Jamison v. Hay

1. Wills — Legacies—Devisees mentioned by classes — Children of devisees dead at date of will, entitled, how. — A testator devised a certain remainder of Ms estate “to the sons and daughters of A.” At the date of the will some were dead and some living. Held, that although the testator was partially aware of this fact, yet, inasmuch as their deaths were in no manner alluded to in the will, and they were therein regarded as alive, and as all the circumstances attending the making of that instrument showed its object to be that the children of those deceased should share Ms bounty, therefore, under the • statute CWagn. Stat. 1366, g 11), the children of A. who were living at the date of the will were not entitled to the whole of said residue as survivors, but the descendants of A.’s other children were entitled to the share which their ancestors, if living-, would have taken. The statute contemplates that where an estate is devised to children and relatives, if part of them are dead and part living, the children of those dead shall take the place of their deceased parents. At coinmon law the rule is different. Thus, if the property he given simply to the children of A., to be equally divided between them, the entire subject of the gift will vest in any child surviving the testator, without regard to previous deaths; and the rule is the same when the gift is to the children of a person actually dead at the date of the will.

Appeal from St. Louis . Circuit Court. I. The decisions at common law, relied on, are founded on a principle of lapsed and void legacies, which has( been radically changed by our statute. (Gen. Stat. 1865, p. 528, § 11.) The will itself recognizes the relationship referred to in the statute, for the devise is to the sons and daughters of “ my uncle,” Col. Sheppard. Gen. Stat. 1865, p. 532, § 49, re-enacts the common law, and provides “that the courts, in the construction of last wills, shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.” The design of the executor was one of benevolence and of charity. Can any one believe that the testator intended that Mrs. Hay, because by chance sole survivor of her brothers and sisters, should receive from the testator the same share as he had given to his own sister, and this when the nephews and nieces of Mrs. Hay got nothing ? H. If Mrs. Hay was to take the whole bequest if she alone survived the testator, words of survivorship should have been inserted to exclude the operation of the clause of the statute referred to. This clause refers to the will of a father, grandfather, or other relative, and places all three of these classes on the same footing. The rule of construction is to be precisely the same as if it were the case of the will of a father to his children. Would any court construe a similar bequest to “my sons and daughters,” to mean to the son or daughter who should by chance .survive him, to the exclusion of his grandchildren ? Such a construction would defeat the whole law. (Dwarr. Stat. 632.) In 'Gordon v. Guitar, 17 Mo. 412, the bequest was to a child dead at the time of the execution of the will — a bequest at common law void — and yet it was held that her children took the portion thus devised. (Smith’s Case, 2 Dess., S. 0., 123 ; Hamilton’s Ex’r v. Lewis, 13 Mo. 188.) I. There is nothing on the face of the will from which to infer that the testator intended to use the words “ sons and daughters” in any other than their proper legal sense. These words do not in themselves embrace the grandchildren of William Sheppard or their descendants. (Radcliffe v. Buckley, 10 Yes. 105.; Tier v. Pennell, 1 Edw. Ch. 354; 2 Redf. Wills, 336-9, 354; Horwitz v. Norris, 13 Wright, 218 ; Sheets v. Grubbs, 4 Mete., Ky., 339; Churchill v. Churchill, 2 Mete., Ky., 466 ; Walker v. Williamson, 25 Ga. 549; Stoddard v. Nelson, 6 DeG. M. & G. 68; Crooks v. Whitby, 7 DeG. M. & G. 490; Izard v. Izard, 2 Dess. 308; Relff v. Rutherford, 1 Bailey, 7; Elliott v. Elliott, 12 Sim.-235 ; Ballard v. Ballard, 18 Pick. 41.) The word “son” is never taken for “grandson,” any more than “child” is taken for “grandchild” (Stead v. Burrier, Raym. 411, cited in Jackson v. Staats, 11 Johns. 350); “daughter,” therefore, does not mean “granddaughter.” *H. The case is not within our statute (Gen. Stat. 1865, p. 1569, § 12). This enactment was not intended to determine who should be the primary objects of a testator’s bounty, to create estates whore none had been devised, or to impart validity to devises originally void. The single design of the Legislature was to prevent a lapse. The statute contemplates that the will shall name, designate, or ascertain the particular person wrho is intended to take as devisee, and provides that if “said devisee” (so determinately ascertained by the .will) shall die before the testator, then his lineal descendants shall be substituted in place of such deceased devisee, and shall take the same estate that such devisee would have taken if he had survived the testator. But here the devise was to the sons and daughters of Col. Sheppard as a class, and not nominatim as individuals. Under such a devise, only those of the class who answered the description at the death of the testator were devisees. Such of the sons and daughters of Col. Sheppard as were dead when the will was made were never devisees or legatees. The gift was then, in effect, to Mrs. Hay of the entirety, for she only answered the description. Such is the rule peculiar to classes, and it is founded upon a presumed intent of the testator. When giving to a class, he looks to the contingency of fluctuations, to the possible increase or diminution in the number of those who ho designs shall take ; and by describing the objects of his bounty as a class, rather than nominatim as individuals, he manifests an intent that none shall be benefited by the gift but those who may belong to the class when the gift shall take effect. (1 Jarm. Wills, 295-6 ; Doe v.