Hawke v. Lodge

The Chancellor: It is to be determined in this case whether the words of survivorship in the will relate to the period of distribution, the death of the life tenant, or to the time when the three children severally attain their majority, as they all survived the testator. This question has never been directly decided in this State in any reported case, though it has been passed on by many cases in the courts of England and this country. In this State the courts have favored an early vesting of estates given in remainder, especially where the subject of the gift is real estate. Wright v. Gooden, 6 Houst. 397. But in this cited case there were no words of survivorship to be construed. In England prior to the case of Cripps v. Wolcott, 4 Madd. 11, decided in 1817, there was no uniformity in the decisions respecting gifts to survivors preceded by a life estate; but since that case the law has been settled, that the death of the life tenant and not that of the testator is the period to which words of survivorship relate. In Jarman on Wills the English rule is thus stated, after a consideration of many of the cases: . “In this state of the authorities, one scarcely need hesitate to affirm that the rule which reads a gift to survivors simply as applying to objects — 150 — living at the death of the testator, is confined to those cases in which there is no other period to which survivorship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and of those only.” To the same effect is Hawkins on Wills, 261; Theobald on Wills, 508. Indeed, it is conceded that such is the general rule in England. There is no uniformity in the decisions of the courts of the several states in this country, and they cannot be harmonized, and in some states statutes have been passed declaring the law on the question. California, Illinois, Kentucky, Massachusetts, New Hampshire, New Jersey, North Carolina, Ohio, South Carolina and Wisconsin seem to have adopted the present English rule. So also has Maryland, apparently, in Ridgely v. Ridgely, 100 Md. 230, 59 Atl. 731. New York has probably followed a different rule, though the cases there cannot be reconciled, and no attempt will be made to do so; and there is a like uncertainty as to the position of the courts in Pennsylvania. Georgia, Indiana and some other states have adopted a rule different from the English rule. Probably the great weight of the authorities in this country is for the English rule. 30 Am. & Eng. Ency. of Law (2d Ed.) 808, 809. In view of this conflict of authority, this Court will adopt the rule of the English cases, which followed Cripps v. Wolcott, and now holds to the general rule, that where there is a gift of personal property to several persons, or the survivors or survivor of them, preceded by a life estate, the survivorship relates to the death of the life tenant, and not cf-the testator, and only those persons who survive the life tenant are entitled to shares in the bequest. It is believed that the adoption of this rule will more effectually carry out the intention of the testator :n most cases than any other rule, for it seems to be the natural meaning of the words and one to be adopted by those not unduly influenced by the desire for a vesting of estates and interests at the earliest period. Whether or not the rule applies also to devises of real estate is nc-t here decided, because it is not necessary to do so. It is urgently contended, however, by the defendants’ solicitor,that whatever may bp the general rule as to survivorship — 151 — after a life estate being referred to the period of distribution, there is another principle made applicable by the words, “at their majority,” which makes the attaining their majority the date of vesting, though payment be postponed until the death of the life tenant; so that as John W. Paynter survived the testator and attained twenty-one years of age, he took a vested one-third interest in the trust fund, of which he was not divested by his death before the life tenant, his mother, and that his share is now payable to his administrator. There are cases deciding that if, following a gift of a life estate, there be a gift to several persons or to a class of persons upon their attaining twenty-one years, with the benefit of survivorship, then the words of survivorship relate to the period when the age is attained, and not to the death of the life tenant; and those persons who attain the age during the life of the life tenant, and die before the life tenant, take shares with . those who attain such age and survive the life tenant. Survivorship in such cases is referred to the period of vesting and not of distribution. Hawkins on Wills, *264; Theobald, on Wills, 510; Bouverie v. Bouverie, 2 Phillips, 349; Crozier v. Fisher, 4 Russ. 398; Corneck v. Wadman, L. R. 7 Eq. 80; Berry v. Briant, 2 Dr. & Sm. 1; Tribe v. Newland, 5 De G. & Sm. 236 (1852). In some of these cases cited there were words in'the gift which enabled the Court more readily to apply the above principle, which is thus stated in Theobald on Wills, 510: “If the gift is, after a life interest, to a class to be paid at twenty-one with benefit of survivorship, survivorship refers most naturally to the age of twenty-one just before mentioned.” Theobald says, very wisely, that this construction is assisted by a gift over upon the death of all under twenty-one, and cites Salisbury v. Lamb, Ambler 383; Bouverie v. Bouverie, 2 