Worcester v. Worcester

Wells, J. When a testamentary gift is made to take effect in possession immediately, the objects for whom it was intended, under a general description, are to be ascertained in reference to the time of the death of the testator. But when it is postponed beyond the time of his death, then those who come within the description, before the period or event upon which the gift is to take effect, or the distribution is to be made, will ordinarily be included as within the probable intention of the testator. But the rule is subject to modifications in both aspects. It is the office of construction to give effect, as nearly as practicable, to the intentions of the testator, gathered from the character of the provisions he has made, and the terms he has used to express his purposes. [133] There is no controversy in this case in regard to the general rule, above stated. The counsel for the after-born child of Frederic A. Worcester invokes the rule in bis favor, contending that the will of Joseph E. Worcester does postpone the taking effect of this residuary bequest, at least for the purposes of distribution ; first, by charging his estate with the payment of annuities ; second, by the devise of part of his real estate to his wife for her life. 1. But the right to a residuary bequest, and to have distribution, is not postponed by the charge of annuities upon the estate. Provision may be made for the security and payment of such annuities, as well as of other pecuniary legacies and debts, leaving the residue, in interest, to be distributed. The necessary delay required to accomplish this, or unnecessary delay, will not operate to postpone the right, so as to let in those, who happen to come into existence meanwhile, to claim a share in the gift. 2 Jarman on Wills, (Am. ed.) 77. 2. This is not a residuary devise, nor a devise of the remainder after the life estate of the widow. The gift is indeed of “ the residue of my estate, both real and personal; ” but it is to take effect, and to be divided, as a pecuniary legacy; and the real estate is directed to be sold “ as soon as may be advisable for the purpose of making such distribution.” Under this bequest, the whole real estate might be sold at once, including the remainder after the life estate of the widow, and the proceeds applied to the residuary legacies. The provision that this remainder is, “ upon her decease, to be disposed of as the residue of my real estate,” relates to the mode and order of disposal, rather than to the time when it shall be made. It is to follow, and not to control, the disposition of the other estate. We do not find, in any part of the will, any indication that the testator contemplated that the ultimate vesting and distribution of these legacies would be postponed to a later period than one year after his decease. There is a strong implication against such a supposition, in the particularity with which he provides for the case of a nephew or niece who should not survive him more than one year. The effect of that clause in case [134] of a nephew or niece bom within the year we need not consider. In this connection, the qualification, “ who may survive me,” seems to us to have much force. The testator must have had in his mind only those who should be living at his decease; and his directions are adapted to the distribution of his estate at the end of the usual period of one year from that event. This, we think, is conclusive upon the question. The mention of Samuel T., who had no children, among those whose children were to share in the residue, is not sufficient to overcome the considerations which show a purpose of immediate distribution. Other reasons for it may be readily suggested. There was still a possibility of children before the decease of the testator; and it might also have been from an unwillingness to omit his name from among the brothers.who thus, through their families, received recognition in the will. As already suggested, the birth of the claimant, before the distribution actually takes place, does not entitle him to share therein. The rights of the legatees are fixed according to the time when they were entitled to call for the distribution. Instructions accordingly.