Rood v. Hovey

Campbell, J. The controversy in this case turns on the question whether, under a will which created a life interest in lands, the remainder belonged to those children who were living at the death of the testator, or to those only who sur [399] vived the life tenant. Defendants are the widow and heirs of one of testator’s children who survived him, but who died during the life tenancy referred to. The will of Lansing Rood was executed February 14th, 1859, and he died the following April. All of the children living when the will was made survived him, and he had no posthumous children. He left a widow, Rhoby Rood, and five sons, — Almond B., George R., Ralph M., Asher B., and Albert G. The widow lived until March 24,1881, and never re-married. Almond B. died unmarried and without issue a few years after his father. Ralph Rood died in 1879, leaving a widow and child, who are defendants. The complainants are the other surviving sons. The will in question, after disposing of the personal property, made the following disposition of the ,real estate : “ I do give and bequeath to my wife, Rhoby Rood, all my real estate, to be used and enjoyed by, her as long as she shall remain my widow; and immediately after her decease or marriage, I give and bequeath to my son Asher B. Rood, one hundred dollars, to be paid him out of my real estate. I give and bequeath all the rest, residue, and remainder of my real and personal estate to my children now living, or who may be at the time of her decease or marriage, to be divided equally between them, share and share alike.” As there was no change in his family before his death there is no difficulty in determining who were meant by children “now living,” and there was no child not then living. But two of the children then living afterwards died, and the question now raised is whether by their death their shares went to their heirs at law subject to the widow’s tenure, or whether the estate in remainder was contingent and only finally vested in the three sons who survived the widow. There can be no doubt that the policy of our statutes is to favor vested estates in preference to contingent, and that estates given to particular devisees shall always go to their heirs, unless a different purpose is apparent. The Legislature has endeavored in every possible way to prevent disinheritance of descendants unless required by the distinct pur [400] pose expressed by the testator. Comp. L. §§ 4346, 4347, 4349. It is also well settled that, unless an intention appears to the contrary, the will shall operate from the death of the testator, and estates vest at that time. Toms v. Williams 41 Mich. 552; Eberts v. Eberts 42 Mich. 404. It is a further rule that needs no authority, that clear language which conforms to the general beneficial policy of the law should not be strained for purposes which are unjust and unreasonable. We do not think it proper to go into any extended discussion of testamentary law, because we have not been able to discover the least ambiguity in the language of this will. It says as plainly as words can make it that all of his children then living shall share' in his estate not otherwise disposed ©f; that is, in all but the widow’s interest. Tf there had been no other words no one could dispute that their interest was vested. The remaining words or who may be at the time of her decease ” might very well apply to posthumous children, but the form of the expression is not such as to indicate an intent to qualify the former language as to living children. The charge on the estate in favor of his son Asher, who was no more likely to survive than the rest, is a slight indication in the same direction. There is nothing in the rest of the will favoring the idea that he had any purpose of disinheriting any of the offspring of his children. No amount of reasoning can throw much light on the meaning of the will. In our opinion the language used conforms to the general purposes of the law, and is best interpreted by the general rules before referred to. We think that Ttalph Hood took a vested interest, and that defendants are entitled to succeed to it. The decree below must be reversed and a decree rendered in favor of defendants, with costs of both courts. The other Justices concurred.