Pimel v. . Betjemann

Cullen, Ch. J. I agree with Judge Vann that the provision of the statute (2 R. S. 66, § 52) applies to a case where a legacy is given to a person dead at the time of making the will. Indeed, I find but two jurisdictions, Rhode Island and Maryland, in which a contrary rule obtains. (Almy v. Jones, 17 R. I. 265; Billingsley v. Tongue, 9 Md. 575.) But the question remains whether the will of the testator did give the mother of the plaintiff a legacy, and this is the real question in this case; that is to say, whether the gift to the testator’s children included a child deceased before making the will. The question is not as to the effect of the statute,' but as to the intent of the testator. Before discussing the question on principle I shall review the state of the authorities and, of course, in such review, refer only to those jurisdictions in which fit is held that a legacy to a child deceased at the making of the will falls within the statute. The revisers’ note to section 52 states that it was taken from a statute of Massachusetts on the subject. How, as I read the decisions, the -law in Massachusetts is not that a gift to a deceased relative is void and without the statute. In Rowland v. Slade (155 Mass. 415), the leading case in that state on the subject, the decision that under a gift to “ all my first cousins,” the issue of first cousins deceased before the *198 making of the will could not take, while the issue of those who died intermediate the will of the testator and his death could take, proceeded not on the principle that a legacy to a dead person was void, but on the ground that under well-settled authority such a gift indicated no intention on the part of the testator to include cousins already deceased. In Georgia the decisions are in harmony with those of Massachusetts. In Cheney v. Selman (71 Ga. 384) it was held that a legacy to a person dead at the time of the making of the will was not void but went to his issue. But in Davie v. Wynn (80 Ga. 673), the devise being to the nephews and nieces of the testator, it was held that the issue of two nieces who had died prior to the making of the will could not take because, on account of their previous death, they did not fall within the class to whom the testator had given his property. It was said in substance there that the question was the construction of the will, not the effect of the statute. The same doctrine was held in Tolbert v. Burns (82 Ga. 213). To the same effect is Downing v. Nicholson (115 Iowa, 493), where the learned court conceded that if the gift had been to an individual by name, the decision would have been different. In England the statute (1 Yict. ch. 26) differs from our own in sending the legacy to the personal representatives of the deceased legatee instead of the substitutional gift to the legatee’s issue provided by our statute. This does not affect, however, the question before us, which is substantially the same under both statutes. The rule in England is the same as that which prevails in the most of our states, that it is immaterial whether the death of the legatee happens before or after the date of the will. (1 Jarman on Wills, 323.) But it seems that it is also the settled rule there that where a gift is to a class the statute does not apply. (Olney v. Bates, 3 Drewry, 319.) It was observed by the vice-chancellor : “ The intention of the legislature was to provide against lapse merely, not to alter the construction which is to be put on any will.” (To the same effect see, also, Browne v. Hammond, Johnson, 210; Harvey v. Gillow, Law Journal Rep. [62 *199 Chanc. Div.] p. 328.) On the other hand it lias been held in Maine (Nutter v. Vickery, 64 Me. 490; Moses v. Allen, 81 Me. 268) and in Missouri (Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546) that the issue of a class who are deceased at the time of the execution of a will take under the statute the same as the issue of those who die subsequently but before the testator. These are the only authorities on the precise question which I can find. The Kentucky case (Chenault v. Chenault, 9 S. W. Rep. 775) is not in point because the decision was based not on the statute as originally enacted in that state, substantially in the same- form as our own, but under two sections subsequently added, which have no existence either in form or substance in* our legislation. All the case of Barnes v. Huson (60 Barb. 598), in the Supreme Court of this state, decides is that where a legacy or devise is given to a dead child in express .terms the legacy under the ■statute is not void .nor does it lapse but goes to the issue of the child. This is simply what I have said is the rule in most jurisdictions. Wilberger v. Cheek (94 Va. 517) is to the same effect. There the deceased legatee was expressly named, and so far as the opinion relates to bequests to a class under another clause of the will it does not in any respect deal with the question before us. It seems to me, therefore, that the clear weight of authority is in favor of the proposition that a bequest to a class does not include persons dead before the making of the will; who, had they survived till that time, would have fallen within the description given to the class, of course, in the absence of something in the will or surrounding circumstances to show a different intent. There can be no question as tc the evil intended to be remedied by this legislation. It was to abrogate in the case of the death of a child before that of the testator the common-law rule that a devise or legacy to him lapsed and to substitute the children of the deceased child for. the primary object of the testatops bounty. This is recognized in all the cases and text books, where it is often said that many testators are ignorant of'the common- *200 law rule, and in most cases the rule operates to defeat the intention of the testator. As was observed in the English' cases cited it was not enacted to change the construction to be given wills. In the opinion delivered in Nutter v. Vickery (supra) it is said that the argument against including children or relatives deceased, at the time of making the will, is based upon the ’ distinction between lapsed and void devises and the assumption that the statute takes effect only in case of lapsed legacies. The learned court, I think, i as here fallen into error, for, as I have shown in several jurisdictions which hold that void legacies equally with lapsed legacies fall within the statute, it also held that in the case of a gift to a class persons who have predeceased the execution of the will are not members of the class. This rule accords with the actual intent of testators. Nothing is better settled in the law of wills than that the term “children” does not include grandchildren or more remote descendants, unless there is something in the will to show that the word was used in a broader sense. This is not • based on any technical rule of law ; on the contrary, it is founded on the ordinary meaning of the word and the presumption that the testator has used the term in its ordinary sense. The decision below overturns this rule and declares that a devise or bequest to children of the testator includes grandchildren. The distinction between a dead child expressly named or otherwise identified in a will and one who must take under the designation of a class seems to me very plain. Where the testator names the deceased child there can be no room for doubt that he intends him or his issue to take, and the statute gives effect to that intent. Where, however, a testator writes or speaks of his children in general terms he does not include grandchildren. So the courts have uniformly held, and such, I think, the experience of all of us will confirm as being the actual fact. So, also, there is a plain distinction between the death of a member of a class subsequent to making the will and a death prior to that time. In the first case it is both possible and probable, unless some provision for the contin *201 gency is made in the will, that the testator did not anticipate its occurrence. In the latter the occurrence is not contingent but has actually happened, and, therefore, the fact is necessarily present in the testator’s mind except in some exceptional case. Take the present case. The plaintiff’s mother had died five years before the will was made and of her death the testator was entirely aware. If he had intended to leave a legacy to his grandchild he would have said so, instead of leaving his intention to be worked out ii an indirect manner under a statute of which in all probability he was as ignorant as he was of the rule which the statute was enacted to abrogate. Moreover, a legacy of five hundred dollars is given to each of the testator’s children who might not have arrived at the age of twenty-one years, only as he reached that age. The plaintiff was less than five years old at the date of the will and less than seven years old at the death of the testator. If the-testator intended that the plaintiff should receive a legacy of five hundred dollars, can there be any, question that the gift would have been subject to the same restriction as that imposed in the case of his own children, to wit, that it should he payable only on his reaching the age of twenty-one years ? Yet, under the decision below, he became entitled to the legacy thirteen years before reaching his majority, and, of course, is awarded interest on it from that time. I appreciate that at times, on account of fixed rules of law, to depart from which wmuld create confusion, it is necessary for courts to attribute to a testator an .intention which it is very doubtful if he actually had, but we are not compelled to construe a statute so as to effect such an unfortunaté result when there is nothing in tlm statute that deals with the construction of wills. I think the judgment below should be reversed and the complaint dismissed, with costs.