31 N.J. Eq. 234 | New York Court of Chancery | 1879
The Yice-Chancellor.
This is a suit for a legacy. The complainant rests Ms right to recover on a bequest made to his intestate, Elizabeth M. Hoe, by her father. Her father died August 8th, 1869, and she, September 1st, 1874. She left two children, both 'born in the life-time of her father, one before he made his will and the other after. The will directs that, after the testator’s estate shall have been converted into money, it shall be divided into twelve shares, and then disposes of the several shares. The gift made to the complainant’s intestate is in the words:
“ I do give unto my daughter, Elizabeth M. Noe, wife of John Noe, one share in addition to what she has already had, her said husband*235 not to have any control of said legacy, but to be hers and her child’s or children’s forever; but, in case she should die, leaving no child or children, the said legacy may be claimed by my other children, according to the tenor of my will.”
If the testator had omitted the words, “but to be hers and her child’s or children’s forever,” his meaning would have been entirely free from doubt. ' Under a bequest thus expressed, his daughter would have taken a vested interest in the subject of the bequest, which could only have been defeated by her death without leaving a child surviving her. But this is not the form of the bequest. The testator has manifested, by clear words, that he intended the children, as well as the mother, should participate in his bounty. In construing a will, its language must be understood according to its plain and ordinary sense, and the will must so read as to give effect, if possible, to every word. Here, in the first instance, the gift is made to the daughter absolutely, and to the exclusion of everybody else, but the testator immediately adds that the subject of the gift shall be hers and her children’s forever. Substantially the same intent would have been expressed if he had said, “ I give the legacy to my daughter for the exclusive benefit of herself and her children.” When a legacy is given “ to A. and his heirs,” the word “heirs” is usually understood to have been used to indicate the interest or quantity of estate intended to be given to A.; in other words, that he shall take the whole interest absolutely. Ex’rs of Wintermute v. Ex’rs of Snyder, 2 Gr. Ch. 494; Crawford v. Trotter, 4 Madd. 192. But when the gift is “ to A. and his children,” the word “ children” is generally understood to be descriptive of persons who are to take as legatees, and, under a bequest in this form, the children take with the parent. Ex’rs of Mason v. M. E. Church at Tuckerton, 12 C. E. Gr. 47.
There can be no doubt that the testator intended the children of his daughter Elizabeth should, by force of his will, take some interest in the share he gave their mother, but precisely what, it is very difficult to define. It is very
What estate or interest did the several legatees take under this bequest? Hid they all take a right to the present enjoyment of the legacy, either as joint tenants or tenants in common, or did the mother take only a life estate, with remainder to her children ? Where a legacy is given to two or more persons, by name or as a class, without more, they take as joint tenants (Westcott v. Cady, 5 Johns. Ch. 348; Hawk, on Wills 111; 2 Jarm. on Wills 158; 2 Kent Com. 350), but, in a grant or devise of land, express words are necessary to create a joint tenancy. (Rev. p. 167.) And in a bequest of personalty, slight evidence of an intention to confer distinct interests will operate as a severance, and then the legatees will take as tenants in common. As, for example, if the language of the bequest is, that A. and his children shall take equally, or by shares, or -if the testator employs any other words indicating distinction or plurality of interests, in all such cases the legatees will take as tenants in common. Hawk, on Wills 112 ; 2 Jarm. on Wills 162. In this case, the gift is to the mother and her children, without more; there is nothing to lay hold of to change the construction from that which the law fastens upon it. If the mother and children both acquired a present right of enjoyment, I think it must be held they took as joint tenants and not as tenants in common.
Hid they all take a right to the present enjoyment of the legacy, or did the mother take a life estate, and the children in remainder ? This question is of no practical importance to the complainant, for, inasmuch as it has already been
Bequests expressed in the form of the one under consideration, have usually been construed to give a life estate to the parent, with remainder to the children. The only cases holding that parent and children, under a similar bequest, both take a right of present enjoyment, which have come under my observation, are De Witte v. De Witte, 11 Sim. 40 ; Bustard v. Saunders, 7 Beav. 92 ; Beales v. Crisford, 13 Sim. 592, and Ackerman v. Burrows, 3 Ves. & B. 54. The bequest construed in Bain v. Lescher, 11 Sim. 397, was identical in substance, and almost in form, with that presented for construction in this case. The testator there, in the first instance, made direct and exclusive gifts, in absolute terms, to six persons, three males and three females, and then added: “ And I direct that the legacies given, by the present will, to females, shall be for their own benefit and their children, and shall never be subjected to the control of their respective husbands.” Vice-Chancellor Shad-well held that the parents each took a life estate, with remainder to their children. A like construction, of bequests more or less similar, was adopted in Newman v. Nightingale, 1 Cox 341; Crawford v. Trotter, 4 Madd. 192; Jeffrey v. Honywood, Id. 398; Morse v. Morse, 2 Sim. 485; Vaughan v. Marquis of Headfort, 10 Sim. 639; French v. French, 11 Sim. 257; Crockett v. Crockett, 2 Phil. 553, and Ward v. Peloubet, 2 Stock. 304.
Shall the complainant pay costs, or be allowed costs out of the fund in dispute ? Where the true construction of a will is involved in doubt, so that two or more persons may fairly make adverse claims to the same fund, either may resort to a court of equity for an interpretation, and, though his claim may be pronounced invalid, he may still be entitled to costs and a reasonable counsel fee out of the fund. The litigation, in such a case, is indispensable to the proper administration of the fund, and' it should, therefore, bear the costs of the litigation as part of the expenses incident to its administration. Attorney-General v. Moore’s ex’rs, 4 C. E. Gr. 503. A suit in this case was necessary and proper, indeed, unavoidable; all persons having any interest in the fund, have been made parties, and have been afforded an opportunity of being fully heard. A decision of the complainant’s claim practically settles the rights of all parties and leaves nothing for future dispute. He should, therefore,.! think, be allowed his costs and a reasonable counsel fee out of the fund.