Mowatt v. Carow

The Chancellor.

There can be very little doubt in this case, what was the general intention of the testator, as apparent from the will itself. The testator drew his own will, as appears by an endorsement thereon in his hand writing ; from w hich endorsement it also appears that the will was written by him the year before its execution. And if no events had occurred but those which probably were in the contemplation of the testator at that time, I presume this controversy would never have arisen. One of his sons was already dead, having left two children then in their infancy ; and as the testator contemplated the possibility that one or both of them might die without issue, after the date of his will and before the time appointed for the division of his estate at the death of his widow, he made an appropriate provision to guard against a lapse of those shares by the death of the legatees in his lifetime; and also to secure the share to the other members of his own family, if either of the legatees should have died and should have left no issue living at the death of their grandmother. The vice chancellor, therefore, is unquestionably right in supposing that the share of Elias, the grandson, did not become lapsed, except as to his own presumptive right to the same, by his death during the life of the testator. For however much it may have been once doubted, it is now clearly settled that where an interest in property is given by will to one person, with a limitation over of the same interest either to his children or to any *337 other persons upon the death of the first devisee or legatee before the time appointed for such interest to vest in possession, the death of the first devisee or legatee, although in the lifetime of the testator, does not produce a lapse of the limitation over of that interest to the substituted objects of the testator’s bounty.

One of the earliest cases on this subject is that of Ledsome v. Hickman, (2 Vern. 611,) where the testator devised £300 to each of his three daughters at twenty-one or marriage ; and if any of them died before that time her share to go to the survivor. One of the daughters having died in the lifetime of the testator, the question arose whether the legacy was lapsed or should go to her two surviving sisters. Lord Chancellor Cowper decided that the limitation over was good as an executory devise. Although the reporter adds a sed quaere tamen to the report of that case, it was followed by the same chancellor, eight years afterwards, in the case of Bird v. Lockey, (2 Vern. 744,) and by Lord King in the subsequent case of Willing v. Baine, (2 P. Wms. 113) It was probably urged in those cases, as in this, that there could be no legacy unless the legatee survived the testator; and that the legacy intended by the testator being lapsed, there was nothing to go over to the substituted legatees. The short answer to that, however, is that the bequest to the substituted legatees in such a case is an original legacy to them at the death of the testator; the event having then happened upon which their substitution in the place of the first named legatee depended. And this is so whether such legacy to the substituted legatee is then vested, or is contingent and depending upon some future event. The principle that the legacy to the substituted legatees does not lapse by the death in the lifetime of the testator of the legatee in whose place they are substituted by the will, is also fully recognized in several recent decisions in the court of chancery in England. (Humphreys v. Howes, 1 Russ. & Myl. 639. Gittings v. McDermott, 2 Myl. & Keen, 69. Le June v. Le June, 1 Lond. Jurist, p. 235. Archer v. Jegon, 1 C. P. Cooper's Rep. 172.)

In the case of Williams v. Jones, (1 Russ. Rep. 517,) *338 relied on by the appellant’s counsel upon the argument, the event upon which the- substitution was to take place never happened. The legacy was given absolutely'to T. W. if he should be living at the time of the decease of the testator’s wife; and if he was not, then1 it was to go to the son of T. W. But as the legatee actually survived the wife, although he died before the testator, the substituted legatee could not take according to the provisions' of the Will. Neither could he take as the legal representative of his father, as to whorri the legacy wás lapsed by death in the lifetime of ¡he testator. The same difficulty occurred in sustaining the substituted legacy in Humberstone v. Stanton, (1 Ves. Beame, 485,) which depended on the event of the first legatee dying before he completed his apprenticeship; and he lived till after his apprenticeship was completed, but died before the testator. In the present case the event upon which the share of Elias Mo watt was to go over to the owners of the other three shares as the substituted legatees, actually happened, by his death without issue during the life of his grandmother. And if the legatees or substituted legatees of the other tlíreé-fourths of the estate are entitled to those other shares as such legatees, they are entitled to the share originally intended for Elias, in the same proportions, as the substituted legatees of that share ; although he died in the lifetime of the testator.

For the same reason there can be no’ doubt as to the right of Charles and James to take two-thirds at least of the share Which their father would have taken in the estate if he had survived both the testator and the widow. For the contingency has happened upon which the children of John Mowatt, jun. were to be substituted in his place as legatees; to wit, his death during the life of his mother. It remains therefore for me to inquire and decide whether the other third of that share is devised to the complainant, in the events which have occurred, as one’ of the substituted' legatees; or whether Charles and James are entitled to it as survivors of their brother ; or whether it lapsed by the death of John E. Mowatt, as the substituted legatee of this third of that share, after the death of his father and in the lifetime of the testator.

