Bell v. Smalley

Van Fleet, V. C. The bill in this case was filed for the purpose of having the meaning of two provisions of the will of Charlotte Bell, deceased, judicially settled. The testatrix died in May, 1860. Her will was admitted to probate in April, 1867. By her will the testatrix gave the whole residue of her estate, after the payment of her debts, funeral and testamentary expenses, to her executors, with direction to invest the same, and then, in the language of the will “ To pay the interest and income thereof from time to time, as the same shall be received, to my son, Francis E., during his lifetime, and in case his wife, Hannah E., should survive him, then to her, during her widowhood, in like manner, one-half of the said interest and income; the remaining one-half to be put at interest and kept invested at interest, with the interest thereon from time to time accruing, and at the decease of my said son Francis, or in case his said wife should survive him, at her remarriage or decease, then to pay said principal sum, with the increase thereof, and all arrears of interest or income.remaining unexpended, to my other then surviving children and to — 480 — the heirs of any deceased child, in equal shares, the heirs of any deceased child to take their parent’s share, in equal parts, if there be more than one." Francis E. Bell, the life-tenant of the whole fund, died in November, 1888, leaving one child, Amos S. Bell. Hannah E. Bell, the person who was the wife of Francis E. when the testatrix died, also survived Francis E., but she was not his wife at the time of his death. She was divorced from him by a decree made by this court on the 9th day of June, 1883, at her instance, for his fault. The decree was absolute, divorcing the parties from the bond of matrimony, dissolving the,marriage between them and freeing and discharging each from the obligations thereof. Out of this condition of facts two questions arise: First. Is Hannah E. Bell, notwithstanding that she has, since the date of the decree of'-‘divorce, been a feme sole, and is not now and has never been the widow of. Francis E. Bell, deceased, nevertheless entitled to one-half of the income of the fund set apart for the ase of Francis E. during his life? And, second, will Amos S. Bell, the son of Francis E., be entitled, by the terms of the — 481 — bequest, to a share of the fund in question when it is distributed ? The solution of the first question depends entirely upon whether it appears, on a careful consideration of all the pertinent provisions of the will, that the testatrix meant that Hannah should only take in case she became the widow of Francis, and only for the period she remained his widow, and not otherwise. If the gift is made to her as an individual, regardless of her matrimonial status or character, the testatrix meaning that she should take the subject of the gift even if she never became the widow of Francis, then it is clear that the fund must be held for her benefit, and she must be paid one-half of its income. But i£ on the contrary, the gift is conditional, the meaning of the testatrix being that Hannah should have no right to the subject of the gift unless she became the widow of Francis, then it is equally clear that she has no right to any part of the fund in question. That the gift is of the latter kind seems to me to be beyond all question. The words of gift are, “And in case his wife, Hannah E., should survive him, then to her, during her widowhood, in like manner, one-half of the said interest and — 482 — income.” The period for which the gift is to continue in force is during her widowhood. At her remarriage, or on her death, the will says the principal shall be distributed. So that it is perfectly clear that the testatrix meant that Hannah should only take while she remained the widow of Francis, and it necessarily follows that if her status or condition became such, prior to the death of Francis, that she did not become a widow by his death, she has not now and never can have the character in which alone she can take. By the decree of divorce she became a feme sole, and could, the next day after that decree was pronounced, have lawfully contracted a new marriage. Suppose she had done so, or suppose she had remarried at any time prior to Francis’s death, might she not, in that state of affairs, have asserted, on Francis’s death, just as good a claim to the subject of the gift as she can now ? The date fixed by the will for the distribution of the fund, in case Francis’s wife survived him, was the remarriage or the death of his widow. The remarriage meant was obviously one occurring after the death of Francis, and not before. If, therefore, Hannah had remarried after the divorce and before the death of Francis, it might have been contended, — 483 — ■with just as much force of reason as it can now, that she was •entitled to the subject of the gift, and would continue to be so •entitled until she should, at some time subsequent to Francis’s •death, contract another marriage. The meaning of the testatrix is, in my judgment, clear and free from doubt. She has told what she meant in plain and simple language, and what she said was this: That in case her son’s wife, Hannah, survived her husband, Hannah should, during her widowhood, have one-half of the income of a certain fund, and that on Hannah’s remarriage •or death her right should cease, and the fund should be distributed. How, although Hannah survived the man who was her husband, she was not his wife when he died, but a feme sole, and consequently did not become a widow by his death, and is not now and can never be in the state or condition which, by the terms of the will, she must be in to qualify her to take the gift. This view conforms to precedent. In Bullock v. Zilley, Sax. 489, it appeared that the testator directed a sum of money to be put at interest, and the interest to be paid annually to the support and maintenance of his nephew, Thomas Bullock, and — 484 — Rebecca, his wife, and their children. Thomas and Rebecca were divorced after the testator’s death. After the divorce the-executor refused to pay Rebecca any part of the interest, and she thereupon brought suit in this court. Chancellor Yroom, in deciding the case on demurrer, said, that if the words “ his wife ” were simply used as words of description to designate the legatee, Rebecca would be entitled to take, but if they were used to indicate the capacity or character in which alone she could take, then, inasmuch as she had ceased to be the wife of Thomas, she would not be entitled to take. He was of opinion that they w'ere used simply to designate the legatee, and he therefore held that her suit was well brought. In my judgment, Hannah is not entitled to anything under the will, and I am also of opinion that the fund set apart for the use .of Francis, during his life, became distributable on his death. The other question relates to the distribution of the fund, and may be properly stated as follows: Is Amos S., the only child of the testatrix’s son Francis, entitled to a share of the fund ? The testatrix directed that the fund should be distributed either on-the death of Francis, or in case his wife Hannah survived him-, at her remarriage or on her death; and in directing to whom distribution should be made, she said: “ To my other then surviving children and to the heirs of any deceased child, in.equal shares, the heirs of any deceased child to take their parent’s share, in equal parts, if there be more than one.” Now, as I understand this direction, it embraces all the testatrix’s children who shall survive to the time when the fund becomes distributable, and also the issue of any who should die before that time. Francis was necessarily excluded from the distribution, because no division was to be made until his death, but in providing that the issue of a deceased child shall succeed to its parent’s share, it will be observed that the testatrix employs the most comprehensive language. Her words are, “ and to the heirs of any deceased child.” Francis is a deceased child, and Amos is his son. The words just quoted are broad enough to embrace Amos. He ought not to be excluded, except such appears to have been the intention of the testatrix. No such intention ap — 485 — pears. On the contrary, it appears that the testatrix wanted the ■issue of any deceaséd child 'to take its parent’s share. The clause immediátely preceding the_ one above quoted excluded Francis. If the testatrix had intended to exclude the issue of Francis also, she would naturally have said so in the succeeding clause, thus making the whole sentence read in this wise: “To my ■other then surviving children and to the heirs of any other de•ceased child.” Unless the word other be interpolated by construction, it is not possible, as it seems to me, to read this sentence so as to exclude Amos. I know of nothing which would justify such a construction. To adopt'it, 1 think, would be more likely to frustrate than to give effect to the intention of ■.the testatrix.