150 A. 126 | Vt. | 1930
Chester B. Walbridge died at Sharon, Vt., on August 13, 1922. He left a properly executed will dated April 7, 1913, the residuary clause of which reads as follows: "VI. All the rest, residue and remainder of my estate, real and personal, I give and devise to my said wife for her use during her life-time. And at her decease it is my will that said residue vest in my cousins who may survive my said wife (including my cousin Edna L. Chadwick before mentioned) and if any such cousin shall have deceased leaving children who are then living, it is my will that such children take the share of the cousin so deceased."
Edna L. Chadwick did not survive the testator's widow. The latter died November 15, 1928. As shown by the record, the cousins of the testator may be divided into three groups: (1) Those who outlived the testator, and either survived his widow or left children who did. (2) Those who were alive when the will was executed, but died prior to the testator's death, leaving children who survived his widow. (3) Those who died prior to the date of the will, leaving children who survived the widow. *431
The cousins of group (1) are Charles Albert Walbridge, Ben O. Brewster, and Will E. Heath. Of these all are alive except the first named, who left two children who are now living. The probate court for the district of Hartford, in which the estate is being administered, decreed the residue thereof to the cousins of this group, dividing the Charles Albert Walbridge third between his surviving children. Members of groups (2) and (3) appealed to this Court under G.L. 3451.
To whom does the residuary clause of the will give the residue of the estate?
The appellants contend that it is to be distributed to all those in the three groups of cousins and their children by representation. Or, they say, if this be not so, the residue must go to the cousins of groups (1) and (2), and their children by representation. The appellee insists that the decree below correctly distributes the residue.
It all depends, of course, upon the testator's intention as expressed in the will.
That a will speaks as of the time of the testator's death is a general rule of probate law everywhere recognized and approved by this Court. In re Bugbee's Will,
The children of the cousins of group (3) are not entitled to anything under this will. Not only do we find nothing in the will to warrant an inference that the testator intended a different result than would follow an application of the general rule, but the language of the testator negatives the idea that he intended these children to participate in his bounty. The words "shall have deceased" plainly point to a future rather than a past event. As was said by this Court in Douglas v. James,
Somewhat more difficult is the question regarding the children of the cousins in group (2). Here, again, the general rule, if it applies, excludes them. For, if this will is to speak from the death of the testator, the class to which it applies, as we have seen, is to be determined as of that date, and the "shall have died" clause would mean "shall have died between the date of my death and the death of my widow." And it must *433 be so unless the language used requires a different result in order to effectuate the testator's intention. If he had said "and at her decease it is my will that said residue vest in my cousins who survive my said wife," and had said no more, everything would have been plain enough, and the class would have to be determined as of the date of the wife's death. But the testator added the clause "and if any such cousin shall have deceased," etc. We agree with the appellants that this clause cannot be taken literally. The words "any such cousin," so taken would mean a cousin who survived the wife which would result in an absurdity. But we cannot agree that with the word "such" rejected, the word "any" must be taken to embrace all the cousins the testator ever had. It must be taken to refer to cousins other than those who survived the widow, but to what others is the difficult question. Either it refers to the cousins in group (1), or those in groups (1) and (2); either to those who died after the testator did, or to those who died after the will was made. The case is submitted on an agreed statement of facts. There is nothing shown thereby to aid us in the disposition of the question under discussion. The language used is as consistent with one of the interpretations indicated above as the other. The testator has given us nothing to guide us to a decision. Therefore, there is nothing to do but to apply the general rule. We hold, therefore, that only the cousins in group (1) — those who died after the testator, are covered by the clause referred to, and that the decree below was correct.
Decree affirmed. Let the result be certified to the probatecourt.