*339 I can see no way in which the complainant can entitle himself to this third, as a substituted legatee ui der the will, unless he can bring himself within the description of one of the surviving children of John Mowatt, jun. in the sense in which the testator intended to use the word children in this part of his will. As a general rule the testator must be presumed to have used words in their ordinary or primary sense, unless it appears from the context of the will that he probably used them in some other sense ; or unless, by reference to extrinsic circumstances, the use of the words in their primary sense would render the provision of the will insensible or inoperative. (Wigram on Wills, 29.) The word children in common parlance does not include grandchildren, or any others than the immediate descendants in the first degree of the person named as the ancestor. But it may include them where it appears there were no persons in existence who would answer to the description of children in the primary sense of the word at the time of making the will; or where there could not be any such at the time or in the event contemplated by the testator; or where the testator has clearly shown, by the use of other words, that he used the word children as synonymous with descendants, or issue, or to designate or include illegitimate offspring, grandchildren or stepchildren. (Radcliff v. Buckley, 10 Ves. 195. Earl of Orford v. Churchill, 3 Ves. & Beame, 69.) Testing the devise or bequest in this will, to John Mowatt, jun., or to his children if he died in the lifetime of the testator’s wife, by these rules, I can see nothing to authorize me to presume that he meant to include offspring of his son John in any more remote degree, or to use the word children as synonymous with issue. The event which has occurred was probably not provided for by the testator because it was not contemplated by him as one that might happen during his life ; although it now appears the event was not impossible. The testator was then 76 years of age, and his wife was probably very far advanced in life; and the three sons of his son John were then very young and unmarried. It was therefore very improbable that his own term of life would be prolonged until his grandchildren should be mar *340 ried and have issue, and that both the son and grandson would also die before him. For this reason he only made provision for the substitution of the children of John, as ¿he legatees in the place of their father in the event of his dying before the time appointed for the distribution of the estate, with the right of survivorship among themselves if either of those children should die before the testator. The survivorship, where any of a class of legatees are then in esse, is construed with reference to the death of the testator, when the legacy becomes vested in interest in the children then living, but subject to open and let in after born children; so as to give the representatives of the children dying after that time the right to an undivided share of the legacy. (Drayton v. Drayton, 1 Desaus. Rep. 324 . Woodstock v. Shillits, 6 Sim. Rep. 415.) But as the event which has actually happened in this case was not foreseen by the testator, and therefore was not provided for by his will, this court cannot give the appellant a share of the legacy, under the description of a child of John Mowatt, jun. without making a will for the testator which he did not make for himself. (Dod v. Brabant, 4 Dunf. & East, 709.)

Wher’e a legacy or devise or residuary bequest is given to two or more persons by name, as tenants in common, or in severalty, or to be divided among them share and share alike, and without any words indicating an intention of the testator to give the same over to the survivors, the shares of such persons respectively will become lapsed by the death of the legatee or devisee in the lifetime of the testator. (Page v. Page, 2 Stra. 820. Bagwell v. Dry, 1 P. Wms. 700. Ackroyd v. Smithson, 1 Bro. Ch. Rep. 503.) The share of John Mowatt, jun. would therefore have become lapsed if he and all his children had died in the lifetime of the testator; as there was no provision in the will which could have carried it to his more remote descendants, or to his sister Mrs. Carow, or to his brother’s children, as substituted legatees. The revised statutes now contain a provision for saving the legacy or bequest to the descendants of the legatee who dies in the lifetime of the testator, if such legatee is himself a child or descendant of such testator. *341 (2 R. S. 66, § 52.) But even that provision, if it had been in force at the testator’s death, would not reach the present case, as he had himself substituted other persons who were to take the whole legacy by survivorship in case his son died in the lifetime of the testator’s wife.

