Desmond v. MacNeill

Prentice, C. J. The conversion of the real estate, which is the subject-matter of the codicil provisions, into invested funds does not in any material manner change the questions presented or the answers to them. Those persons who would be entitled to an interest in the former are entitled to like interest in the latter. The language of the codicil, in so far as the testator by it undertook to dispose of the remainder-over, in the property concerned, upon the death of his wife and sister, is clearly ambiguous. It is so ambiguous that four different interpretations are either claimed or discussed as possible by counsel. Mrs. MacNeill contends that the language in which the gift over is couched should be interpreted as vesting in her a remainder in fee simple, and those of her children who have attained their majority appear to concur with her. This result, however, cannot be reached except by treating the words “for herself and children” as merely indicative of the testator's wishes as to the use and disposition Mrs. MacNeill should make of the property given to her, or else by interpreting the word “children” as synonymous with “heirs,” and converting the phrase into one giving the property to her and her heirs forever. Neither of these construe *145 tions is consonant with the natural meaning of the language the testator employed, and there is nothing in the will to indicate an intent on his part which either construction would effectuate. On the contrary, it is reasonably evident that he intended that Mrs. MacNeill’s children should be beneficiaries under the will. Looking at that instrument, which, like its codicil, appears to have been drafted by the testator himself, we find that he knew how to make absolute gifts of real estate in direct and appropriate language and without any such circumlocution as was employed in that in question, and it is scarcely credible that he used the peculiar phraseology of the. codicil without some other purpose in mind than that of giving Mrs. MaeNeill a remainder in fee simple. As bearing upon the second of the suggested alternative constructions, it is indeed true that the word “children,” which is normally a word of purchase, may, in the interpretation of a will, be read as the equivalent of “heirs” used as a word of limitation; but this will not be done except in cases where it is necessary to give effect to the instrument, or where the context clearly discloses that such was the sense in which the testator employed it. Annable v. Patch, 20 Mass. (3 Pick.) 360, 363; Buffar v. Bradford, 2 Atkyns, 220, 221; Beecher v. Hicks, 75 Tenn. (7 Lea) 207, 213; Schaefer v. Schaefer, 141 Ill. 337, 343, 31 N. E. 136. To the suggestion that the testator intended to give the property to Mrs. MaeNeill in trust for herself and children, there is the double objection that thereby she would become trustee for herself, which the testator could scarcely have intended, and that such construction would not accomplish a disposition of the entire fee, a result apparently foreign to the testator’s intention. *146 Another suggested construction is that the devise was one to Mrs. MacNeill and her children as tenants in common. It will be noted in this connection that the gift is not made to Mrs. MacNeill and her children, but to Mrs. MacNeill for herself and children. The title is thus made primarily to pass to her. Her children stand in a secondary place or relation to the property. Evidently the testator had it in mind that there was to be a difference between mother and children in respect to the title or interest which they were respectively to take. Noe v. Miller, 31 N. J. Eq. 234, 236. There remains a fourth, and in our opinion a more reasonable view, to wit: that the testator intended to give the property to Mrs. MacNeill for her life, and that upon her death it should go to her children, or in other words, that she should take a life estate and her children the remainder-over in fee. This, we think, accords better than any other construction with the words which the testator used and his probable intent as his language discloses it. The courts have commonly given such a construction to similar language, and distinguished between the effect of such language and that making gifts or devises to a person and his or her children. Noe v. Miller, 31 N. J. Eq. 234, 237; Bain v. Lescher, 2 Simons, 397, 401; Schaefer v. Schaefer, 141 Ill. 337, 343, 31 N. E. 136; Chesnut v. Meares, 56 N. Car. (3 Jones’ Eq.) 416, 418; White v. Williamson, 2 Grant’s Cases (Pa.) 249, 253. The children of Mrs. MacNeill took as a class, in which are to be included not only those living at the decease of the testator but also those who might be after-born. The Superior Court is advised that Mrs. MacNeill is entitled to the life use of the invested fund in the plaintiff’s hands, and that upon her death her children, *147 forming a class including both those living at the testator’s death and any who may have been or may be thereafter born, or the legal representatives of any then deceased, take the principal of the fund in absolute ownership in equal shares between them per stirpes. No costs will be taxed in this court in favor of either party. In this opinion the other judges concurred.