10 Del. Ch. 170 | New York Court of Chancery | 1913
The particular clauses to be construed are alike, and each is a gift of a sum of money to a son “and his children,” without other words. At the date of the will and at the death of the testator each son had a child or children living. It is settled by frequent judicial declaration that the word “children” is primarily and presumably a word of purchase and not of limitation, unless there is something in the will to show a contrary intention on the part of the testator. In Delaware it was so held by the Court of Errors and Appeals in Jamison v. McWhorter, 7 Houst. 242, 257, 31 Atl. 517, and by the Superior Court in Caulk v. Caulk, 3 Pennewill 528, 530, 52 Atl. 340.
It seems also to be as clearly settled, that if there be a gift to A. and his children, simpliciter, and there be children of A. living at the date of the will and at the death of the testator,
It is probable that this rule had its origin in Wilds’ Case, 6 Coke 16b. There there was a devise to A. and his children, and at the time of the making of the will A. had children. ■ After laying down the proposition that if A. had not had children at that time it would have been an estate tail in A., the court added:
“I£ a man devise land to A. and to his children or issue, and they then have issue of their bodies, there his express intent may take effect, according to the rule of the common law, and no manifest and certain intent appears in the will to the contrary. And therefore in such case, they shall have but a joint estate for life.”
It is manifest, of course, that according to the statutes in Delaware instead of a joint estate for life there would have been an estate in fee simple as tenants in common. This rule in Wilds’ Case has invariably been recognized, declared and followed, so far as I have seen, in all of the many cases I have examined. This is the natural meaning of the words. The gift is to the son, as well as to his children; to the children as well as to the son; to all alike. A gift to several persons is a gift to them jointly and there is no reason to- have a different rule where the gift is to a man and his children. To change this primary meaning one must go outside the words and in place of the natural and legal import of the words grope by surmise for some other meaning. For more than three centuries that has been an established rule of law as to real estate. Should another meaning be given to the words because the subject-matter of the gift is personal and not real property? No case so holds and no reason has ever been suggested why there should be a different rule applicable to the two kinds of property. True, Wilds’ Case has been commented on in many cases, but it was the other propositions laid down by the court obiter which were discussed. These propositions were rules
Taking the two gifts to Gove and Harry Ennis and their children by themselves it is clear by reason and authority that there was a gift to each of them concurrently with their respective children. There is, however, in the will, taken as a whole, evidence of testamentary intention in confirmation of the application of the foregoing rule. The testator gave to seven of his nine children a sum of money outright, absolutely and without any qualifying words, and then gave to each of his two sons, Gove and Harry, legacies with the additional words “and their children.” This indicated an intention as to the gifts to these
It remains to be considered whether Clifford Ennis, the child of Gove Ennis, bom after the death of the testator, was entitled to share in the legacy given to Gove Ennis and his children. It is also established law in Delaware, that an immediate gift to a class vests in those only who are in existence at the testator’s death and those bom thereafter are excluded. This was established by the Court of Errors and Appeals of this State in State, Use of Richardson v. Raughley, 1 Houst. 561. There the "gift was of the residuary estate to be equally divided among all the testator’s grandchildren, children of his five named daughters, the money to be paid when they arrived at lawful age. It was determined that only such grandchildren of the testator as were in being at his death were entitled to shares in the legacy, and that a child of one of the testator’s daughters bom after the death of the testator was excluded, the gift being immediate, though payment was postponed. See also Doe. dem. Ingram v. Girard, 1 Houst. 276, 286. If the gift is not immediate, but to take effect at some time subsequent to the death of the testator, those members of the class born after the testator’s death and before the vesting of the gift will be entitled with those theretofore members of the class. Of course, under the will of William H. Ennis, the gift is immediate and there is not even a postponement of payment. This necessarily excludes Clifford Ennis, the son of Gove Ennis, as a legatee.