11 Gratt. 67 | Va. | 1854
Where a devise or testamentary gift is made to several, with words of survivorship annexed, or where the gift is to such of a class as shall survive, it becomes important to ascertain to what period the words of survivorship are intended to refer. Where no previous particular estate is interposed, but the gift is to take effect in possession immediately on the death of the testator, the established rule of construction is, to refer the words of survivorship to that event, and to regard them as designed to provide against the contingency of the death of the objects of the testator’s bounty in his life time. Where, however, the gift is not to take effect in possession immediately upon the death of the testator, but a previous estate for life, or other particular estate, is interposed,
It may admit of very grave question whether this is a subject upon which anything like a fixed rule of construction can be established. The question, and the only legitimate enquiry, is, what is the intention of the testator. As was said by Sir William Grant, in Newton v. Ayscough, 19 Ves. R. 534, the period to which the survivorship relates depends not upon any technical words, but upon the apparent intention of the testator collected from the particular disposition or the general context of the will. Lord Alvanley expressed the same opinion in effect in Russel v. Long, 4 Ves. R. 551. And in Cripps v. Walcott, 4 Madd. R. 11, Sir J. Leach, speaking of the construction which refers the survivorship to the period of division, evidently considers it as only applying in the absence of a manifestation of a special intent. Where that appears it must prevail and control the construction. What may be the true intention of the testator in any case is best deduced from the terms and provisions of the will when viewed in the light of the surrounding circumstances which attended the execution. To seek to determine it by applying arbitrary rules and technical principles, with which testators, and those who write their wills, are, in a very large majority of cases, ut- ' terly unacquainted, would be most unprofitable and hazardous.
It is true that Judge Parker, in delivering his opinion, (in which three of the other judges concurred,) says that if the rule were otherwise than as he had maintained it to be, he should still be of opinion that the words of the will in that case sufficiently showed a special intent that the interest should vest at the death of the testator. But he enters fully into the general question, and upon a review of the authorities, concludes that the true rule is that of the earlier English cases which have been hereinbefore referred to.
This case must therefore be regarded as authority in cases in which no special intent appears in the will, and as ruling such as are not essentially distinguishable from it.
The counsel for the appellant insists that this case is so distinguishable from Hansford v. Elliott, that the
The argument drawn from the consideration that in Hansford v. Elliott, if none of the children had survived the tenant for life, a total intestacy would have been the consequence, (a result which the testator could not be supposed to have intended,) while in this case the construction contended for by the counsel would not be attended with such a result, can have little force or effect to withdraw this case from the influence of the reasoning in the former. It is a sufficient answer to it to remark, that such an intestacy would not be the result of either construction contended for in this case. Indeed one of the reasons which suggests itself for the preference of the rule which refers words of survivorship to the death of the testator to that which looks to the death of the tenant for life, is, that in a large majority of cases, the former will be less likely than the latter to occasion a total intestacy, and thus bring about a state of things which the testator manifestly did not intend to exist.
It will be seen, in a learned work on the subject of wills, (2 Jarm. on Wills 647,) the author regards such a provision in a will as furnishing no real distinction between it and the cases in which the words of survivorship had been referred to the death of the testator. And he attributes to Sir William Grant probable disapprobation both of the reasoning which led to the adoption of the rule in those cases, and of this distinction (without a difference) which had been engrafted upon it by Lord Loughborough. The case to which he refers as evincing the view probably entertained by Sir William Grant, is Daniell v. Daniell, 6 Ves. R. 297.
In the case of Hansford v. Elliott, President Tucker dissented from the opinion of the other judges upon this question. But it will be observed upon examining the opinion delivered by him, that had that case contained a particular feature which is found to exist in this, he would have concurred in the judgment of the court. He said that if it had appeared the testator had lost a child before the date of his will, the natural construction of the word “ surviving” would be to refer it to that event. In this case, it does appear that the testator had lost a daughter, Mrs. Cowles, before the making of his will, and that circumstance was doubtless in his mind at that time, because he makes a bequest of one hundred dollars to her son. And according to the opinion of Judge Tucker, the expression “ surviving children” should be construed to mean those who were living at the date of the will; who would thus take a vested interest at the death of the testator. In the case of Neathway v. Reed, Lord Justice Knight Bruce seems disposed to give the same construction to the words of survivorship which is given by Judge Tucker in the case supposed by him, and which is the actual case here. It is unnecessary,
In conclusion, I would remark that the particular bequest under consideration cannot be read in the sense given to it by the construction contended for by the appellant’s counsel, without a plain departure from the literal import of the terms employed. Those terms are “ between all my surviving children, or their heirs.” Heirs of whom? Certainly not of any child or children that might be living at the death of the tenant for life. Nemo est díceres viventis. The appellant’s counsel says the terms used are not to be understood according to their literal import, and that the true meaning is that the 'property is to be divided between such of the children as should be living at the death of the tenant for life and the heirs or descendants of such as should have died; the latter to take per stirpes, unless all the testator’s children should then be dead; in which event, the grand children would take per capita. But this construction would embrace exactly the same persons as participants in the testator’s bounty as if he had said, “ to my children and their heirs,” entirely omitting the word “surviving,” and changing “ or” into “ and.” Tet some effect must be given to this word “ surviving,” because some meaning must if possible be assigned to every word in the will. Turner, lord justice, in Neathway v. Reed. I take it, that where some meaning can be given to a word, it must receive it, unless it will occasion some incurable repugnance between different parts of the will, or violate the plain intention of the testator. And although it may be admissible to replace the disjunctive with
terest into a contingent remainder, against the known preference of the law to construe an estate to be the former rather than the latter. On the other hand, if we will suppose that the testator, in using the words “ my surviving children, or their heirs,” could not have had in mind only those of his children who should be living at the death of the tenant for life, but must have intended to provide for the children or descendants of such of them as, though then surviving at the date of the will, or who might be surviving at his decease, might yet die in the life time of the tenant for life, all difficulty is avoided, and the natural and literal import of all the words used is preserved: and the effect is to confer a vested interest upon all the children who were living at the death of the testator.
I am of opinion to affirm the decree.
Allen, Moncure and Samuels, Js. concurred in the opinion of Lee, J.
Daniel, J. dissented.
Decree appirmeb.