Miller v. Worrall

Dec 9, 1899

Versions:14 Dickinson 134

59 N.J. Eq. 134

44 A. 890

1899 N.J. Ch. LEXIS 18

Stevens, V. C.

By his will, Jоhn Jelliff gave all his property, real and personal, to his executоrs in trust [inter alia) to pay to his wife during her life, for the support of herself and his maiden daughtеrs, such amounts, not exceeding the net income of his estate, as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍she might request. By a codicil he directed his executors, upon the death of his wife, to settle and close up his estate with all convenient speed,

“аnd divide the entire amount thereof equally between my children, share and share alike, to whom I do hereby give, devise and bequeath the same, their hеirs and assigns forever, the children of any deceased child to have thе share of his, her or their parent.”

*135One of the children, Caroline A. Riggs, died without lеaving issue, in the lifetime of testator’s widow, who is now also dead, and the questiоn is whether her executors are entitled to her share. The contentiоn of these ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍executors is that such share vested at the death of testator, and that nothing has since occurred to divest it. The contention of thе surviving children is that the gift was contingent upon her surviving the widow.

The rule applicable is thus formulated by Jarman:

“The children, if any, living at the death of the testator take an immediately-vested interest in their shares, subjеct to the diminution of those shares (i. e., to their being divested pro tanlo as the number of objects is augmented by future births), during the life of the tenant for life, and consequently on the death of any of the children ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍during the life of the tenant for life, their shares (if their interest therein is transmissible) devolve to their respective representatives.” % Jarm. Wills *76.

That; such a gift vests at the death of testator, has been settled in this state by the casеs of Howell’s Executors v. Green, 2 Vr. 570, and Post v. Herberts Executors, 12 C. E. Gr. 542. .The ease at bar is rather stronger than either of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍those casеs, for in the first the provision was “ after her \i. e., the life tenant’s] decease, I give and bequeath,” and in the second, the gift was fоund only in the direction to divide, while here, the gift is both express and immediate, “I dо hereby give, devise and bequeath,” the direction to divide being superadded.

It is said, however, that the codicil must be construed in the light of all the provisions of the will, and that so construed it appears to have been testаtor’s intention that those children only should take who might survive the period of distributiоn. I can find no such intention. The argument from the clause imposing a restraint on alienation is inconclusive and cuts both ways, and the direction to divide lapsed legacies may be appropriately ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍referred to the case of a child who dies without leaving issue, in the lifetime of testator. The only other clause bearing on the subject is the fourth, and this supports, rather than militates against, the contention of Mrs. Riggs’ executors, for it authorizes а payment to the children, of the principal of their prospeсtive shares, not exceeding five per cent, in any one year, in the lifеtime of the widow, if she consents.

*136It was argued that testator did not intend to divide his children into two classes, viz., those who might have issue and those who might not. I am unable to see the force of this argument. By'the express provisions of the will, if a child dies before the period of distribution and leaves children, those сhildren take, by substitution, for the parent. In this event, and in this event only, is the right of the child сurtailed. In every other event it remains. If it is not taken from those who die without lеaving issue, it is because the testator has so willed. His will, as we find it expressed in testamentary form, is that the gift shall be vested, except in so far as it is exprеssly divested. Beatty’s Administrators v. Montgomery’s Executrix, 6 C. E. Gr. 324; Harrison v. Foreman, 5 Ves. 207; Salisbury v. Petty, 3 Ha. 86.

By the sixth clause of his will, testator provides that if “ a sale, assignment оr pledge” be made by any of his children of their interest, it shall work a forfeiture thereof. It is plain that the making of a will by Mrs. Riggs, which took effect only after dеath, is not an “assignment” of her share within the meaning of this clause. The testator is here using technical words which, in a provision of this sort, must receive their technical meaning. “The idea of an assignment is essentially that of transfer by one existing party to another existing party.” Hight v. Sackett, 34 N. Y. 447.