Jamison v. Hay

Wagnee,, Judge, delivered tbe opinion of tbe court. William II. Bell, tbe testator, died about tbe 20tb day of December,.1865, without issue and unmarried, seized and possessed of both real estate and personal property. By bis will, after tbe bequest of a number of pecuniary legacies, be proceeded to dispose of tbe residue of his estate to various persons in certain specified portions. By tbe tenth clause be devises the one undivided eighth of said residue as follows : 10. “ It is my will and desire, and I hereby give, devise, and bequeath unto the sons and daughters of my deceased uncle, William Sheppard (Col.), one undivided eighth of said balance of my estate of every nature and kind whatsoever.” Col. William Sheppard died in 1822, in North Carolina, where he bad always resided, leaving eight children, three sons and five daughters. All of these children, with the exception of Susan J. Hay, the defendant, wore dead at the making of the will, and, with one exception, all left children. Col. Sheppard wras the benefactor and friend of the testator in his early life, and, on the trial, evidence was adduced showing that all the sons and daughters named in the will were known to the testator to bo dead, save two, besides the defendant. The testator, at the time of preparing the notes for the drafting of his will, said that he wished to give a portion of his property to his uncle Sheppard’s representatives or children. The special term of the Circuit Court, in its construction of the will, decided that the defendant, Susan J. Hay, was not entitled to the whole of the share provided for in the tenth clause, as survivor, but that the other defendants, the descendants of the ■children of William Sheppard, were entitled to take the share which their ancestors, if living, would be entitled to. On appeal, the general term reversed this decision, and adjudged and declared that the said Susap J. Hay was entitled to the whole of the share. The rule is undoubtedly established as a principle of common-law construction, that a devise to a class of persons takos effect in favor of those who constitute the class at the death of the testa [553] tor, unless a contrary intent can be inferred from some particular language of the will, or from such extrinsic facts as may be entitled to consideration in construing its provisions. In other words, where a bequest or devise is made to a class of persons subject to fluctuation by increase or diminution of its number, in consequence of future births or deaths, and the time of payment or distribution of the fund is fixed at a subsequent period, the entire interest vests in such persons only as at that time-fall within the description of persons constituting such class. Jarman, in his work on wills, speaking of this subject, says: “Where, however, the devise or bequest embraces a fluctuating class of persons who, by the rules of construction, are to be ascertained at>the death of the testator, or at a subsequent period, the decease of any such persons during the testator’s life will occasion no lapse or hiatus in the disposition, even though the devisees or legatees are made tenants in4 common; since members of the class ante-cedently dying are not actual objects of gift. Thus, if property be given simply to the children, or to the brothers or sisters of A., equally to be divided between them, the entire subject of gift will vest in any one child, brother or sister, or any larger number of these objects surviving the testator, without regard to previous deaths; and the rule is the same where the gift is to the children of a person actually dead at the date'of the will, in which case, it is to be observed, there is this peculiarity: that the class is susceptible of- fluctuation only by diminution and not by increase, the possibility of any addition by future births being precluded by the death of the parent.” . (Jarm. Wills, 295-6.) But this doctrine concerning legacies given to classes of persons rests on the intention of the testator as manifested by his will— his intention in this, as in all other cases, if it be not repugnant to law, being the guide of courts in the construction of a will. Conceding the rule established by the authorities to be as above stated, the question is whether, by our statute, and the circumstances connected with this will, the descendants of the deceased sons and daughters of Col. Sheppard are not entitled to take a proportionate part. The statute concerning wills provides that ‘ ‘ when any estate [554] shall bo devised to any child, grandchild, or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or .personal, as such devisee would have done in ease he had survived the testator.” (2 TVagn. Stat. 1366, § 11.) This section of the statute was discussed and construed in the case of Guitar v. Gordon, 17 Mo. 408. There the plaintiffs were the children of Emily Guitar, who was the daughter of David Gordon, the testator. Gordon had a large family of sons and daughters, all of whom survived him except Emily Guitar, and she had been dead about a year before the making of the will. The testator named all his children in the will, and gave legacies to some of them, and recited the sums he had given to the others by way of advancement. Emily Guitar was mentioned in the will as well as the other children, and, though dead at the time, no mention wras made of her death, nor were her children named as provided for. The testator recited in his will that “ I have heretofore given to my daughter Emily Guitar, in property, the sum of nine hundred and seven dollars, by way of advancement.” After those specific devises, the testator declared: “ there will then remain a large amount undisposed of, which I direct shall be distributed among all my children, share and share alike, except my son James M. Gordon,” who had already been provided for. Here it will be perceived that no devise or bequest was made to Emily Guitar, except in the residuary clause of the will, and then the gift was made to the children as a class. This court, after mature consideration, held that there was no intestacy as to Emily, for silo was expressly named in the will, and that, under the section heretofore quoted, although she was named as a class and dead at the time the will was executed, her children were entitled to take the part that she would have had if living. The statute contemplates that among children and relatives, if part of them be dead and part living, the children of those dead shall take the place of the deceased parent. The testator, Bell, though knowing some of Hie sons and daughters of his uncle to be dead, and not being formed as of the others, evi [555] dently regarded them as though they were all alive. Their deaths were in no manner alluded to, and, considering all the attendant circumstances, I have no hesitation in arriving at the conclusion that his object was that the children of those deceased should share his bounty. From this conclusion it necessarily results that the judgment at general term must be reversed, and that of the special term affirmed. The other judges concur.