Brewer v. Curtis

Pennewill, C. J., after stating the facts above, delivered the opinion of the court: There is but one question that need be considered in this case, and that is: Did the testatrix by her will direct, within the meaning of the statute, that the legacy given to her daughter should not go to her grandson if the daughter died in the lifetime of the testatrix? [506] Other questions were raised and argued, but they serve only to confuse and becloud the real question. (1) The statute applies to the will of any testator dying after the approval of the act, and, therefore, the fact that the primary legatee died before the statute became a law cannot prevent its application. The statute is broad in its language, and admits of no exception other than by direction of the testator. The codicil had no other effect upon the will than confirmation, and although the statute in question was not in force when the will was executed, and was in force when the codicil wa,s made that fact cannot affect the real issue in the case. Neither does the effect of a codicil on void or satisfied legacies arise, the sole question being: Did the testatrix by her will direct that the legacy given to the daughter should not go to her issue in the event of her death m the lifetime of the testatrix? [2] Manifestly the statute does not mean that the testator shall use the language of the statute to prevent its application, because it applies to wills made before as well as to wills made after its passage. And it would be unreasonable and too technical to hold, that to prevent the application of the statute the testator is required to say expressly that the legacy shall not go to the issue of the legatee dying in the lifetime of the testator. [3] Perhaps nowhere has the law respecting the application of antilapsing statutes been more concisely and correctly stated than in 18 Am. & Eng. Encyc. of Law, 758; “Statutes for the prevention of lapses are intended, not to defeat the will, but to supplement it, and ought not to control if it be inconsistent with the will to have them control.” This is equivalent to saying that such statutes should not be so construed as to defeat the intention of the testator as clearly shown by the language of the will. The vital question then in the present case is: Would it be inconsistent with the will and defeat the intention of the testatrix as expressed therein, if the grandson should receive the legacy bequeathed to his mother in addition to the amount specifically given to him, if his mother died in the lifetime of the testatrix? [507] Is it clear from the will that the testatrix intended that her grandson should not receive the legacy bequeathed to his mother? It is not enough to believe that such intention is probable and reasonable, in view of the language of the will and the surrounding circumstances. It must be more than debatable, otherwise in almost every case there would be diligent effort made to discover some ground or reason to defeat the operation of the law. To prevent the application of the statute, the court should be fully and clearly satisfied that the testator did not want the issue to take in the event of the death of the legatee in the lifetime of the testator. Presumably the statute was passed for a good purpose; it is very general, and should not be denied application in the present case unless the intention that it should not apply is as clear as it would be if the testatrix had used this language: “And in case my said daughter be not living at the time of my decease, I give him (the grandson), in addition to the above legacy, the sum of $6,000 and he is to receive no more of my estate.” It is argued in behalf of the appellant that if the will was made by the testatrix in contemplation of the then existing law, under which the legacy in question would lapse, it is equally true that the codicil, which reaffirmed the will, was made in contemplation of a law that saved the legacy for the grandson unless the testatrix directed otherwise, and she did not so direct. But while the codicil reaffirmed the will in all respects except as altered by the codicil, it is too much to say that it reaffirmed a legacy to a legatee who was then dead. The testatrix when she made the codicil knew her daughter had died, but she did not direct that the legacy that was lost to her daughter should be paid to her son, and presumably she was satisfied with the provision of her will that gave her grandson an additional sum of $6,000, if his mother died in her lifetime. It is true the will indicates that the testatrix intended that her daughter and grandson together should have practically one-half of her estate, but it does not indicate that the grandson should have as much if his mother died in the lifetime of the testatrix. On [508] the contrary, the will not only indicates, but expressly says, that in such event the grandson shall receive $6,000, in addition to what had already been given him. The direction that he shall receive a certain sum in a certain event must mean that he shall not thereupon have a greater sum, for the designation of one amount necessarily negatives a greater or different amount. The important and vital question is: How much of her estate did the testatrix want her grandson to have if his mother died in her lifetime? Did she intend that he should have, in that event, only $6,000 more than she had already given him? If such was her intention then manifestly she did not intend that he should receive the legacy bequeathed to his mother. [4] Inasmuch, therefore, as the testatrix specifically directed what part of her estate her grandson should receive if his mother died in her. lifetime we are constrained to believe it was her intention that he should not receive his mother’s legacy or any other part of the testatrix’s estate. When she gave the legacy to her daughter she contemplated that the daughter might die in her lifetime, and directed just what her grandson should receive in that event. Such direction we think fixed the limit of what he should receive and was equivalent to saying that he should in no event have any more of her estate. Such being the intention of the testatrix, as clearly shown by her will, we are of the opinion that the testatrix has directed that the legacy bequeathed to her daughter should not go to her issue, and therefore hold that the statute does not apply. Its application would be inconsistent with the will and defeat the intention of the testatrix as clearly expressed therein. The decision of the court below will be affirmed.