McLean v. . Freeman

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 83 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 84 The trust for the benefit of Alexander McLean, under the will of his father John McLean, failed ab initio by his death without issue during the lifetime of the testator. The particular trust, therefore, never took effect, and as no act or duty was to be performed by the trustees in the execution of the trust or in the transfer of the property which would have been the subject of the trust had it come into existence, either to Mrs. Halsted, the ultimate devisee and legatee, or the heirs at law and next of kin, as either the one or the other should be entitled, no estate vested in the trustees. (1 R.S., 729, §§ 60, 67; Doe v.Edlin, 4 A. E., 582. The primary gift to trustees for the benefit of Alexander constituted no hindrance to the gift over upon the defeasance of that gift. (1 R.S., 729, § 61.) An ulterior devise or a gift over to take effect upon the defeasance of a former devise, will take effect whether the failure of the primary devise is by the happening of some event, as the death of the devisee in the lifetime of the testator, so that the failure was absolute at the death of the testator, and the taking effect of the will, or by some event happening subsequently, and after the first gift has taken effect subject to the condition by which it is limited, and may be defeated. (Norris v. Beyea, 3 Kern., 273; Mowatt *Page 86 v. Carow, 7 Paige, 328; Downing v. Marshall, 23 N.Y., 366.) The testamentary gift for the benefit of Alexander, the son of the testator, could not take effect by reason of his death without issue in the lifetime of the testator, and the ultimate disposition of that portion of his estate in favor of Mrs. Halsted, took effect immediately on the death of the testator, and is the only effectual disposition of it unless by express terms or by necessary implication the devise to Mrs. H. is made to depend upon some condition to happen after the death of the testator, and after the taking effect of the prior gift to trustees for the benefit of the son. Unless the testator has so limited the ultimate devise to Mrs. H. as to connect it with and make it dependent upon the primary gift in a way that it cannot consistently with the provisions of the will have effect if the first gift fails ab initio by reason of the death of the object of the gift, Mrs. Halsted was the primary object of the testator's bounty at the time of his death, and is entitled to the property devised and bequeathed to her. It becomes then a question of intention to be judicially ascertained by an interpretation of the terms of the will in the application of established rules of construction with such extrinsic aids as are permissible. The intention of the testator is said to be the "pole star" or "sovereign guide" for the interpretation of testamentary instruments, but the rules for the ascertaining of such intention are certain and definite, and the intention is not a matter of arbitrary conjecture or surmise. If the ultimate devise and bequest to Mrs. Halsted falls with and by reason of the failure of the primary gift, the same result would have defeated the provision for the children of Alexander had the latter died before the testator, leaving issue, and this intent will not be imputed to the testator, except so declared in terms or necessarily implied from the language of the will. The intent to disinherit his grandchildren by the happening of an event in no way connected with, or bearing upon his relation to, or desire to *Page 87 provide for them, will not be presumed. It is very evident from the whole will and all its provisions that the testator did not contemplate intestacy in respect to any portion of his estate, and yet if the appellants are right he died intestate as to one-fourth of his estate. A testator is presumed to calculate on the dispositions of his will taking effect, and hence several and succeeding gifts of the same fund or property will be considered as intended to take effect in their proper order, each object of the testator's bounty to take upon the failure of the prior dispositions, either ab initio or at any time before it becomes indefeasible in the donee. It must be conceded that, in framing the tenth clause of the will, the testator had in his mind the probable survivorship of his sons William and Alexander, and the primary object of the limitation over upon a literal reading of the will, was to provide for their death, after, by his own death, the will should have taken effect, and the trust estate vested in the trustees. The third clause of the codicil is engrafted upon and made a part of the tenth clause of the will, and the language of both is based upon the same calculation of the continuance of the lives of the first beneficiaries beyond that of the testator. The phraseology of the provision applies primarily and obviously to that contingency, but it is not necessarily repugnant to a more enlarged and reasonable interpretation, and as providing for a lapse or failure of the first gift ab initio. Although the will takes effect, and speaks from the death of the testator, yet in ascertaining the intent of the testator, it may be considered as speaking qualifiedly at the time of its execution, and to the trust proposed to be created, considered as existing as it did in the mind and intention of the testator from that time, and in that view the estates were held in trust at the time of the death of Alexander. The language of wills are not to be subjected to astute criticism, or a literal interpretation. The terms of the will indicate an intention to give this one-fourth part of the estate; first, for the benefit of his son Alexander; secondly, upon his death, before the estate should have indefeasibly *Page 88 vested in him, to any issue he should leave him surviving, and thirdly, upon his death, without issue, before the absolute vesting of the estate to Mrs. Halstead. There was no necessary connection between these several and successive gifts, or in the relation of the testator to the several contemplated beneficiaries, or in the circumstances of the case, which would connect these dispositions, and make either of the two latter to depend upon the life of the first beneficiary, so that the trust in his favor should come into actual existence. On the contrary, the successive gifts must be reasonably understood as intended to provide against a lapse or failure of the preceding gifts at any time and for any reason. The clause should, therefore, to carry out the intent of the testator, be read as if the limitations over had been in terms to take effect upon the death of Alexander, before the termination of the trust, by the conveyance of this portion of the estate, by the trustees to him, or upon the failure of the gift to the son. The clause may be so read without doing violence to the language of the will. The gift to the issue of Alexander, and failing such issue, to Mrs. H., were not limited upon the trust in favor of Alexander, or expressly conditioned upon the actual existence of that trust, but were substituted for the trust in the event of its defeasance before it was fully executed and terminated by a transfer to the donee. That was the substance of the limitation of the devise over to the ultimate donees. This interpretation is warranted by the well-established rule requiring effect to be given to the intent of a testator, irrespective of the particular phraseology of the will, when not repugnant to the terms of the instrument, and is supported by authority. (Pearsall v.Simpson, 15 Vesey, 29; Hutton v. Simpson, 2 Vern., 722;Crosby v. Wendell, 6 Paige, 548; Meadows v. Parry, 1 Ves. B., 124; Murray v. Jones, 2 Ves. B., 313; Mackinnon v.Sewell. 5 Sim., 78; Avelyn v. Ward, 1 Ves. Sen., 420;Bainbridge v. Cream, 16 Beavan, 25.) Some of the reported decisions are supposed to be in conflict with those referred to, and with the conclusions to which *Page 89 I have been led in this case. Doe v. Brabant, 4 T.R., 706; S.C., 3 Brown's Chy. R., 393, and Calthorpe v. Gough, id. 395, in notes, are leading cases quoted as adverse to Avelyn v.Ward, and other cases holding with it, and Lord THURLOW, inDoe v. Brabant, regarded Calthorpe v. Gough as overruling the prior decisions. But Mr. JARMAN thinks they are reconcilable, and that both may stand upon principle. Avelyn v. Ward, and the principle there decided, is fully recognized in subsequent eases. (2 Jar. on Wills, 710.) It may be difficult to harmonize all the reported decisions bearing upon the question in hand, and each case must in the application of general and recognized principles depend very much for its result upon its own peculiar circumstances. The principle that the intent of the testator must control when not inconsistent with the terms of the will is too firmly established to be now questioned, and in the application of that principle the judgment of the court below should be affirmed. All concur, except RAPALLO, J., absent. Judgment affirmed.