By the Court, Talcott, J.
The only point argued upon this appeal was, as to the right of the children of Calvin Huson, Jr., to take the share of the sum of $10.000, directed by the fifth clause of the will of Calvin Huson, to be divided among the testator’s sons and daughters, (except Susan and Elizabeth, otherwise provided for,) in the proportions therein stated. In the same clause of the will, the testator directs certain deductions from certain shares, among others specifying that $800 are to be deducted from the share of Calvin, Jr. And the clause con^ eludes with a provision, that the sums so to be deducted shall be divided equally among the heirs of the testator, and proceeds to mention by name the heirs intended, and specifies, among others, the name of Calvin, Jr.
The will bears date in May, 1869. Attached to it is a codicil without date, duly executed, the contents of which, are not material to the question’presented in this ease.
Calvin Huson, Jr., died at Richmond, in Virginia, in October, 1861. At the time of making the will the testator had heard of the reputed death, at Richmond, of his son Calvin, Jr. The testator died in May, 1869, and his will was duly admitted .to probate in August, 1869. It, therefore, appears that Calvin Huson, Jr., had, in fact, [612]*612died, and rumors to that effect had reached the testator, not only before the death of the testator, but before the making of the will. The respondents are the infant children of Calvin Huson, Jr., and appeared by their guardian. The surrogate has decreed that they are entitled, under the said fifth clause, to that share of the $10,000 therein bequeathed to which their father .would have been entitled had he survived the testator. From this decree the executors, and some of the heirs at law of the testator, appeal.
The counsel for the respondents argues, not without force of reason and show of authority, that, under the circumstances of this ease, the words, sons and daughters, must be held to include the respondents, who are the grand-sons and grand-daughters of the- testator, as the word children, in a devise or bequest, is held to include grand-children, when necessary to carry into effect the clear intention.of the testator.
We do not think it necessary to discuss that question, in this case, as we are of the opinion that the provisions of the statute which, in certain cases, prevents the lapse of a devise or bequest by reason of the death of the devisee or legatee prior to the death of the testator, meets this case. By the Revised Statutes, it is provided: “Whenever any estate, real or personal, shall be devised or bequeathed to a child, or other descendant of the testator, and such legatee or devisee shall' die during the lifetime of the testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child, or other descendant, of the legatee or devisee, as if such legatee or devisee had survived the testator, and ■died intestate.”
It is insisted by the counsel for the appellants that, from the collocation of the words in the section, the expression “ shall die” can only be literally construed to refer to a [613]*613time intermediate the making of the will and the death of the testator.
To construe this statute with literal and technical accuracy, regardless of anything else, would abrogate it. “ Nemo est hoeres viventis ” is a familiar maxim of law. If: none can be the heir of a living person, certainly none can be his devisee or legatee. A will speaks from the death of the testator, and no person not then in existence can, strictly speaking, be either the devisee or legatee of such testator. Hence, if construed technically by its words alone, and without reference to its obvious intent and purpose, the entire provision would be rendered nugatory. Such a construction of this statute would deservedly fall within the condemnation of the principle often necessarily applied to the interpretation of statutes, “ qui haeret in littera hceeret in cortice”
Where the office of judicial interpretation of a statute is necessary, we are to consider not only the language of the legislature, but the mischief intended to be remedied. The harsh rule of the common law by which, in all cases, devises or bequests were wholly avoided where the intended devisee or legatee had died before the death of the testator, was attended, oftentimes, with unfortunate consequences, thwarting the beneficial intentions of a testator, and disappointing the just expectations of the natural claimants upon his bounty.
The testator might not have learned of the death of the proposed devisee, or through inadvertence or procrastination, have undesignedly omitted to alter his will to conform to the new circumstances. Such instances were of so frequent occurrence, and the consequences, in many instances, so unfortunate and remediless, that the legislature sought, to a certain extent, to remedy the evil. Where the proposed devisee or legatee, being a descendant of the testator, had died before the testator, leaving lineal descendants, who were, of course, equally the de[614]*614ecendants of the testator, the presumption was strong that, except from ignorance, inadvertence or accident, the will would have been so altered as to continue the designed provision in the line which had been intended. Therefore, the legislature designed to provide a renaedy in such a case, against the consequences of such ignorance, inadvertence or accident, by enacting, that in case the proposed devisee "or legatee, who had died before the testator, was a child, or" other descendant, of the testator, then the issue of such proposed devisee or legatee should take in his place. Ho reason can be perceived for any different rule, whether the death happen before or after the making of the will; either occurrence is entirely within the mischief intended to be remedied.
