54 W. Va. 681 | W. Va. | 1903
William Schaeffer made a will by which he gave to his wife for life, all his real aiid personal property, with power to sell some and use its proceeds, and then provided that “at the death of my wife what real and personal property may be left shall be sold and divided equally among my children, or their children, or their representatives.” The testator died leaving his widow. Two of his sons, John W. and Emanuel, gave deeds of trust to secure debts on their interest in their father’s estate, and then died during the life time of said widow. One of the said sons left a daughter, Deborah Merchant, and the other left children one named Cora Merrit. The administrator with the will annexed of the testator having sold the land hied a bill to construe the will and give him directions how to dispose of the fund, there being conflicting claimants, the creditors of the dead sons claiming under said deeds of trust payment of their debts out of the fund, on the theory that the sons who made said trust deed? had vested estate in the land, while their children denied that their fathers had any estate for the deeds of trust to operate upon. A decree was pronounced holding that the sons took a vested estate at their father’s death, and that the deeds of trust were effective, and directing their satisfaction out of the fund.
Had the two sons a vested property in the estate of their father, so that the deeds of trust given by them woulij he good against their children ? Did the will vest those sons with an estate at their father’s death, or had they only a contingent remainder after their mother’s life estate, to become vested only in case they should survive her? Counsel for the trust creditors say that the words “or their children” are words of survivor-ship and that they show that the testator had in contemplation that some of his children might die, and that the question is
They say that he contemplated it as occurring before his own death, and that he used those words to prevent a lapse of the legacies by their death in his life time. Viewing it as a question of survivorship they make the burden of their argument and seek to control the ease by the principle found in Kirby v. Martin, 11 Grat. 67, that “in a devise or bequest to survivors at the death of a devisee or legatee for life, in the absence of the expression of a particular intent on the part of the testator, the survivorship has relation to the death of the testator.” Counsel say that estate absolute vested in the sons at the testator’s death. It is not demanded in this ease that we say whether or not that principle is sound; for if we treat the case as one of survivorship, even under that rule we can say that the survivor-ship does not relate to the death of the testator, but to that of the life tenant,' because that rule says its application depends upon whether the will manifests another intent, as the will in hand does.
However, speaking for myself, I am at present ready to say that the rule is not sound. Once it was, but not now. Numerous English decisions once upheld it. Jarman on Wills, p. * 1538, (G ed. 667), after giving numerous cases stating that rule says: “The sequel will serve to show that no rule of construction, however sanctioned by repeated, adoption, is secure of permanence, unless founded in principle”, and states that the rule is not based on reason, and that “the reader, on a perusal of later cases, will find himself probably impelled to the conclusion where there is a gift of personal estate to a- person for life or any unlimited interest, and after the determination of such interest to certain persons nominatim, or to a class of persons as tenants in common, and the survivors of them, those words are construed as intended to carry the subject of gift to the objects who are living at the period of distributionOn star page 1547 Jarman says, after a review of many cases: “In this state of the authorities one need scarcely hesitate to affirm that the rule that reads a gift to survivors simply as applying to objects living at the death of the testator, is, confined to those cases in which there is no other period to which survivorship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who sur
But be the case of a plain case of survivorship as it may, I think this is a case of substitution, not survivorship. We have not the case of a survivor of several persons alike in interest, but a case where some persons are substituted in default or place of others.
Take the will. What was the testator’s intent? That at the death of the widow life tenant the property should go to the testator’s children, if then living, and if not, then to their children. If he intended to give unconditionally and at once to his children a vested estate, why not simply give to them? He did not do so. He used more words than those necessary to do this. He says “my children or their children”. He meant something by these additional words. What did he mean by these added words “or their children” ? Ho did not mean "and” their children. Wo cannot change “or” into "and”; for this is only done to execute plain intent; but in this case that is obviously not the case. We must give “or” its natural, usual gramatical effect, a disjunctive effect. The testator did not mean to give his executor arbitrary power to choose either his own children, or their children. ITe plainly meant to give to his own children, if living at date of distribution after death of his widow, and if not, then to their children. Do we risk any thing in saying
I will add that even under the rule put in Kirby v. Martin, 11 Grat. 67, the dead sons took only a contingent remainder, they dying before the life tenant, because that case applies to survivorship to the date of testator’s death, “in the absence of the expression of a particular intent on the part of the testator”, and in this case the words “or their children” show an intent to vest estate in the sons, if living at the death of the life tenant. I think I have cited enough law to show that the force of “or their children” is equivalent to “in' case of their death”; that they provide those. who take in place of the first legatee; that they make a condition on which the vesting of any estate depends; that they have the effect to give only a contingent remainder to Schaeffer's children, preventing any estate in them at the testator’s death.
I consider it a case of contingent remainder, but others might say that it is a case of an estate vesting in right, but not in possession, at the testator’s death, defeasible by the death of any of his children during the life tenancy. It seems immaterial, except in technical law, as the same result is' reached. In Reiff v. Strite, 54 Md. 298, it was considered in this light. Land was directed to be sold and the money given as by the will, and it was held that as to that part given to S. S. immo-
It cannot be said tbiat the wordfc “or their children” were used to prevent lapse from death of a child in the testator’s life, because likely those very words by their own force -would prevent a lapse, and also because section 12, chapter 77, Code, would prevent it. He meant something else. “But although in tire case of an immediate gift, it is generally true that a bequest over in the event of the death of a preceding legatee, refers to death in the life of the testator, yet this construction is only made from the necessity of the thing, and consequently, where there is another point of time to which such dying may be referred (as in the case where the bequest is to take effect in possession at a period subsequent to the testator’s death) the words are considered as applying to the event of the legatee’s dying in the interval between the testator’s death and the period of vesting in possession.” Jarman page * 1568. I repeat that I consider this a case of contingent remainder. In a note by the able author Freeman, 10 Am. St. R. 477, it is stated that while the courts lean towards treating legacies as vested, yet “when there is no other legatory expression or intention than that implied in a direction to pay or distribute at a future time, or on a contingent event, the bequest, nothing else appearing, should be considered as contingent.” Here, what else does appear fortifies this construction. He further says, that when legacies are payable at 21, if or when, in case, or provided the legatee attains 21, “or any other future definite period, ihese expressions annex the time to the substance of the legacy, and make the legatee’s right depend upon his being alivo at the time fixed for payment.” If he dies before, his representative gets nothing. This will says the legacies a.re payable “at” the widow’s death. Our conclusion is to reverse the decree elated 2d December, 1901, entered on 19th November, 1902, as a nunc pro tunc decree, so far as it decrees that by the will
Reversed.