held that if the gift be to “my beloved wife,” the bequest is to the wife living when the will was made, not to the second wife living at testator’s decease; that if the bequest be to the parish in which testator is living, it goes to the parish in which testator lived at the time he made his will, and not to the parish into which he has removed and may have been living at the time of his death. Garret v. Niblock, 1 Russ. & M. 629. The rule as to the ademption of specific bequests is another illustration. 1 Jarm. Wills *280. In Smallman v. Goolden, 1 Cox 329, testator gave to his son “all sum and sums of money due to me from him on bond or bonds or any other security,” and Sir Lloyd Kenyon held that he must suppose testator meant to measure the bounty according to the situation at the time of making the will and could not have in contemplation any future sums of money which the son might owe him. He therefore held that the subsequent bond was not included in the bequest. It is true that this case was criticised by Chancellor "Walworth in Van Vechten v. Van Vechten,
In Douglas v. Douglas, Kay 400, Lord Ilatherly, in another case under the same statute, said that a gift of all my stock would pass all stock to which the testator was entitled at his death, but that a gift of all my stock which I have purchased would be confined to stock actually purchased at the date of the will. The will there provided:
“I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland and which money has according to the laws of Scotland, been charged thereon;”
and the decision was, that the exoneration only applied to moneys so charged at the date of the will and not to moneys afterward laid out and charged, and not even tо moneys then laid out but afterwards charged. The statute under which this was decided' (1 Viet. ch. 26 § 2Jf) enacted that
‘'every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and, take effect immediately before the death of the testаtor unless a contrary intention shall appear by the will.”
It has been regarded as imposing a more rigid rule of construction, in respect of personalty bequeathed, than had theretofore prevailed. In re Ord, 12 Ch. Div. 22; In re Portal, 27 Ch. Div. 600. It has not been copied into the legislation of this state; sеction 24 of the Wills act merely providing that real estate acquired by testator after the making of his will shall pass,' &c., unless a contrary intention be manifest on its face.
Whom shе meant by the term “relative” it is hard to say. Where a gift is made to “relations,” courts, from the necessity of the case, give the word an artifiсial meaning in order to give it any effect at all. They confine it to relatives entitled under the statute of distributions and to persons who havе married relatives so entitled. 2 Wms. Ex. *1003. Do the words themselves indicate (for there is no other indication) that when testatrix said on December 13th, 1906, “be it understood that no debts are owing by any relative” what she meant was “I release all debts that may be owing to me at the time of my death by persons entitled under the statute of distributions and by those who have married such persons?” So to hold would indeed be carrying construction to а fantastic limit. The assumptions would be — first, that when she said no debts are owing she meant not then owing but owing when she died; second, that although she said no debts are owing, what she meant was, that if debts should be owing at her death she released them; third, that debts owing by relatives not entitled under the statute of distributions she did not release; or, if this be regarded as too strained, that she released every debtor who might establish relationship to the twentieth or thirtieth degree of consanguinity. I am unwilling to draw from language so simple and sо intelligible a series of implications so purely conjectural. Looking at