In fact the circumstance that the death of a proposed legatee had occurred before the making of the will, would strengthen the presumption that the name of the deceased, as "a legatee or devisee, was inserted through ignorance of the death, br by mistake. Besides, many wills aré made upon the eve of the death 'of the testator, when- the death of the beneficiary named may have been so recent that information of the fact could not have reached the testator, even though it had occurred under ordinary circumstances, and at no very remote distance, until it would be too late to remedy the accident. The construction of the statute contended for by the appellants’ counsel would call upon us to hold that a devise or legacy to a child, contained in a will made in extremis, would lapse and be wholly avoided, if the child had died one hour before the making of the will, although such death was wholly unknown to the testator. Such a discrimination between the case of a death happening before the making of the will, and one happening after, is founded in no reason, and we cannot believe it to have been within the intention of the legislature. ■
■ Considering the evident purpose and policy of the act, [615]
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court, Talcott, J.
The only point argued upon this appeal was, as to the right of the children of Calvin Huson, Jr., to take the share of the sum of $10.000, directed by the fifth clause of the will of Calvin Huson, to be divided among the testator’s sons and daughters, (except Susan and Elizabeth, otherwise provided for,) in the proportions therein stated. In the same clause of the will, the testator directs certain deductions from certain shares, among others specifying that $800 are to be deducted from the share of Calvin, Jr. And the clause con^ eludes with a provision, that the sums so to be deducted shall be divided equally among the heirs of the testator, and proceeds to mention by name the heirs intended, and specifies, among others, the name of Calvin, Jr.
The will bears date in May, 1869. Attached to it is a codicil without date, duly executed, the contents of which, are not material to the question’presented in this ease.
Calvin Huson, Jr., died at Richmond, in Virginia, in October, 1861. At the time of making the will the testator had heard of the reputed death, at Richmond, of his son Calvin, Jr. The testator died in May, 1869, and his will was duly admitted .to probate in August, 1869. It, therefore, appears that Calvin Huson, Jr., had, in fact, [612]*612died, and rumors to that effect had reached the testator, not only before the death of the testator, but before the making of the will. The respondents are the infant children of Calvin Huson, Jr., and appeared by their guardian. The surrogate has decreed that they are entitled, under the said fifth clause, to that share of the $10,000 therein bequeathed to which their father .would have been entitled had he survived the testator. From this decree the executors, and some of the heirs at law of the testator, appeal.
The counsel for the respondents argues, not without force of reason and show of authority, that, under the circumstances of this ease, the words, sons and daughters, must be held to include the respondents, who are the grand-sons and grand-daughters of the- testator, as the word children, in a devise or bequest, is held to include grand-children, when necessary to carry into effect the clear intention.of the testator.
We do not think it necessary to discuss that question, in this case, as we are of the opinion that the provisions of the statute which, in certain cases, prevents the lapse of a devise or bequest by reason of the death of the devisee or legatee prior to the death of the testator, meets this case. By the Revised Statutes, it is provided: “Whenever any estate, real or personal, shall be devised or bequeathed to a child, or other descendant of the testator, and such legatee or devisee shall' die during the lifetime of the testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child, or other descendant, of the legatee or devisee, as if such legatee or devisee had survived the testator, and ■died intestate.”
It is insisted by the counsel for the appellants that, from the collocation of the words in the section, the expression “ shall die” can only be literally construed to refer to a [613]*613time intermediate the making of the will and the death of the testator.
To construe this statute with literal and technical accuracy, regardless of anything else, would abrogate it. “ Nemo est hoeres viventis ” is a familiar maxim of law. If: none can be the heir of a living person, certainly none can be his devisee or legatee. A will speaks from the death of the testator, and no person not then in existence can, strictly speaking, be either the devisee or legatee of such testator. Hence, if construed technically by its words alone, and without reference to its obvious intent and purpose, the entire provision would be rendered nugatory. Such a construction of this statute would deservedly fall within the condemnation of the principle often necessarily applied to the interpretation of statutes, “ qui haeret in littera hceeret in cortice”
Where the office of judicial interpretation of a statute is necessary, we are to consider not only the language of the legislature, but the mischief intended to be remedied. The harsh rule of the common law by which, in all cases, devises or bequests were wholly avoided where the intended devisee or legatee had died before the death of the testator, was attended, oftentimes, with unfortunate consequences, thwarting the beneficial intentions of a testator, and disappointing the just expectations of the natural claimants upon his bounty.
The testator might not have learned of the death of the proposed devisee, or through inadvertence or procrastination, have undesignedly omitted to alter his will to conform to the new circumstances. Such instances were of so frequent occurrence, and the consequences, in many instances, so unfortunate and remediless, that the legislature sought, to a certain extent, to remedy the evil. Where the proposed devisee or legatee, being a descendant of the testator, had died before the testator, leaving lineal descendants, who were, of course, equally the de[614]*614ecendants of the testator, the presumption was strong that, except from ignorance, inadvertence or accident, the will would have been so altered as to continue the designed provision in the line which had been intended. Therefore, the legislature designed to provide a renaedy in such a case, against the consequences of such ignorance, inadvertence or accident, by enacting, that in case the proposed devisee "or legatee, who had died before the testator, was a child, or" other descendant, of the testator, then the issue of such proposed devisee or legatee should take in his place. Ho reason can be perceived for any different rule, whether the death happen before or after the making of the will; either occurrence is entirely within the mischief intended to be remedied.
