Domestic & Foreign Missionary Society v. Pell

Dureee, C. J. The question here arises thus : The late Alexander G. Mercer, by Section III. of bis *457 last will, 1 gave, among other gifts, the sum of $1,000 to the Rev. Dr. H. A. Boardman, and the sum of $500 to William Rushton, Jr. By Section XI. of his will he appointed the plaintiff and another corporation residuary legatee “ so that,” to use the lan-„ guage of the will, “ in case any of my preceding gifts, specially my gifts to public purposes, should fail (for any reason now unimaginable to me), my property shall surely go, in such event, to the work of establishing the knowledge and following of Jesus Christ among our American people.” Boardman and Rushton predeceased the testator, leaving lineal descendants. Our statute, Pub. Stat. R. I. cap. 182, § 14, provides that “ whenever any child, grand child, or other person, having a devise or bequest of real or personal estate, shall die before the testator, leaving a lineal descendant, such descendant shall take the estate, real or personal, as devisee or legatee, in the same way and manner as such devisee or legatee would have done in case he had survived the testator.” The same provision was in force when the will was made. Rev. Stat. R. I. cap. 154, § 12. Under this provision the descendants of Boardman and Rushton claim the legacies. The plaintiff, on the other hand, claims them under Section XI. of the will. The argument in support of the latter claim is, that the will contains expressions from which it is apparent that the legacies in question were prompted simply by the personal regard which the testator cherished for the legatees, and were intended by him as purely personal gifts, and that it is therefore more consonant with the will to hold that they “ failed,” within the meaning of Section XI., when the legatees died, than to hold that they passed to the descendants of the legatees under the statute. We agree with the plaintiff that the statute was intended, not to defeat the will, but to supplement it, and that it ought not to control, if it be inconsistent with the will to have it control. Daboll & Johnson, Administrators, v. Field et als. 9 R. I. 266. We also agree with the plaintiff that the will contains expressions from which it may be inferred that the legacies were prompted by the personal regard which the testator had for the legatees. But still we cannot adopt the conclusion which is drawn. We think it must be presumed *458 that the testator made tbe will in view of tbe statute, and that be intended to bave tbe statute prevail unless tbe contrary appears. Tbe burden of showing the contrary is on tbe plaintiff, and we do not think tbe burden is lifted when it is made to appear that tbe legacies were prompted by personal regard. Tbe fact that legacies are prompted by a personal regard for tbe legatees is not at all inconsistent with an intent to bave them go to tbe descendants of tbe legatees in ease tbe legatees themselves die before tbe testator. The plaintiff must go further and make it appear that tbe legacies were not only prompted by personal regard, but that they were, as be claims, intended to be purely personal gifts, i. e. that they were intended not to go to tbe descendants of tbe legatees under tbe statute. We do not think tbe expressions in tbe will, on which tbe plaintiff relies, meet this requirement. Tbe demurrer is overruled. Judgment for defendant for costs. Francis B. Pecleham, for plaintiff. Samuel B. Soney, for defendant. Footnotes [1] This -will is printed at length, ante, pp. 414-418.