Rodriguez v. Vivoni

Mr. Justice Holmes delivered the opinion of the court. This is a bill for the partition of real estate in which the female plaintiff claims one undivided eighth as heir to her daughter Felipa Benicia, who died an infant without issue. This df-:ghter got her title under the will of Thomas José Ramirez, and the question is whether, in the event which happened, her share went to her mother by descent or to her fellow devisees by the terms of the will. The other devisees all were living at her death. The case was heard upon a plea setting up the foregoing facts, together with the will, and the bill was dismissed. Thereupon the plaintiffs appealed to this court. *376 The material clause of the will is as follows: “Trece. — Et remanente de mis bienes, derechos y acciones lo lego con cahdad de fideicomiso y que acrezcan las demas, caso de fallecimiento sin sucesión legitima, .por iguales partes, a mis sobrinas' Doña Cornelia y Doña Antonia Martínez, Doña Monserrate, Doña Obdulia, Doña Encarnación, Doñá Angela y Doña Concesión Ramirez de Arellano y Felipa Benicia mi hija de crianza,” etc. We vary slightly the translation in the record. “The remainder of my goods, rights and actions I bequeath in the character of fideicommissum and that the other [shares] may [profit ’by] accretion, in case of death without sucesión legitima, by equal parts to my nieces [named] and Felipa Benicia my foster child, who shall adopt my surname,” with appointment of a guardian for the last, a provision for her education, and a request that when that is finished she return to live with the said nieces. It is agreed that it is possible for “sucesión legitima” to mean either issue or. lawful heirs. If it means the latter, the mother inherited, as she was the lawful heir. If it means the former, then, by the terms of the will, Felipa Benicia’s share went to the testator’s nieces when she died. It seems to us too plain to need extended elucidation that “ sucesión legitima” here means issue. The argument on the other- side that the purpose is merely to prevent an escheat by making the nieces and Filipa Benicia reciprocal successors, to impose a fetter on free alienation and to enhance thé dowry of the nieces, strikes us as fanciful. The natural object of this fideicommissary substitution is that which is said to be its object, to secure accretion among the shares. But that purpose would pretty nearly vanish into thin air if death without heirs'were the event in view. For each of the "nieces being heir to all the .others, accretion among, them would be excluded. It is argued, to be sure, that they might repudiate- the inheritance and then claim under the will, if any of the nieces died heavily in debt. Whether- this would be true by Spanish law we need not inquire. For such remote explanations must be rejected when *377 the will offers a different and more obvious one upon its face. And while if is pressed that substitutions are strictly construed in favor of the first taker, we do not understand that or any other rule of construction to requires perversion of language, or to govern a case where the second taker stands on an equal footing with the first in the testator’s mind, with equal mutual chances, and when the .plainly expressed- purpose is to create an artificial class, with cross limitations in case of death without a child. A suggestion is made by an afterthought, in a. brief filed since the argument, that the testator could not exclude the mother of Felipa from her right, as necessary or forced heir, to two-thirds of Felipa’s share. The suggestion comes too late. No such claim was set up in the bill, or, so far as appears, in the court below. ' Therefore we shall not consider at length whether, in case of a pure gratuity to one to whom the testator was under no legal obligation, the Spanish law entitled a forced heir to claim against the words of a gift like this. The texts cited are no.t sufficient to establish the proposition, and the contrary seems to be shown by Ley 10, Tit. 4, Part. 6, and note 13, Madrid ed. 1848. See also 4 Escriche, 1051, 1052, sub. v. Substitución Fideicomisaria, ad fin. On the whole case the plaintiffs must abide by the construction and the law in which, it would' seem from the bill, they have acquiesced for thirty years. Decree affirmed.