Shepard's Heirs v. Shepard's Estate

— 116 — The opinion of the court was delivered by Ross, J. The contentions in this case arise upon the construction of the residuary clause of the will of Justus W. Shepard, which reads : “I give and devise the residue of my estate, both real and personal, in equal shares to my four sisters, Catherine and Calista Shepard and Betsey Martin and Elavilla Batchelder, to them and their children forever, with this condition, that if either oí my said sisters should die, leaving no children, then her share as aforesaid to the other sisters living, in equal shares.” The will is dated March 20, 1850. The testator deceased in 1867. In 1864 Flavilla Batchelder died, leaving one daughter, who has since deceased, leaving three children. Catherine Shepard.deceased April 11, 1878, leaving no children; Betsey Martin, October 2, 1882, leaving children; and Calista Shepard, October 2, 1883, leaving no children. The diligence of the counsel of the respective parties has brought to our attention a great number of decisions in which wills have been construed. A cai’eful examination of most of the cases cited, as well as of elementary text books upon the same subject-matter, enforces the truthfulness and justness of the opening statements of Lord SelbokNE, L. C., in his opinion in Waite v. Littlewood, 4 Eng. Rep. 760. He says : ‘ ‘ There can be nothing more certain than that every will is to be construed by itself, not with reference to othei wills; and all the light that can be got from other decisions serves only to show in what manner the principles of reasonable construction have, by judges of high authority, been applied in cases more or less similar.” All the principles of construction are only aids in ascertaining, with certainty, the intentior of the testator as found in the will itself. When that intention, if lawful, is once ascertained, it is the duty of the court tc declare and enforce it. One of the most helpful principles oi construction in ascertaining the intention of the testator is, tc give force and effect to every clause of the will. It is not tc — 117 — be presumed that he used an unnecessary word, or one to which no proper force can be given. It has not been intimated that any other part of the will aids the construction of the residuary clause quoted. The language of the bequest gives the residue to the four sisters and their children forever. The children can be legatees only in three ways : They can take pro rata with the sisters upon the decease of the testator; or, in substitution of such of the sisters as should decease prior to the testator ; or, as reversioners, the sisters taking a life estate in the residue. It is apparent that the 'testator intended the children to take as certainly and effectually as the sisters ; for he provides that the share of any sister who' shall die, leaving no children, shall pass to the surviving sisters. This also indicates a primary intention to provide, in the first instance, for the sisters, and subsequently for their children. The County Court evidently held that the children only took as substitutes for such of the sisters as should decease prior to the decease of the testator, and that the estate was to be fully distributed upon the close of the administration. The counsel for the heirs has cited many cases, and many others may be found in the elementary text books, where the courts have held that an executory devise conditioned that if one of a class die without issue, his or her share shall pass to the survivor or survivors vested upon the decease of the testator, and not after. But in all cases of this kind, so far as observed, the testator had provided that the child, or children, if any there should be, should take in substitution of the deceased parent. Here the testator has made no such provision ; but instead has declared, that the residue shall descend to “ their children;” that is, all the children of the four sistei’s. Against the vesting of the shares on the death of the testator is the language of the condition, that the share of the sister ¡dying, leaving no children, shall pass to the living sisters. ¡The usual meaning of share is that portion of the estate which ¡has already been set apart to a legatee; and becomes such con — 118 — temporaneously or subsequently, to the decease of the testator, but never antedates sucb decease. Tbis may not be a very potent circumstance; but it is said in Yol. 3, 609 (5tb Am. ed.) Jarman on Wills: “But although in the case of an immediate gift, it is generally true that a bequest over, in the event of the death of the preceding legatee, refers to that event occurring in the life-time of the testator, yet this construction is only made ex necessitate rei from the absence of any other period to which the words can be referred, as a testator is not supposed to contemplate the event of himself surviving the objects of his bounty; and, consequently, where there is another point of time to which such dying may be referred (as obviously is the case where the bequest is to take effect in possession at a period subsequent to the testator’s decease,) the words in question