Cox v. Handy

Bryan, J., delivered the opinion of the Court. William W. Handy by his will devised and bequeathed certain real and personal property to his wife for life, and also made devises and bequests to his children. — 121 — His will contained the following clause : “ It is my will that after the death of my wife, Mary Ann Handy, that all the property devised to her for life, except the house and lot hereinbefore devised to my son, Thomas P. Handy, after her death, and which is situate on St. Paul street, and the one thousand dollars of Baltimore City Stock devised to my said wife, which after her death is to be vested and go to my son Thomas, shall be sold if necessary" for equal partition, or if the same can be accomplished without a sale, shall be divided amongst mj" children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled.” The construction of this clause is the object of the present suit. If the words referring to the “child or children of any deceased child” had been omitted, we suppose that the meaning of the clause would have been quite clear. In a book of great authority, a very simple and satisfactory test is given by which a vested estate may be known. It is thus stated: “Now, when a remainder is limited to a person in esse and ascertained, to take effect, by words of express limitation, on the determination of the preceding particular estate, this remainder is most clearly and unquestionably vested. The person to whom the remainder is limited may, in respect of the limitation of his estate, assert a right to the possession, as soon as the possession shall fall. ” 1 Preston on Estates, 10. In the reports of decided cases, we may" find paraphrases and amplifications of the language in which this rule is expressed. For instance in Moore vs. Lyons, 25 Wendell, 144, in the Court of Errors, the Chancellor said: “Eor where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the — 122 — remainderman is in esse and ascertained ; provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession.” And this statement of the rule has been highly approved in judicial opinions; we may mention a case in the Supreme Court of Massachusetts, and two in the Supreme Court of the United States : Blanchard vs. Blanchard, et al. , 1 Allen, 227 ; Doe, Lessee of Poor vs. Considine, 6 Wallace, 476; McArthur vs. Scott, 113 U. S., 379. The testator mentions his children by name in the previous portions of his will, and by this clause directs an equal partition of the property in question among them at the death of his wife ; it is obvious that the sale which he mentions was only intended as a method of making an equal division. It is well settled that a gift to children to take effect in possession immediately on the testator’s decease, comprehends the children living at the testator’s death, and those only. Jarman on Wills, chapter 30, section 4. And it is also settled that where a particular estate is given, and there is a gift over do children, this gift will embrace the children living at the death of the testator, and all who may subsequently come into existence before the period of distribution. Jarman on Wills, chapter 30, section 5. In the present case as the gift is to the children of the testator, of course, none of the objects of this clause of the will could come into existence after his death. It is clear then that the devise and bequest (if the part relating to the children of the testator’s children be omitted) is a gift to persons in existence to take effect in possession on the death of the wife; an event which was sure to happen. There would then be no element whatever of contingency about it. But we must inquire what influence these omitted words have on the construction of this clause. The child of a deceased child is to take the share to which his parent, if living, would have — 123 — been entitled. Of course, this must mean if living when the shares are to be distributed ; that is to say, at the death of the tenant for life. There is no other point of time to which the living can rationally be referred. Most certainly not to the death of the testator, because if the parent were not living at that, time, he would not be comprehended in the clause at all, and would not therefore be entitled to any share for his child to take. And this reference to the death of the tenant for life is in accordance with the established construction in like cases. Jarman on Wills, chapter 48, section 2: Harvey vs. McLaughlin, 1 Price, 264, (cited with approbation by this Court in Engel vs. State, use of Geiger, 65 Md., 545.) Rut this point of time does not determine whether the gifts to the parents were vested or contingent. Expressions such as those used in this clause have been associated in wills with other language complicated and involved in great variety : and the Courts have declared their effect, according as they have been able to ascertain the intention of the testator in each particular case. The rules of construction which have been established are necessarily modified by the differences in the language of the wills, and the state of things to which it was applied. These rules are intended to aid the Courts in discovering the testator’s meaning ; but we fear that there is some ground for the complaint of an eminent Judge that on many occasions the testator’s intention has been defeated by the application of rules which were intended to effectuate it. We will endeavor to escape this reproach in the present case. The clause declares that the child or children of a deceased child shall take the parent’s portion ; but it does not state what is to become of the portion of a deceased child in case he should die without children. Is the estate which was granted to him by the previous terms of the clause to be divested? if so, to whom is it given? The words used — 124 — do not state that it is to he divested, and. given to some one else. If they receive this construction, it must be by virtue of some imperative rule. Let us see if there is any such rule. It will be observed that the meaning of the language is not embarrassed by being associated with doubtful or ambiguous provisions, and that the question is presented rather harely and nakedly. In Strother vs. Dutton, 1 De Gex & Jones, 675, a testator made a bequest to his daughter and her husband, and at the death of the longer liver it was to he distributed equally among her children, and it was then stated, <£in case any lawful children are living from son or daughter being dead, the issue of their marriage, that such child or children, shall he equally entitled to the part or share their parents would be entitled to if they had been living.” The daughter had several children, .four of whom died in her life-time without