If the three children of J. Mowatt, jun. had been substituted by name to take the share of their father in equal proportions in severalty in case of his death, and without any words of survivorship, the share of John E. as one of the substituted legatees would have become lapsed by his death during the lifetime of the testator upon the principle which I have before stated. And in a case of that kind I presume the provision of the revised statutes above referred to would give that share of the fund to the descendants of the substituted legatee who died in the lifetime of the testator, his ancestor. But previous to the revised statutes it would have gone to the heirs or next of kin of the testator himself, as a part of his estate not effectually disposed of by the will. In the case of Viner v. Francis, (2 Cox’s Ca. 190,) Lord Alvanley as master of the rolls decided that where a legacy was given to a class of persons in general terms, as in this case to the children of John Mowatt, jun., the share of one of the class who was in existence at the date of the will and who died in the lifetime of the testator did not lapse; but that the whole fund, although bequeathed in terms indicating a tenancy in common rather than a joint tenancy among the individuals of the class, went to the residue of the class who survived the testator, or who afterwards came into existence previous to the time appointed by the testator for the distribution of the fund. Such a construction of a will, where there was no clause of survivorship and no substitution of the issue of such of the class as happened to die before the testator, would defeat this beneficial provision of the revised statutes in many cases ; as such wills are very common. I am therefore happy to find that I cannot sustain the claim of the two children of John Mowatt, jun. who were living at the testator’s death, to the whole of their father’s share, upon the principle that theyus accresscendi is necessarily implied where the legacy is given to a class, *342 although in words not importing a joint tenancy. The contrary was decided by Lord Thurlow in the case of Martin v. Wilson, (3 Bro. C. C. 324) a year or two after the case of Viner v. Francis, which of course overruled the decision of the master of the rolls; although some subsequent writers and annotators in England still think the decision of Lord Alvanley is more in accordance with the doctrine of the courts in analagous cases. (See 1 Roper on Leg. 333. 2 Bro. C. C. 404, note.) I will not say Lord Alvanley’s construction might not be proper, for the purpose of effectuating the probable intention of the testator, where one of the class dies in the testator’s lifetime without issue. That intention, however, is usually indicated by words of survivor-ship which have reference to the death of the testator, and which have the effect to prevent the lapse of the share of one of the class who dies before the testator. (Lord Bindon v. The Earl of Suffolk, 1 P. Wms. 96.) It would hardly be reasonable, therefore, to adopt it where its effect would be to give the whole fund to the survivors of the class, to the entire exclusion of the descendants of the one who died after the making of the will. That being an event evidently not contemplated by the testator in his will in such a case, unless there is. something to indicate that intent, it is better that the lapsed share should go to the heir at law or next of kin of the testator; or that it should be left to go, as it now will under the provisions of the revised statutes, to the descendants of the individual for whom it was originally intended, if he is a descendant of the testator.

In the present case, however, the testator has made use of language which, according to the settled rules of construction, was sufficient to carry the whole share of John Mowatt, jun. to such of the children or substituted legatees as survived the testator. In Smith v. Pybus, (9 Ves. 567,) the testatrix bequeathed a legacy to her mother for life, and after the termination of that life interest therein she directed it to be divided equally between three persones designates, or the survivor of them, in the order in which they were mentioned in the will. The sister who was first named in the will died in the lifetime of the testatrix, leaving the *343 other two sisters surviving. In that case it was adjudged that the words, “ in the order they are now mentioned,” as used by the testatrix, were not susceptible of any definite meaning; and that the word survivor carried the whole legacy over to the sisters who survived the testatrix, in equal proportions, to the exclusion of the personal representative of the sister who was dead. Here it is evident the testator did not intend to die intestate as to any part of his estate ; as he directs it to be sold and converted into money for the purpose of distribution according to his will. And when he directs the share of John Mowatt, jun., in the event which has happened, to be divided equally among his children, the survivors or survivor of them, it must be presumed that he contemplated the possibility of the death of some of the children, and did not intend there should be a lapse in that event. No effect therefore can be given to these words in the will, according to the settled rules of construction, except by holding that the two children who survived the testator took the whole share originally intended for their father, including the one third of the original share of their cousin Elias. (a)

The decree of the vice chancellor was therefore right ; and must be affirmed, with costs to be paid by the next friend of the appellant. As there was probable cause for litigating the question in the court below, it was a proper case to excuse the complainant from the payment of costs, and to charge the costs of the defence upon the fund in the hands of the executors belonging to all of the defendants. But after the several questions arising upon the construction of a will have been fairly decided against the appellant by a competent tribunal, he ought not, except under very special circumstances, to be excused from the payment of costs upon his failure in the appellate court; and to be allowed to throw the costs of the adverse parties upon a fund belonging exclusively to themselves. Such an exercise of the discretion of the appellate court, in ordinary cases, would have a tendency to promote appeals and to protract litigation unnessarily.

See Chaffers v. Abel, 3 Lond. Jurist, 577.