Colt v. Hubbard

Butler, J. It is now more than two hundred years since the rule was adopted by English jurists from' the civil law, that where a legacy is given to a person “as,” “if,” “when,” or “ provided ” lie arrives at a certain age, or “ at ” that time, and there is no other controlling evidence of intention, the legacy is contingent, and where it is given generally and [286] “ payable ” or “ to be paid ” at such time, it is vested. The rule has also been adopted in' this country in several cases. The reason on -which the rule is based is said to be that in one case the time is annexed to the substance and constitutes a condition, and in the other to the -payment and does not constitute a condition. As a rule adopted and followed by the most eminent chancellors of England and some distinguished judges of this country, it demands respect. But-it is an arbitrary rule, for the use of some of those words does not necessarily import an intention to give the legacy contingently; and although in England, where most wills are drawn with technical accuracy by men educated to the business of convejmncing, it may be safe now to assume, as a rule, that the words are used in the technical sense they have acquired, it is questionable whether such an assumption is safe here. Most of our wills are drawn by men who have little or no technical knowledge of the rules governing the construction of wills, and who aim only at a plain and concise expression of the wishes of the testator. Where the words “ if” or “ provided” the legatee arrive at a certain age are used, the intention' to give contingently is clear. But the words “ as,” “ when ” and “ at,” may naturally be used, and probably are often used by the draftsman, when the intention of the testator is to give an absolute legacy, but to let it remain- in the hands of the executors until the legatee arrives at an age to be entrusted with the control of it; and where those words are used by a draftsman of ordinary intelligence and experience, 'and the legacy is specific, and the time fixed is that of legal age, and there is no bequest over, nor provision for intermediate support, or appropriation of the income, and nothing else to indicate an intention to give contingently, I think a court should hesitate to infer such an intention from their use alone. But in this case there is a provision for the intermediate support of the legatee, independent of and less in amount than the dividends on the stock which the testator must have anticipated, indicating an intention that the intermediate dividends should become part of his estate, and that the legacy was intended to be contingent, and we should not [287] be justified ia departing from the rule. We therefore advise that the plaintiff is not entitled to judgment for the dividends on the first legacy. But in respect to the residuary legacy we have come to a different conclusion. The residuary bequest is not contingent in terms. It is a bequest of the remaining arms company stock, to the “ persons and parties ” to whom shares of that stock had therein-before been given, to “ be shared by the same persons to whom I have given specified legacies in stock and in precisely the same ratable proportions.” That language gives a rule of division and nothing more. Doubtless it reaches to the quantum of interest, or estate in the shares, as well as the number of shares, because a divided interest in the same shares had previously been given to some of the “ persons and parties ” referred to, and they must share, according to the interest or estate given, with those having the remaining interest in the same shares. But it is none the less a simple rule of division. It has no reference to any conditions or contingencies attached to the previous bequests. The whole scope and import of the residuary clause, as a clear and unambiguous bequest, is answered, and fully and completely answered, when the residuary shares are divided to and vested absolutely in the persons and parties to whom shares of stock had been given., according to the interest of each therein. Standing by itself then it is not susceptible of any construction reaching beyond the number of shares and quantity of interest in them as thereinbefore given, without adding to its plain, clear and natural import; and can not be strained even so as to import an intention that the legacies it gives, or any of them, should be taken conditionally or contingently. Where else then do we find such an intention expressed. If we- turn to the body of the will we find nothing to indicate it. It has been urged in argument that the body of the will is the measure of the testator’s bounty towards his legatees, and that he desires that measure strictly and in all respects to be applied to the residuum. The body of the will is the meas [288] uro of his bounty as to the number and quantity of interest in the remaining stock, because and only because it is made-so expressly by the residuary clause. There is nothing else to make it so. When therefore it is said that the testator desires it to be the measure in all respects — in respect to conditions and contingencies as well as the number of shares and quantity of interest, — it is mere assertion. Nothing is pointed out or exists in the body of the will which authorises the assertion. There is indeed the fact that both legacies are of the same kind of stock. .-But it is not claimed that we can hold the condition attached to the first legacy applicable to the second for that reason ; and we have said we could not in a former decision. And it may be true that no plausible reason can be given why the first legacy should be given contingently and the second absolutely. But it is not for us to attach conditions and limitations or infer intentions which are not expressed or implied, in order to make testators consistent with themselves, in any case, certainly not in this. This original will was fully considered by a shrewd man, was carefully drawn, and disposed of an immense, estate. The residuary clause in particular is peculiarly studied and clear, and if such an intention had then existed, less than half a dozen added words would have expressed it. Shall we assume the intention to have existed, and then assume further that the testator, or draftsman, or both, mistakenly omitted them, because they thought them unnecessary, and add the words in- effect for the purpose of making the will consistent ?• These questions carry their own answer with them. Besides, the testator may never have had such an intention with respect to the original bequest. We haveholden that he had under the constraint of a well settled but technical and somewhat arbitrary rule of construction. But if the question had been new, we might as well have inclined against the limitation of the first legacy, because of the absolute terms of the-second bequest, on the ground that no plausible reason could be urged why both would not have been given contingently, if the intention existed at all, as the reverso. And we are satisfied that as the case stands the argument is without force. [289] It is further urged in effect, that as we have holden that the residuum is to be divided on a ratio of the interest of the parties in the stock, we are to look at-the value of the plaintiff’s interest in the first legacy, because a postponed legacy, and postpone his second legacy in order to give him the same value. The interest we regarded in the former case was an estate in shares less than the whole, to be shared by and between the father for life and the children in remainder, and as between them it was necessary to regard it. But the plaintiff takes an undivided estate in both legacies. We do not discover any force in that argument. On the whole we are satisfied that there is nothing in the body of the will or the residuary clause which will warrant the application of the condition attached to the first legacy to the second, so as to make the latter contingent, and that the superior court should be advised to render judgment for the plaintiff for the dividends accrued on his shares of the residuary stock. . In this opinion the other judges concurred.