issue; it was held that their shares vested in them at their hirtli and were not divested ; for the gift in favor of the issue of the children who had issue,- did not affect the shares of the children who died without leaving issue. In Mervey vs. McLaughlin, 1 Price, 264, (already cited) there was a bequest to a legatee for life, and after her death, to her three children in equal shares, “and in case of the death of either of them, the share of such as might die to go to and belong to the children, or child, if but one, of the child so dying.” Two of the children having died in thel ife-time of the testatrix, one leaving children, and the other without children, the Court held that the intention of the testatrix was to substitute the children of those dying in the life-time of the legatee for life in the place of their parents, and that the parents took vested interests on the death of the testatrix, subject to be divested in favor of their children on their death in the life-time of the legatee for life leaving children ; and as to the child who died without children the Court — 125 — held that she took her share absolutely and that at her death, it devolved on her personal representatives. To the same effect are Baldwin vs. Rogers, 3 De Gex, Macnaghton & Gordon, 649 ; Etches vs. Etches, 3 Drewry, 447 ; In Re Bennett’s Trusts, 3 Kay & Johnson, 280, and many other cases. In McArthur vs. Scott, 113 U. S., 381, the Supreme Court of the United States considering a direction of the same kind in a will, said its only effect was to divest the share of any deceased legatee leaving issue, and to vest it in such issue. In view of these authorities, we think that we are justified in holding that a share of the property vested in each of the children of Wm. W. Handy who survived him, but if any such child should leave children at his death, his share was divested in favor of his children ; and that it was not divested by the death of the child in the life-time of the tenant for life without leaving children. The clause of the will in question disposed of both real and personal property; we suppose that the testator’s purpose was the same in regard to both descriptions of property. In the cases of Engel vs. State, use of Geiger, 65 Md., 539, and Straus vs. Rost, 67 Md., 465, it was decided on bequests and devises similar to the one in this case that the child of a deceased child took a vested estate in the share which his parent would have taken if he had been living at the period of distribution. In Engel’s Ga.se the Court said that it was unmistakably clear that the testator intended to substitute the child of the legatee who might die, in the place of the parent. But the rights of a child of the testator u'ho might die and leave no children were not considered, and were not decided in either of these cases. Jesse T. Handy, one of the sons, survived the testator and died without children before the life tenant. By his last will he gave all his property to his wife for life, with power to dispose of it at her death. She also died — 126 — before the life tenant, having disposed of this property by will. We understand that no question is made about the devolution of the property under these wills. Theyw'o forma decree of the Court below not being in agreement with our views must he reversed, and the cause remanded in order that a decree may be passed in accordance with this opinion. Decree reversed, with costs, and cause remanded. (Decided 22nd June, 1893.) A motion was made on the 10th of July, 1898, in behalf of Julia J. Handy, for a re-hearing of the foregoing case. The motion was overruled. Bryan, J., delivered the opinion of the Court. A motion for a re-argument has been filed in behalf of Julia J. Handy. She is the only child of Charles Handy, a son of the testator, who died in the life-time of his father. The motion is made on the supposition that we decided that she was not entitled to participate in the division of that portion of her grandfather’s estate which was left to his widow for life. In the hill of complaint filed in this case, it is alleged that she and certain other descendants of the testator are the only persons entitled to an interest in this property. It was not denied in the pleadings or in the argument that she was entitled to an interest in the property; but in one of the answers it was maintained that the representatives of Jesse T. Handy, a son of the testator who survived him, and who died in the life-time of the widow were also entitled to a share. And this was the controversy in the case. We decided this controversy; but had no occasion to consider the rights of Julia J. Handy, as they were not drawn in question. — 127 — Some of the expressions in the opinion would militate against her claims, if they were separated from the context, and considered without reference to the subject-matter to which they were applied. But they were intended to be understood as applying to the interest of Jesse T. Handy, which was the sole subject of discussion. In the investigation of the question we cited certain general rules of construction, which are frequently of great use in ascertaining the meaning of a testator when it is doubtful, but are never to be applied so as to defeat his intention when it is clear. The property at the death of the widow was to he divided among the testator’s children; “the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled.” A share of the property vested in each of the children who were living at the time of his death, and if any child died before the period of distribution leaving children, they were substituted in his place; his share however, was not divested if he left no children, but it went to his representatives. Jesse T. Handy was in this latter category. Julia J. Handy’s father died before the testator made his will; and he, therefore, had no interest in the property. But, nevertheless, the testator’s intention was clear that she should take a child’s part. The child of any deceased child was, by the terms of the will, to take the portion to which the parent would have been entitled, if living at the time when the division was appointed to take place. It made no difference whether the death occurred in the life-time of the testator or after his decease; the mere fact that the parent was dead at the time of the expiration of the widow’s life estate was sufficient to complete his child’s title. If the deceased parent survived the testator, the child took by substitution in his place; but if he died in the life-time of the testator, the child’s title was by direct and original gift. — 128 — (Decided 11th October, 1893.) We see no necessity for a re-argument and shall therefore overrule the motion. Motion overruled as unnecessary.