McDowell v. Stiger

Reed, V. C. A general rule repeatedly stated in this court is that when there is a bequest to one person, and in case of his death to another person, the language, unless modified by some other provision in the will, will be construed to mean death of the first legatee before the arrival of the period of appointment or distribution. Beatty’s Administrator v. Montgomery, Executrix, 6 C. E. Gr. 324; Burdge v. Walling, 18 Stew. Eq. 10; Brown v. Lippincott, 4 Dick. Ch. Rep. 44. Where the limitation over, however, is in case of the first legatee’s “dying without issue,” the event of death may be referred to death without issue at any time or death before the happening of some particular event mentioned in the will, as, [128] for instance, before the distribution of the estate. The intent of a testator in the use of these- words is probably, in a great majority of instances, to limit over the gift upon the death of the first legatee without issue at any time; but the tendency of the cases in this state is to seize upon some other event, and couple the occurrence of death by relation with the occurrence of such event. And whenever between the gift absolute in form to the first legatee there is some other event upon which the payment of the gift is to occur, the subsequent limitation over upon death without issue will be held to relate to the occurrence of death without issue before the happening of the intervening event. In the present case, .there is an absolute gift of $1,000 to Jane. Intervening this absolute gift and the subsequent provision for the reverter, there is the direction as to when the $1,000 shall be paid, namely, in one year after the death of both the testator and testator’s wife. As already remarked, the trend of our decisions, in such an instance, has been to put the limitation over in opposition to the time of payment. The strength of this tendency is perceived in the following cases: Pennington v. Van Houten, 4 Halst. Ch. 272 ; Williamson v. Chamberlain, 2 Stock. 373; Wurts v. Page, 4 C. E. Gr. 365; Baldwin v. Taylor, 10 Stew. Eq. 78 ; on appeal, 11 Stew. Eq. 637; Lafoy v. Campbell, 15 Stew. Eq. 34; Patterson v. Madden, 9 Dick. Ch. Rep. 714• I am of the opinion, therefore, under the rule applied in these eases, that death in this will is referable to the time when the $1,000 should be paid over to Jane, unless there is some language to be discovered in the will which indicates an intention that the testator meant death at any time without issue. It is insisted that by the use of the word “ revert ” the testator must have contemplated the death of'Jane after she had come into, possession of the legacy. It is argued that the legacy being charged upon the real estate, did not become vested until the arrival of the time for its payment; therefore, previous to this time, there could be no interest in Jane to revert. But the provision that the legacy should “ revert to my estate ” meant no more than the language employed by the testator in Wurts v. Page, supra, which was that in case of the death of any child [129] without issue, the share of such child should “merge” in the general fund. If the testator had used the words “ in case of the death of Jane leaving no issue, then the legacy should go to a third person,” the. very same argument could be employed, for it could be then said that there would be nothing to go over until the legacy came into Jane’s possession. I do not think that the use of the word “ revert ” indicates anything in respect to the meaning of the testator upon the matter of present inquiry. If, indeed, any hint can be drawn from the whole clause in which this word occurs, it would seem to be that the testator did not have in view the death of Jane, however remote. The directions that it should fall into his estate and be distributed to his heirs according to the law of descent, would imply that he intended the fund, in the case of the death of Jane, to pass through the hands of his personal representatives in the administration of his estate, and it is not likely that he had in mind that his estate would remain unsettled during the entire life'of Jane. However, apart from the intent imputed to the testator by the rule of construction already mentioned, I see nothing in the other language used in the will, or in the argument based upon the possible intention of the testator, to leave this legacy in the family and keep it out of the hands of the husband of Jane, sufficient to indicate, with any decree of certainty, what was in the mind of the testator in respect to this matter. I am, therefore, of the opinion that when the time for payment arrived, the legacy became Jane’s absolutely, and that upon her subsequent death, the complainant acquired no interest in it. The bill should be dismissed, with costs.