136 A. 434 | R.I. | 1927
This is a bill in equity brought in the Superior Court by the executor for the construction of the will of Margaret J. Williams. The case being ready for hearing for final decree was, as required by Sec. 35, Chap. 339, G.L. 1923, certified to this court for determination.
The testatrix, after disposing of certain real and personal property and one half of the residue of her estate, provided by the fifth clause of her will as follows: "I give and bequeath the remaining one-half part in equal shares, share and share alike, to Alfred Williams and Charles Williams, descendants of my brother-in-law, Henry Grant Williams; to Hannah McCormick, Doxie Lee, Andrew Williams, Nellie Williams and Nannie Williams, descendants of my brother-in-law, Edwin Palmer Williams; to Julia Williams Chase, Lila Duckworth Wilde, Grace Alma Coffin, Milton Brown and Ethel Louise Price descendants of my sister-in-law Julia Williams Brown, to them, their heirs and assigns forever." All of the beneficiaries named in said clause *202 except Doxie Lee and Hannah McCormick are respondents. After the death of the testatrix Doxie Lee deceased and her administratrix has been made a party respondent. The will was executed March 7, 1923, and Hannah McCormick deceased February 19, 1922, more than one year before the execution of the will, leaving six children all of whom are living. They have been made parties respondent.
The bill raises the following questions: 1. Did the gift in said fifth clause to said Hannah McCormick lapse, or does it take effect and operate as a gift to such of her issue as were living at the time of the death of the testator? 2. Is the property disposed of in said fifth clause to be divided into three equal shares, one share to go to said descendants of said Henry Grant Williams, one share to said descendants of said Edwin Palmer Williams, and one share to said descendants of said Julia Williams Brown; or is said property to be divided into twelve (or eleven, according to the answer given to the foregoing question) equal shares, one share to go to each of the beneficiaries named in said fifth clause or to her issue?
At common law a gift to a person who was dead at the time the will was executed was void, and the first question presented is whether See. 31, Chap. 298, G.L. 1923 is sufficiently comprehensive to save for the issue of Hannah McCormick the legacy which by the terms of the will was given to her. Said section provides as follows: "When any person to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect and operate as a devise or bequest from such testator to such issue, in such proportions as the estate of such devisee or legatee would go to them had he died intestate immediately after the death of the testator, unless a contrary intention shall appear by the will." *203
The decisions upon the question are not in harmony; but the great weight of authority, as well as reason, supports a holding unless the testator has manifested a different intention that a devise or bequest to a named, or otherwise specifically designated devisee or legatee who was dead at the time of the execution of the will, does not fail, if such beneficiary left issue living at the death of the testator, but is saved by the statute for the benefit of such issue. 3 A.L.R. at 1684 cites in support of this proposition numerous authorities in the following jurisdictions: Conn., Me., Mo., N.Y., Pa., Tenn., Va., Wash. and England. Some of the decisions supporting the minority view are based on the fact that, in the opinion of that court, the peculiar wording of the statute in that jurisdiction excludes the issue of a beneficiary who was dead at the time of the execution of the will. See Billingsley v. Tongue,
Although Hannah McCormick died before the execution of the will she died "in the lifetime of the testator"; and nothing in the statute except the technical word "lapse" in any way indicates an intention to confine the benevolent scheme of the statute to the issue of persons who deceased between the time of the execution of the will and the death of the testator. This remedial statute should be given a liberal construction in order to effectuate the purpose for which the statute was enacted. The statute was adopted *204
for the purpose of carrying out the presumed wish of the testator and there is no more reason for presuming that a testator would desire to benefit the issue of a person, who, after being named as a beneficiary in the will, dies before the testator, than there is for presuming that it would be the wish of the testator to benefit the issue of a person who happened to have deceased before the time when he was specifically named as a beneficiary in the will. There is at least one other instance where the word "lapse" as used in the statute can not be given its technical significance, for example, where a gift is made to a class and one of the members thereof dies before the testator, the share of such deceased member does not, strictly speaking, lapse but merges in the gift which goes to the remaining members of the class. To accomplish the purpose for which the statute was designed its should be construed to mean the same as it would if the word "fail" was inserted in the place of the word "lapse". See authorities in 3 A.L.R. cited supra. As stated in Nutter
v. Vickery,
It should be borne in mind that the bequest to Hannah McCormick is a gift to a person designated by name and not a gift to members of a class, as "to the children" of a person without further designation. Courts have sometimes confused these two classes of gifts, but most courts, in considering the statute, make a distinction between such a gift as we have under consideration and a gift to a class where the members are not designated. In construing gifts to such a class the usual rule for testamentary construction, when no statute is involved, is that membership in the class is determined as of the testator's death, because *205
the testator is presumed to have intended, when nothing appears to indicate a different intention, that only such undesignated members of the class shall take as survive the testator.Howland v. Slade,
The gift in the fifth clause was "in equal shares, share and share alike" to twelve persons designated by name. The reference to the two brothers-in-law and a sister-in-law was merely for the purpose of identifying the legatees and not for the purpose of dividing them into three classes with an intention that each class should take one-third.
Our decision is (1) that the gift to Hannah McCormick did not lapse but operates as a gift to such of her issue as were living at the time of the death of the testatrix. (2) That the property disposed of by the fifth clause of the will must be divided into twelve equal shares and that each of the *208 beneficiaries named in said clause, except Hannah McCormick, takes one of said shares, and that the children of Hannah McCormick take in equal parts the share which their mother would have taken had she survived the testatrix.
The parties may present a form of decree in accordance with this opinion.