Phillips, 349; and Ally v. Moss, 34 L. T. R. (N. S.) 312; and that it is rebutted if the gift over is upon the death of all before the life tenant, and cites cases to the latter point. But neither of these provisions are found in Joshua Pyle’s will, and so no application is made of these principles in determining the question under consideration. — 152 — It will be noted, however, that in the will of Joshua Pyle under consideration, the words of survivorship are not in the same position in the sentence to be construed as in the cases above cited and relied on by the defendants. Here instead of a gift to be paid at twenty-one with benefit of survivorship, the gift is to a class with benefit of survivorship at their majority, meaning at most payable at their majority, or when and as they severally attain twenty-one years of age. There are authorities which hold that, when the direction as to payment is independent of the gift to survivors, words of survivorship refer to distribution, and Theobald thus states the principle: “If, however, the direction as to payment is independent of the gift to survivors, the ordinary rule prevails; if, for instance, the gift is to surviving children at twenty-one." Theobald on Wills, p. 511. And he cites as his authority Huffam v. Hubbard, 16 Beav. 579; Pope v. Whitcombe, 3 Russ. 124; Crozier v. Fisher, 4 Russ. 398; Lill v. Lill, 23 Beav. 446: and Daniel v. Gorsett, 19 Beav. 478. This principle seems clearly applicable to the care at bar, and is controlling if established by satisfactory decisions. The cases of Huffam v. Hubbard, and Pope v. Whitcombe sustained the principle stated by the learned author, while the other cases he cites do not seem to do so clearly, though they are not opposed and may be disiegarded because of the peculiar terms of the gifts construed. In Huffam v. Hubbard, 16 Beav. 579 (1853), money was bequeathed in trust for the testator’s wife for life and at her death to her surviving children “when they have attained their twenty-one years, share and share alike.” There were four children, but three only survived their mother. Held, that the representative of the deceased child took nothing. Sir John Romily, M. R., followed Cripps v. Wolcott, and distinguished Crozier v. Fisher, saying that in the latter case there was an express direction that the distibution should be when the youngest child attained twenty-one years. It should be noted that there is great similarity between the language of the will in this case and that of Joshua Pyle, though it does not appear (perhaps because considered unimportant) — 153 — whether the two children who died before the life" tenant had then attained twenty-one years of age. In Pope v. Whitcombe, 3 Russ. 124 (1827), there was a gift by will in trust for the testatrix’s brother for life .and after his death a gift to four persons and the survivors or survivor of them, share and share alike, to be paid to them respectively as they should attain the ago of twenty-one years'. Two of the four persons died in the life of the life tenant, and it was held, that they did not take vested interests, but the whole of the estate belonged to the two survivors. Whether or not the two beneficiaries who died had then attained the age of twenty-one years does not appear. The case of Knight v. Knight, 25 Beau. 111, seems to be clearly contra. There money was given in trust for a life, followed by a gift of money “equally among my grandchildren with benefit of survivorship upon their severally attaining his or their age of twenty-one years. ’ ’ At the termination of the life estate there were five grandchildren who had then attained twenty-one years and another grandchild, Henry, had attained twenty-one years and died before the life tenant. Held, the survivorship referred to the period of attaining twenty-one years and not the death of the life tenant. Therefore the fund was divided into six parts and the representatives of Henry took one. The case of Alty v. Moss, 34 L. T. R. (N. S.) 312, cited and much relied on by the defendants’ solicitor, would be am authority for the defendants’ contention, except that there the will contained a provision not in Joshua Pyle’s will, viz., a gift over in case all the children died before attaining their majority. This gift over indicates that survivorship relates to the attaining majority, and this is evidently the view cf Theobald. See page 511, above referred to. In this state of the authorities, the decision in Huffam v. Hubbard and Pope v. Whitcombe will be followed. They are approved by two learned writers, Theobald and Hawkins, who with their peculiar ability consider both principles and authorities scientifically and are unaffected by any of the hardships which sometimes result from the adoption of one rule rather than another. Besides, the reasonableness of the rule commends it. Looting at Joshua Pyle’s will the simplest and most — 154 — natural construction is, that survivorship relates tc the time of division, the death of Esther Ann Paynter; and though divided at her death, the fund is not payable until her children who survive her shall severally attain twenty-one years of age, and the words “at their majority” can have no wider meaning. This conclusion eliminates John W. Paynter from participating in the division of the fund, as he was not alive at the death of his mother, though he had attained his majority before he died. A decree will be entered accordingly.