Nichols v. Denny

Harris, J., delivered the opinion of the court. This cause is before us upon appeals, by all the parties, from the judgment and decree of the court below. The record shows, that Philip R. Nichols, for himself and in behalf of his children, George D., Charles M., James M., and Richard M. Nichols, minors, filed a petition in the Court of Probates of Adams county, against Prances A. Denny, Catharine Minor, and her husband John Minor, and James Surget, citizens of this State, and William B. L. Denny, David A. Denny, Prances Gillespie, and her husband, James Gillespie, non-residents, defendants, praying the ascertainment and allotment to the said petitioners, of the legal portions of the estate of William B. Lintot and Charles M. Nichols, deceased. The petition shows that the said Charles M. Nichols died on the 11th of November, 1855, and the said William B. Lintot died long before, to wit, in the year 1836, both leaving wills. The main questions presented for our determination arise out of the construction of these wills. The first questions to be considered grow out of the following clause of the will of William B. Lintot, deceased : “ My personal property to remain with my dear mother during her natural lifetime, then one-half of the balance to be given to my dear step-brothers, Philip and Charles Nichols, the balance to be equally divided between my nephews and nieces Surgets' and Dennys.” [64] It is insisted, under this clause, that upon the death of Charles M. Nichols, his brother Philip became entitled to the legacy bequeathed to him and the said Charles jointly, by right of survivor-ship ; that the statute of this State, abolishing the right of survi-vorship incident to joint estates at common law, applies only to real estate, and has no application to personal property. At common law, the interest of a joint tenant was not devisable. 4 Kent, 898-9, & 604 (9th edit.). The jus acreseendi, attached instantly on the death of the devisor, and the law favored joint tenancy. Or, according to Lord Coke, there is priority, even in an instant of time, in favor of the survivor. Coke Litt. 185, b; 1 Black R. 476; 4 Kent, 399-604. By the Act of March 4th, 1803, re-enacted in 1822, sect. 12, Hutch. Code, p. 614, the right of survivorship in land was abolished. It was, therefore, subject to descent, devise, and distribution, as estates held in common, according to the provisions of the Act of 1821. Hutch. Code, p. 623, s. 50. And by the 52d sect, of the same act, personal estate is placed on the same footing as real estate, as to descent and distribution. And by the Act of June 30th, 1822, provision is made for its division “ in the same manner, and subject to the same regulations, as are prescribed for the partition of real estate.” It seems, therefore, to result, that there can be no survivorship in personal, any more than real property. Philip Nichols is not therefore entitled to the whole of the legacy bequeathed to him and his brother Charles, by this clause of the will of Lintot. It is next insisted, under this clause of the will, that the “ balance to be- equally divided between my nephews and nieces, Surgets and Dennys,” means, that the said nephews and nieces are to take as classes, per stirpes, and not per capita. In the absence of any intention to the contrary on the face of the will, the rule is, that “ where a gift is to the children of several persons, whether it be to the children of A. and B., or to the children of A. and to the children of B., they take per capita, not per stirpes.” 2 Jarman on Wills, 111; Weld v. Bradley, 2 Vermont, 705; Lugar v. Harmar, 1 Cox R. 250; 10 Ves. Jr. 166; 8 Ves. Jr. 604; 1 Beav. 607; Ex parte Leith. 1 Hill Ch. 153. [65] It is again insisted, that under this clause of the wil], that only the nephews and nieces living at the death of the testator were entitled to share his bounty; and that those born afterwards, and prior to the determination of his mother’s life estate, are not so entitled. The rule, however, is well settled to the contrary, and is thus stated by Mr. Jarman, in his Treatise on Wills, 2d vol. p. 74: “ That where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution.” The next question presented, arises under the will of Charles M. Nichols, as follows : “ Item. The balance of my property, both real and personal, I give to my mother during her natural life, and after her death it is to be divided equally between the children of my brother, Philip R. Nichols, and my sister, Fanny A. Denny.” Anri it is urged, that the testator intended by this provision that the estate so devised should vest in the children as a class, only one-half to be equally divided among them, and the other half to vest in his sister, Mrs. Denny. We think no such intention legitimately appears in the remotest degree, and the rule, in the absence of all indication of such intention is, that the beneficiaries are to take per capita. 2 Jarman on Wills, p. 111. The children of Philip R. Nichols and Mrs. Denny are placed on an equal footing, each taking an equal part, under this clause of the will. Let the decree be reversed, and cause remanded for further proceedings, in accordance with this opinion.