Hollister v. Butterworth

Baldwin, J. The object of the testatrix was to keep her property in her family for two generations. Her grandchil [60] dren were as much the object of her care as her children, and were to take directly as purchasers from her. Her daughter died without leaving surviving issue, and the fundamental question in controversy is whether the half of the estate set apart for her and her children has, under that condition of things, been disposed of by the will. It is contended by the executor of the son’s will that the phrase “if she die without such children or their issue surviving her,” was used by the testatrix solely in reference to the contingency of Mrs. Bailey’s death after her own; that it does not appear that the daughter was the survivor; and so that the remainder, being limited to take effect only in that event, failed, and this half of the estate became intestate, and went to his testator as the sole heir at law. Undoubtedly the testatrix contemplated the possibility or probability that her daughter would survive her. Her first care was to provide for that event by securing to her a life estate. But the words used for that purpose were also such as to give the daughter’s children, if any, an estate in fee immediately upon the decease of the testatrix, should she survive the daughter. The vesting of a prior life estate was not made a condition precedent to the vesting of the remainder created in their favor. Whether Mrs. Bailey were to die before or after Mrs Strong would have no effect upon the remainder, except so far as her survival might postpone the period of its enjoyment. The secondary provision by way of cross-remainder for the son and his children, must be read in the light of what preceded it. Used to qualify a devise in fee, the words, by a familiar rule of construction, would be taken prima facie to refer to a dying without issue in the lifetime of the testatrix. Lawlor v. Holohan, 70 Conn. 87, 90. But this rule has no application where the prior estate is one for life in the first taker with a vested remainder in his children. Mullarky v. Sullivan, 136 N. Y. 227. Nor, on the other hand, can the phrase in question be properly read as equivalent to “ if she die after me without such children or their issue surviving her.” There was no [61] reason for sending this half of the estate to the son and his children, if his sister outlived the testatrix, which if she died either before her or at the same moment of time, would not apply with equal force. In either event, to satisfy the main intent of the will, it was necessary that he and his children should take, for thus only could the property be unalterably preserved in the family to the second generation. It is therefore of no consequence whether Mrs. Bailey did or did not survive her mother. A daughter of the son survived her, whose interest, now held by her trustee, became by her father’s death an absolute fee simple in the entire estate. The Superior Court is advised that each of the first four questions reserved for our advice is immaterial; that the phrase “ die without such children or their issue surviving her” does not refer solely to the death of the daughter before the death of her mother; that no part of the estate of the testatrix was intestate; and that Kate Fearing Strong took a vested remainder in the whole of said estate immediately upon the death of the testatrix. In this opinion the other judges concurred.