122 Neb. 812 | Neb. | 1932
This action involves the construction of a will. That part of the will pertinent to the determination is: “Second, I give and bequeath unto my children, Esther, Helen, Annie, Myrtle and the baby, whose name I do not know, the sum of Five Dollars each. Third, I give, bequeath and devise unto my boys Ralph H. Zimmermann and Daniel S. Zimmermann all the rest and residue of my prop'erty, of every name, nature and amount, of which I may die seised or possessed, to be theirs absolutely.” The boy, Daniel S. Zimmermann, named in the above residuary clause, died in 1918, while the testator died in ,1930. The county court held that the bequest of one-half of the residue given to-the deceased son Daniel lapsed, and “that said lapsed portion of the estate, being undisposed of by the terms of the will, descends as intestate property.” Upon appeal to the district court, the judgment of the county court was reversed, and it was held that the surviving residuary lega
The will was executed • in June, 1909, following the divorce of the parents of the parties herein, in November, 1908. The decree of divorce gave the care, custody, edu-. cation and support of the children, Esther, Helen, Anna, Myrtle and Maynard exclusively to the mother and the father was enjoined from meddling or interfering with them. By the same decree, the father, the testator here, was given the care, custody, education and support of Ralph and Daniel. Thus, the family was separated into two separate and distinct units by this decree. The father had practically no property at this time and the entire estate represents the accumulation since. The evidence demonstrates that he and the boys, Ralph and Daniel, worked together and each contributed to the estate. There was little, if any, social relations between the two divisions of the family. These are the circumstances surrounding the execution of this will.
It is urged by the appellants that the overwhelming weight of authority supports the view, in the absence of a statute, that, where one of two residuary legatees predeceases the testator, the legacy of such a legatee lapses and becomes intestate estate passing to the heirs or distributees, providing it was bequeathed to the residuary legatees in common, and not as a class, unless the intention of the testator to that effect clearly appears. This is substantially the statement in the annotation in 28 A. L. R. 1237. We refer to the comprehensive citation of cases there, which are too numerous to be cited here. The only exceptions to this rule seem to be the pronouncements of the courts of Kansas and Indiana. Corbett v. Skaggs, 111 Kan. 380, Gray v. Bailey (1873) 42 Ind. 349, and Holbrook v. McCleary (1881) 79 Ind. 167. However, the last two cases cited do not discuss the rule.
The rule is a legacy to American jurisprudence bequeathed to us as a part of the common law of England. The English courts, as far as our investigation informs
It is the unanimous opinion of this court that the intent of the testator can be determined from the will considered in its setting of surrounding circumstances. When this will was executed, the family of this testator had been divided into two separate and distinct integral units by judicial decree. Each unit was to pursue its course in' life without dependence on or interference from the other! One division was the father and the two boys mentioned
Because of the early demise of one, prior to the death of the testator, he took nothing under the will. To hold that one-half of the residue should be divided as intestate property would defeat the expressed intention of the tes
We are of the opinion that, from the will and the conceded facts, our conclusion is justified. It is therefore unnecessary to consider the admissibility of certain evidence, concerning which appellants complain, for that without that evidence the same result should be reached. The judgment of the district court is accordingly
Affirmed.