94 Me. 429 | Me. | 1900
Bill to obtain the construction of the last will and testament of Rufus Jones, late of Veazie. The will was executed May 23, 1894, and Mr. Jones died the following August. He left surviving him two sons, Rufus L. Jones and William T. Jones, and one daughter, Mary J. Webber, the complainant, all of whom were married. There has never been any child born to either Rufus L. Jones or Mrs. Webber. But William T. Jones at the
The will of Rufus Jones, in addition to certain pecuniary and specific bequests to his children and others, contained the following paragraphs, which are the only ones that it is necessary for us to consider.
This will is said to be holographic, and we do not question the statement.
The estate has been in the process of settlement, the debts and pecuniary legacies have been paid, the real estate, except the farm mentioned above, has been sold and the proceeds put on interest, and the executrix holds the residuary fund for distribution under the will.
The questions presented by the bill are, in substance, what interest did Fred A. Jones, the child of William T. Jones, who has died since the death of the testator, take either in the “farm” or the residuary fund, and if any, did that interest descend upon his death to his father and mother as heirs; next, does Helen A. Jones, born since the testator’s death, take any interest in the “ farm ” or the fund; and lastly, -when may the residuary fund be distributed. For convenience in discussion we shall consider these questions first with reference to the “farm,” and then with reference to the residuary fund.
The will gives a life estate to William T. Jones, with remainder over to his children, if any; and, if there are no children, then to his nearest relatives. Whether Fred A. Jones had a descendible interest in the remainder, or not, will be ascertained by determining whether the remainder to the “ children ” was vested or contingent. If it was vested, he had at the death of the testator a present fixed interest to take effect in possession upon the termination of the life estate; and that interest was transmissible, devisable, descendible. He could convey it, and upon his death intestate and unmarried, it would descend to his father and mother. But not so, if the remainder was contingent. In that event, his interest would depend upon his surviving his father. If he died before his father’s decease, there would be nothing to descend to his father and mother.
The law favors vested remainders, and it is a rule that remainders shall be deemed to be vested rather than contingent, if they can properly be so construed; but not to defeat the intent of the testator. Richardson v. Wheatland, 7 Met. 169. It is the expressed intent of the testator, interpreted by his language, in the light of legal principles, which controls the construction of a will. And in this case, we think the intent shown by the will was to create a contingent remainder in the children of William T. Jones. The devise was to the children as a class, and was made to them “if any” that is, if any living; and if they were not living, then to others. And we think the language used fairly implies an intention that this contingency should be determined at the time of the death of the life tenant, rather than at the death of the testator. The testator appears to have intended that his son William T. should have the life estate and no more, that when William T. died, “then” the farm should go to the children. Such an expression as “then” or “after the death of” the life tenant, has been held not to be conclusive, and had the testator stopped there, there might be more doubt. But he followed the estate further, and provided that in case there were no children,
But as to Helen A. Jones, the after-born child, the case is different. We think she is let in, and if living at the death of her father, she will then take by way of executory devise a vested interest in fee, in common with her surviving brothers and sisters. The authorities all agree that in case of a devise over, in general terms, to a class, as “children,” to take effect in the future, or upon the happening of a contingency, it is open to let in after-born children; and it is even held by some authorities, if not all, that the rule applies equally well in the case of vested remainders. 1 Jarman on Wills, (5th Ed.) 154; Campbell v. Rawdon, 18 N. Y. 412; Bingley v. Bingley, 5 Mass. 535; Hatfield v. Sohier, 114 Mass. 48; Moore v. Weaver, 16 Gray, 305; Haskins v. Tate, 25 Pa. St. 249.
This legacy is also made to a class, the grandchildren of the testator. It is a fund to be distributed, and the time of distribution is fixed at the period when “said children [grandchildren] are twenty years of age.” The rule is that where a legacy is given to a class of individuals, not by a designatio personarum, but in general terms, as “ to the grandchildren of A.,” and no period is fixed for the distribution of the legacy, it is to be considered as due at the death of the testator; and none but children who were born or begotten previous to that time can share in the legacy. But where there is. by the will, a postponement of the division of the legacy until a period subsequent to the testator’s death, every one who answers the description, so as to come within that class at the time fixed for the division, is entitled to share, though not in esse at the death of the testator, unless there is something in the will to show a contrary intention on the part of the testator. And persons living at the death of the testator, but afterwai’ds deceased before the time of distribution, are not entitled to share. The class takes in all- who answer the description at the time fixed for distribution, and no others. Jenkins v. Freyer, 4 Paige, 47; Worcester v. Worcester, 101 Mass. 128; Hall v. Hall, 123 Mass. 120; Fosdich v. Fosdich, 6 Allen, 41; Opinion of Judge Haskell, in re Estate of John B. Brown, 86 Maine, 572; Woerner’s Law of Administrators, § 434. This rule excludes Fred A. Jones, or his heirs, from participation in the residuum. But it will let in Helen A. Jones, if alive at the time fixed for distribution.
III. As to the time of the distribution of the residuary fund.
The language is when “ said children are twenty years of age.” It is unfortunately indefinite. We must ascertain again, if we can, the intention of the testator. Did he intend the distribution should take place when the oldest grandchild, or when the youngest, should become twenty years of age? We think the latter. This construction will satisfy the literal import of the language, which is in the plural. It also seems to be in keeping with the other purposes expressed in the residuary clause. He therein
The devisees and legatees in their answers unite with the executrix in asking for a construction of the will. The questions raised are those about which doubts might well exist. Therefore we think that costs, including reasonable counsel fees, should be allowed to all parties, to be paid by the executrix and charged in her account of administration.
Decree accordingly.