In fact the circumstance that the death of a proposed legatee had occurred before the making of the will, would strengthen the presumption that the name of the deceased, as "a legatee or devisee, was inserted through ignorance of the death, br by mistake. Besides, many wills aré made upon the eve of the death 'of the testator, when- the death of the beneficiary named may have been so recent that information of the fact could not have reached the testator, even though it had occurred under ordinary circumstances, and at no very remote distance, until it would be too late to remedy the accident. The construction of the statute contended for by the appellants’ counsel would call upon us to hold that a devise or legacy to a child, contained in a will made in extremis, would lapse and be wholly avoided, if the child had died one hour before the making of the will, although such death was wholly unknown to the testator. Such a discrimination between the case of a death happening before the making of the will, and one happening after, is founded in no reason, and we cannot believe it to have been within the intention of the legislature. ■
■ Considering the evident purpose and policy of the act, [615]*615the mischief intended to be remedied, and the fact that it is a remedial statute, to be liberally construed, we are of the opinion that its meaning is to prevent the lapse of a devise, or bequest, to a descendant of the-testator, although the proposed devisee or legatee shall have died before the testator; provided such devisee or legatee shall have left lineal descendants, who shall be living at the testator’s death; and this, whether the death of the proposed devisee or legatee shall have occurred before or after the date or making of the will.
In the interpretation which we give to the statute in question, we are fortified by several recent decisions in the English chancery, upon the same precise question, presented under the 33d section of the English statute of Wills. (1 Vict. ch. 26, §'33.) The language of that section is, “ that where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed, for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.”
It will seen, from the language of this provision and the collocation of the words, that it gives rise to the same question, as to whether the expression “ shall die,” is not confined to a death intermediate the making of the will and the death of the testator, as that which is presented in this case. Upon the construction of this section in the English act, it has been several times held, that whether the death of the devisee occur before or after the making of the will, is of no importance. (See Winter v. Winter, 5 Hare, 306; Mower v. Orr, 7 id. 473; Wisden v. Wisden, 2 Sm. Giff. 396; Barkworth v. Young, 4 Brewey, 1.)
[616]*616In the case of Winter v. Winter, (supra,) Vice Chancellor Wigram, after discussing the policy and objects of the act, says: “ The construction of the act, which alone will include all the cases which the act must presumably have been intended to include, is that which makes the time of the legatee’s death unimportant, provided he died after the act came into operation, and the bequest to him is by a will made after that date; and, as far as I can see, that construction cannot possibly include any case not obviously within the purpose of the act. * * * And if the construction of the act be that the words ‘ shall die,’ mean shall die after the making of the bequest, I could not have come to my present conclusion. I think, however, the sound construction of the wills act is,' that if the bequest be made after - the act came into operation, the act will apply to" a case where a child may have diéd before the will was made, but after the act came into operation.”
In Wisden v. Wisden, Sir John Stuart, V. C., says: “I consider the words of the clause as meaning that any gift to any child, though not living at the testator’s death, is within its operation; and therefore I must construe the will as if the deceased child was alive when the will was written.”
In the case at bar it was proved, or rather admitted, that the testator had heard, before the making of the will, that Calvin Jr. had died at Eichmond. It is quite clear, nevertheless, from the express language of the clause of the will in question, that he intended to embrace Calvin Jr. among those who were to take under that clause. It was stated, on the argument, that Calvin Jr. died in a Confederate prison, as a prisoner of war. We all know the distressing uncertainty which has prevailed in regard to the ultimate fate of many of those who were thus circumstanced, and it is quite probable that the testator, while he had heard the rumor of his son’s death, was not [617]*617satisfied of its authenticity; and it is not improbable that he relied upon the provisions of the statute which we have been discussing, to effectuate equal justice between and among his heirs, in case the rumored death of Calvin Jr. should prove to be true. However that may be, the evidence that he had heard of the death was wholly immaterial. The statute wisely leaves open no door for dispute on that subject, or for the introduction of such proof. This point has also been ruled under the English statute referred to, in the case of Buckworth v. Young, (supra.)
[Fourth Department, General Term, at Syracuse,
November 13,1871.
The decree of the surrogate must be affirmed, with costs of the appeal to the respondents. .
Mullin, P. J., and Johnson and Talcott, Justices.]