are considered as extending to the event of the legatee dying in the interval between the testator’s decease and the period of vesting in possession.” Here the language of the bequest naturally refers to the death of any of the sisters, whenever that might occur. It could not be ascertained until that time whether she would die leaving no children ; neither could the share of a sister thus dying after the decease of the testator pass to the surviving sisters, as the language of the condition naturally requires, if the share of each sister passed into her possession on the death of the testator. By holding that the death of the testator is the time, when the sisters then living should take in fee, and the children of the deceased sister, or sisters, should take only in substitution of their mothers, only a part of the children would, or might take at all; and such construction does not give full force to the language of the bequest “ to them and their children forever.” This naturally means, not a part, but all their children. Moreover, if the testator had intended that only the children of such of the sisters, as deceased while he was in life, should take, he would naturally have so expressed himself; or, if he had intended that they should take in substitution of their mothers, he would naturally have said “ to them or their — 119 — children forever,” instead of “to them and their children forever.” If this bequest be construed as giving a life estate to the sisters, with remainder to their children surviving, full force is given to every clause, and every word of the bequest. Then the language of the condition is intelligible and easy of application. On the death of any of the sisters leaving no children — whenever that may occur — ‘ ‘ then her share as aforesaid,” that is, the share in which she took a life estate, and the children, the reversion, passes to the living sisters in equal shares ; but only as life tenants. The language of the bequest is not that of an unqualified gift to the four sisters. First, their children are to take in same manner with them. Then the condition shows, whatever estate they severally take, is liable to be defeated on the contingency, if any of them die, leaving no children. The language of the entire bequest impresses us that it was the testator’s intention, as natural affection would prompt, to provide primarily for his sisters. When we look at the condition, we find they were not to take in fee, for the share thus taken was to be kept intact so it could, on the contingency there named, pass to the surviving sisters. Then their children were to take forever, or absolutely. Such being the construction, we place upon the language of the bequest, there is no latent ambiguity in the bequest which would permit the admission of the offered testimony, and there is no occasion to discuss the question when such testimony is admissible. On this construction, the shares of Catherine Shepard and Calista Shepard, who died leaving no children, pass equally to the grandchildren of Flavilla Batch-elder and to the children of Betsey Martin. The question has not been discussed whether by ‘ ‘ their children ” the testator intended they should take per capita or per stirpes. But the usual rule, in such cases, is they take per stirpes; that is, the children take only that of which their mothers would be life tenants, if they had survived the sisters who died leaving no children. It is apparent if all the sisters had died leaving-children, the children of each would take only the share of — 120 — their mother. But it is contended that the share of Calista Shepard, inasmuch as when she deceased, there was no surviving sister to take under the conditional clause, descended to her heirs. But if we have correctly construed the will, the whole residue was only given, to the sisters for life, and then was to pass to their children. Hence the fee of the residue vested at once in the children, the share of each child subject to be increased by the death of any of the life tenants, leaving no children. The authorities are to the same effect. A bequest to two daughters, and if one should die without issue, then to the surviving daughter and her issue. One of the daughters married and died leaving issue. Then the unmarried daughter died; and it was held that the money went to the issue of the married daughter although she did not survive her sister. Harman v. Dickenson, 1 Bro. Ch. 91. To the same effect in principle is Cross v. Maltby, 15 Eng. Rep. 384, and Wake v. Varah, 16 Eng. Rep. 781. Judgment of the County Court reversed and judgment that the original share of which Flavilla Batchelder would have been life tenant if alive at the death of the testator'was properly decreed to her daughter; that the original share of which Betsey Martin was life tenant be distributed to her children; and that the accruing shares of which Catherine Shepard and Calista Shepard were life tenants, be distributed, one half to the children or representatives of the children of Betsey Martin, if any have deceased since the decease of the testator, and the other half to the grandchildren of Flavilla Batchelder.