225 N.W. 439 | Minn. | 1929
Lead Opinion
The facts are stipulated. Norman Kittson died testate leaving no wife, issue, or parent. The will, after providing for debts, funeral and administrative expenses, made certain specific bequests and then, by the sixth paragraph, bequeathed the residue in equal shares to his brothers and sisters, naming each, seven of whom were then living, and one sister and one brother being dead. The language disposing of the dead sister's share to her children is the same, the name excepted, as that pertaining to the share of the deceased brother, which reads:
"An equal share to my nephews and nieces (children of my deceased brother, Louis Coyle Kittson) collectively, as survive me, who in turn shall share equally in said total share, which total share is the equivalent to the share given herein to each of my surviving brothers and sisters.
"Providing always, that if any of my said brothers and sisters die before I do without leaving issue him or her surviving, or, if they die leaving issue, which issue do not survive me, then his or her share shall revert to my said estate and become a part and parcel of the residue thereof. Or, if all the children of my deceased sister, Annie K. Heath, or all of the children of my deceased brother, Louis Coyle Kittson, die before I do, the share bequeathed and devised to them respectively, as hereinbefore provided, shall likewise revert to my estate and become a part and parcel of the residue thereof. If, however, any of my said brothers or sisters die before I do leaving issue, him or her surviving, then and in that event the said share which would have gone to said brother or sister if he or she had survived me, shall go to the said issue him or her surviving me by right of representation in equal shares."
The will was made in April, 1923. Norman Kittson died March 31, 1927. Two brothers and one sister died after the will was made *471 and before testator. The brother Louis Coyle Kittson died in 1892, leaving him surviving two children, Lucille Kittson Torry, respondent, and Norman Wolfred Kittson. The latter died in October, 1918, leaving two children, Mary DeCamp Kittson, born July 11, 1916, and Norman Wolfred Kittson, Jr. born September 10, 1918, the two appellants.
If the language of this bequest be considered only in conjunction with the second sentence in the proviso, relating to its lapsing or reverting, there could be no escape from the conclusion that no descendant of Louis Coyle Kittson could take except a child of his who survived testator. The primary or ordinary meaning of the word "nephew," "niece," "child" does not include "grandnephew" or "grandniece" or "grandchild." In re Will of Nicholson,
It is to be assumed that the testator knew that his nephew, the father of appellants, had died five years before and left appellants surviving, and that the only living child of his deceased brother Louis Coyle Kittson was respondent. There was then no reason for a bequest to a class or group if he intended her alone to take. Surely it was inappropriate and misleading to designate her as "children" of Louis Coyle Kittson or as his "nephews and nieces." *472 If he meant her to be the sole legatee, she being the only living child of his brother, these words used in the bequest are wholly needless and confusing, "collectively * * * who in turn shall share equally in said total share," for the whole share was then hers and there was no possibility of any one's coming into existence either to share with her or take in her place. And since there was only one child of Louis Coyle Kittson living when the will was executed, the reference to "all of the children of my deceased brother," in the second sentence of the proviso quoted above, relating to the reverting or lapsing of the share, puzzles the understanding.
The rules for interpreting a will are adequately expressed in In re Estate of Freeman,
The conclusion is strengthened by the interpretation this court had given to G. S. 1923 (2 Mason, 1927) § 8747, which may be assumed to have been in the mind of testator and the draftsman of the will. In Brookhouse v. Pray,
"They are mere 'statute made' legatees, who by force of the provisions of section 5971 [R. S. Ohio 1892] take the place of their father and are given what, but for his death, would have gone to him as primary legatee under said will, and as such substituted legatees * * * in the language of the statute itself, they 'must take in the same manner as he would have done had he survived the testator.' "
There are authorities which hold that this statute is applicable only to issue of legatees of a class dying after the will is made and prior to the death of the testator. Howland v. Slade,
The judgment is reversed with direction to enter one in conformity with this opinion.
Dissenting Opinion
In my judgment the trial court construed the will correctly and its judgment is right.
STONE, J. took no part. *474