Loockerman v. McBlair

Magruder, J., delivered the opinion of this court. The late Jeremiah T. Chase, died in the year 1828. He made a will dated in 1824, to which several codicils were added. One of the devises is in these words: “ I will, devise and give to my dear grand-children, my lots on Whetstone Point, Nos. 10, 11 and 12, to them, and their heirs forever, to be equally, divided among them.” At the time of executing the will, the testator had several grand-children in being. Others were born after the will was executed, but before his death; and the son of the testator had three children born after the death of the latter; the eldest of them was born in 1830. An application having been made in behalf of the last three grand-children to be considered among the devisees, (each entitled to an equal interest in the devised premises with each of the older children) the Chancellor so decided, and the single question now to be determined is, whether those three children born since the death of Mr. Chase, have, in the premises devised to his grand-children, the interest which the Chancellor has allowed to them. If the property is not to vest immediately after the death of the testator, but the vesting of it in possession is postponed, then such grand-children as are born before the property does vest in possession, may take. In this case, however, the devise is immediate. Those who are entitled to the devised premises became entitled to the land, so soon as the testator died— the description of the persons to take is general, and only those, who at the time of the testator’s death came within that description can take. In 3 Bro. Chan. Cases, 404, note A, to Andrews and Partington, it is said that the testator’s intent must prevail. This is not always the case. Lord Eldon, in Walker vs. Shore, 15 Vez. 125, said, “the construction I am obliged to make in this cause, may break in upon the actual intent of the testator: [180] this rule, we are told by the master of the rolls, 11 Vez. 238, is a rule of necessity, and as soon as any became entitled to a vested interest in possession, after-born children,” (of course, grand-children,) are excluded. But we discover nothing in this clause of the will, nor in all the clauses of the will taken together, from which can be inferred a manifest intent that all the children of his children, no matter when born, should have a portion of the estate devised. The will itself, (if we knew nothing of the testator,) furnishes abundant evidence that it was written by a man able to express whatever was his intention. If indeed a doubt could exist in regard to the intent here, the question to which it might give rise could only be made by a different class of these claimants. Those born at the time of the execution of the will, might, with some reason, insist that the intent could not be to give to any who might be born afterwards, an interest in the devise, and might refer to the expression, “ my dear grandchildren,” as not used in reference to children, who possibly may—but possibly may not—ever be in esse, and certainly not to those of whose existence, of course, he would not have any knowledge. This is the case, however, of a general devise to grand-children, as a class, and in such a case the authorities < collected in the note to which reference has already been given in 3 Brown, show the devise “ comprehends all persons answering the description at the time of the testator’s death.” A decree will be signed reversing the Chancellor’s order, and in conformity to this opinion. The costs in chancery and in this court to be a charge upon the fund. decree reversed.