- Sheffield, 13 East, 526 ; Viner v. Francis, 3 Bro. 0. C. 658 ; Downing v. Marshall, 23 N. Y. Appeals, 366, 373, 374; Barber v. Barber, 3 Myl. & Or. 697; Shuttleworth v. Graves, 4 Myl. & Cr. 38.) For further illustration of the difference between a naming or ascertaining of particular persons as devisees (persones designate) and the designating of a class merely, see the following authorities : Connor v. Johnson, 2 Hill’s Ch. 41; Lee v. Paine, 4 Hare, 251; Stires v. Van Rensselaer, 2 Bradf. 172 ; Cureton v. Massey, 13 Rich. Eq. 104 ; Mebane v. Womack, 2- Jones’ Eq. 293 ; Satterfield v. Mayes, 11 Humph. 58-9 ; Beasely v. Jenkins, 2 Head, 199 ; 1 Redf. Wills, 386 ;■ 2 Redf. Wills, 505 ; Alexander v. Walch, 3 Head, 493 ; 1 Jarm. Wills, 313. It necessarily follows that our statute is inapplicable. The purpose of all such statutes is undoubtedly to prevent a lapse, and where no lapse would occur if the statute had no existence there is no room for its interposition. Similar statutes have been enacted in most of the States as well as in England, but none of them have ever been otherwise applied, or been supposed to work a substitution of devisees or legatees in any case where, without it, there would be no lapse. Of course they are inapplicable to devises to a class, when at the death of the testator there is any member of the class living to take, because there is no lapse to provide against, because none o£ the class who died before the time fixed for vesting are devisees; and because, therefore, if the children of deceased members of the class can take, they must take in opposition to the will. This is well stated in 1 Jarman on Wills, 318. In Billingsley v. Tongue, 9 Md. 575, where the devisee, who was specially named, was dead before the date of the will, under the statute (act of 1810, ck. 34, § 4) — “no devise shall la.pse, or fail of taking effect, by reason of the death of the devisee in the lifetime of the testator” — it was held to be a void, and not a lapsed, legacy; that “ if lie died after the will was made and before the testator” it was a cáse of lapse, but “ if he died before the date of the will” the legacy was void from the beginning. The case of Sheets v. Grubbs, 4 Mete. .339, completely covers our case and sustains the views we have taken. It was a devise “ to the children of my sister M. B.” Mrs. M., one of the children, -was dead before the date of the will, leaving one child, the plaintiff. The aid of the statutes was invoked. Held, notwithstanding its peculiar provisions, that Mrs. M. was not embraced in the devise, and was therefore not a devisee under the will. It ivas said that the devise ivas to those children who were living at the date of the will, and not to those who were dead •, that any presumption that the testator intended to give an estate to persons he knew were not in existence, was “altogether inadmissible,” and that “if the devise had been to the children by name, or to the ten children,of M. B., the issue of such as may have been dead at the making of the will would have taken under the statute.” See also Dazey v. Killam, 1 Duv. 404, and Dunlap v. Shreve, 2 Duv. 334, 342; Grose’s Estate, 10 Barr, 360 ; Jackson v. Roberts, 14 Gray, 550 ; Young v. Robertson, 11 Gill & Johns. 828 ; Craycraft v. Craycraft, 6 Har. & J. 54. The case of Guitar v. Gordon, 17 Mo. 408, relied on by the other side, has nothing in common with this ; there is an utter want of analogy between the two cases. That was a proceeding by the grandchildren of David Gordon “ to have an intestacy declared upon the ground that they were not provided for or named in his will and it would seem that the only explanation of which the case is susceptible is that tbe court were very clearly of the opinion that these grandchildren were provided for by the testator’s will; that it was undeniably his intention that these children of Emily Guitar (his grandchildren) should take their mother’s share ; in other words, that by fair construction and intendment, the children themselves were the original devisees; and if so, they took directly under the will itself, and not by way of substitution under the statute. IH. It is well settled that parol or extrinsic evidence is inadr missible to control' the plain, unambiguous words of the will, or to prove intention aliunde. (Wigr. Wills, 89, 90 ; Gregory v. Cogwill; 19 Mo. 415; Bradley v. Bradley, 24 Mo. 315; Williams v. Carpenter, 42 Mo. 342.) But, as declared by the court below, even if this evidence were legal and competent, it would not affect the proper construction of the will; the result would be the same. .This evidence only showed that the testator had neither knowledge, remembrance, nor belief as to the existence or death of any particular individuals of these children. He could not, therefore, have named them if he had wished to do so. He ■could only designate them as a class generally by this mode of gift, which indicated in itself this very uncertainty in his mind in regard to the individuals who might compose the class. His declaration that he “ wished to give á portion of his property to his uncle Sheppard’s representatives or children ” fails to show an intention different from that expressed by the terms employed in the will. In Cook v. Whitby, 7 DeG. M. & G.’ 490, already cited, argument drawn from any “presumption that the testator knew the state of the family” was deemed “ quite untenable.” In Sheets v. Grubbs, 4 Mete., Ky., 339, it was said that any presumption that the testator intended to give an estate to persons he knew vTere not in existence, was “ altogether inadmissible.” And in Doe v. Sheffield, 13 East, 256, Bayley, J., remarked: “ I do not see how the want of knowledge of the testator of the death of the two at the time of making his will, which the argument for the plaintiff supposes to have been the fact, should prejudice the sister w’ho alone survived at that time.”