Van Pretres v. Cole

| Mo. | Oct 15, 1880

Hough, J.

Marie L. Lamarque died in 1868, leaving a will, the third clause of which is as follows : “I give, bequeath and devise to my niece, Mary Bolduc, the sum of $6,000, and also the tract of land and house on. and in which I now reside, together with all of the furniture and household- property, inclusive of linen, plate, jewels, pictures, books and so forth, as the same may be found at my death. But should she not survive me, or should she die leaving no heirs of her body, then, in either such case, this bequest and devise is to lapse, and go to my residuary legatee hereinafter named. And it is so to lapse if she fail to have issue of her body, Avhether she should or should not survive me.” Mary Bolduc died in 1872, leaving no heirs of her body. The executor paid the $6,000 to Mary Bolduc, and the heirs now seek to have him charged with that sum in his final settlement, on the ground that the legacy never vested in her.

1. a will cossteded : meaning of “lapse.”

It is contended, on behalf of the plaintiff in error, that the word “lapse,” in the clause of the will above quoted, was used by the testatrix in its legal and . , . , „ , _ , , technical sense, and that as Mary Bolduc died without issue, the property mentioned never vested in her, and as the devise over to the residuary legatee was pronounced void by this court in the case of Peter Richard Kenrick v. Cole, Exr., 61 Mo. 572" court="Mo." date_filed="1876-01-15" href="https://app.midpage.ai/document/kenrick-v-cole-8005234?utm_source=webapp" opinion_id="8005234">61 Mo. 572, the property goes to the heirs. An ingenious and plausible argument has been made in support' of this view, but a careful consideration of the phraseology of the clause in question, has satisfied us that this view is rather specious than sound. It is impossible to resist the inference that the testatrix, by making* a bequest and devise to her niece, Mary Bolduc, unconnected with any trust or other limitation as to the use thereof, intended to make some provision for her, which might, by possibility, be capable of vesting in her, and'be susceptible of enjoyment by her, at some time. If her sole purpose had been to give the property mentioned to the heirs of the bod}* of her niece, it is to be presumed that the devise and bequest would have been made directly to such heirs, and not to their mother. Taking then the words : “ I giye, bequeath and devise to my niece, Mary Bolduc,,” as indicating an intention on the part of the testatrix that Mary Bolduc should, in some contingency, become in fact a devisee and legatee of the property mentioned, let us see how this purpose would be affected by confining* the word “lapse,” in the succeeding sentence to its usual legal technical signification.

It is quite obvious that so far as the first member of this sentence is concerned, viz : “But should she not survive me,” the word “ lapse ” can be given its technical meaning without defeating the purpose we have just ascribed to the testatrix.

But let us consider this word in connection with the second member of the sentence, and in order thereto, let us bring them in juxta-position, thus : “ But should Mary Bolduc die, leaving no heirs of her body, then this bequst and devise to her is to lapse and go to my residuary legatee.” That is, (giving to the word “lapse” the technical meaning of non-vest, which the plaintiff in error insists it should receive,) the bequest and devise to Mary Bolduc shall not vest in her until she shall die and leave heirs of her body. Or, to state the matter in another form, the proposed construction of the word “ lapse ” would make the testatrix go through the useless formality of making a devise and a bequest to her niece, which in the same clause she declares shall never vest in her. Such a construction would be manifestly absurd.

To avoid this absurd conclusion the counsel for the plaintiff suggest that the meaning of the words “ should she die leaving no heirs of her body,” may be qualified by the last sentence in the clause of the will we are now considering, which is as follows : “And it is so to lapse, if she fail to have issue of her body, whether she should or should not survive me.” This sentence, it is argued, may be regarded as showing that it was the purpose of the testatrix that the estate should vest whenever Mary Bolduc had issue. If this sentence stood alone, such a construction might be supported. But as the phrase, “ should she die leaving no heirs of her body,” can in no possible, view be regarded as either ambiguous or elliptical, and as all parts of the clause should be so construed, if possible, as to harmonize and consist with each other, such a construction cannot be given to the last sentence. That sentence, as is evident from the use of the words “ so to lapse,” refers to the preceding one, and is to be interpreted by it. So interpreted, the words “ if she fail to have issue of her body,” must be held to be synonymous with the corresponding words of the preeéding sentence, and as meaning “ if she fail to have issue of her body, living at her death.”

To give to the word “ lapse ” the meaning contended for by the appellant, would, in our opinion, contravene the obvious intention of the testatrix and annul a clear, complete and unquestionable bequest and devise to Mary Bolduc. We think this word was employed by the testatrix in a sense broad enough to designate either the falling in of the estate in the event her niece should not survive her, or the falling in of said estate upon the happening of the limitation or condition subsequent, viz: the death of her niece without issue living: The technical signification of the word would be sufficient to correctly characterize the first event, but in view of the other parts of the clause a broader and more comprehensive signification must be given to it to make it accurately describe the latter. This larger meaning is equally applicable to both events, and because the more restricted meaning is sufficient for one event, it does not follow, as argued by the appellant, that the word should have the restricted meaning also when applied to the other event.

2. will: estate.

As in our opinion the properly mentioned in the clause under consideration vested in Mary Bolduc on the death of the testatrix, and as the residuary legatee has been adjudged incompetent to take, Mary Bolduc took the whole estate freed from the executory devise over. 2 Redfield on Wills, (3 Ed.) p. 264, § 17, par. 8, 9, 10. The judgment of the circuit court will be affirmed.

The other judges concur.