Webb v. Hitchins

Chief Justice Merour. delivered the opinion of the Court, March 17th, 1884. This contention arises under a- clause in the will of Sarah Warner. It is in these words: “I give, devise and bequeath unto my daughter, Anna Webb, late Anna Warner, my messuage and lot of ground situate on the North side of Mary Street above Front Street, for and during all the term of her natural life, she paying the taxes and water rent, and keeping the same in good condition and repair, and from and immediately after the decease of my said daughter, I give, devise and bequeath the same unto her daughter, Sarah B. Loag in fee simple, and in case of Sarah B. Loag’s death, then to be divided amongst the children.” The question is what children did the testatrix mean when she said “ the children.” The case stated, inter alia, shows that the testatrix left surviving her, one son and three daughters. The son and two of the daughters are still living. The daughter Anna was the wife of Albert Webb. Sarah B. Loag was the daughter of Anna by a former marriage. At the date of the will she had no children by Mr. Webb, but was then enceinte, which fact was known to the testatrix. After the date of the will and before the death of the testatrix a child of this marriage was born and after her death another child was born. These two children are the plaintiffs in error. After the death of the testatrix, Sarah B. Loag married Hitchins; but afterwards died during the life time of Anna Webb, the life tenant, and left a husband and one child surviving. This child is the defendant in error. [95] The inquiry now is, what was the intent of the testatrix ? That intent gathered from the whole will furnishes the cardinal rule of construction. When it is not inconsistent with established rules of law and manifested with sufficient certainty it must govern. Middles war th’s Admr. v. Blackmore, 24 P. F. Smith, 414; Schott’s Estate, 28 Id., 40; Reck’s Appeal, Id., 432. Facts existing and known to the testatrix at the time she executed the will, furnish strong aid in arriving at her intention. The will bears date the 23d of April 1866. Sarah Loag did not marry until December 1873, being more than seven and a half years after its date. Probably she was a mere child at the time of its execution; but however this may be, there is nothing in the will indicating that the testatrix had in her mind the contingency of a subsequent marriage of Sarah and of her death leaving children surviving. While both these contingencies may have been considered possible yet in the absence of any reference thereto in the will, we cannot assume they wore provided for by the testatrix, when a more reasonable intent can be fairly deduced from the language used. The testatrix executed her will with full knowledge that Anua Webb was married and pregnant; that she was therefore of child-bearing age, and might give birth to other children. The unborn child was in esse, and others might follow. This one was capable of inheriting, and of being a devisee, when the will was executed. It was actually born before the death of the testatrix. When a parent or ancestor in disposing of property,, and in designating the objects of her bounty, speaks of “the children,” we think it more reasonable to assume that she intended those in being, or those likely to be born of an existing marriage, ratlier than those who, at some remote and indefinite time in the future, might possibly be born of a marriage neither existing nor contemplated. As then a fair and reasonable intent can be given to the language of the will by applying it to the children nearer to the testatrix, we cannot so construe it as to disinherit them and carry the property to those more remote, and who, we think, did not enter into the thought of the testatrix. Other language in the clause cited still further indicates that the testatrix did not intend to give the property to children of Sarah thereafter to be born, in case of her death during the life of her mother. Thus it does not purport to make an immediate devise to Sarah, to vest an estate in her on the death of the testatrix, reserving a life estate to Anna Webb; but it is a devise to the latter during the term of her natural life, and it is not until “ from and immediately after ” her death, that the testatrix declares, “ I give, devise and bequeath the [96] same unto her daughter Sarah.” "While the relative order of the two devises may not change the legal-effect of the estate intended to be given to Sarah in case she survived her mother, yet we think it indicates a purpose in case of Sarah’s death before she has any right of possession, not to give the estate to any of her children. Nor does the fact that the testatrix in á subsequent clause of her will provides that the remaining portion of her household furniture be divided equally among “ my children ” change the reasonable purport of the previous clause. She gave to each of her other children certain property absolutely. It was therefore very reasonable that she should give to the children of Anna Webb who should survive their mother, the estate of which the latter had the use during her life. This, we think, is the more reasonable intent of tjie testatrix, as manifested by the whole will. It follows that the learned Judge erred in entering judgment in favor of the defendant in error. Judgment reversed, and now judgment in favor of the plaintiff in error on the case stated.