Barrett v. Barrett

47 App. D.C. 341, 1918 U.S. App. LEXIS 2416

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 4, 1918
• Docket: No. 3116
• Status: Published

Opinion

Mr. Justice Bobb

delivered the opinion of the Court:

Wilder item 1 of the will, which item is free from all ambiguity, the testator provided for his brothers and sisters, and, for reasons satisfactory to him, made the same provision for the daughter of a deceased sister. It is of no consequence that there may have been other nieces or nephews who then stood in the same relation to him as this legatee, since it was for him to say whether they should he recipients of his bounty. Having made specific provision in item 1 for his brothers and sisters and the daughter of a deceased sister, the testator in item 2 provided that the residuum of his estate should he divided among 1ns other nieces and nephews. Realizing that all of his brothers and si-ders Plight not survive him, the testator in item 3 undertook to dispose of the bequests to any who should not. The. contention of appellant necessitates the division of item 3, which is- hi one senlenee, into two parts, so that the words ‘‘lie” or ‘•slu” in the first pari shall refer to brother or sister, while the same words in the second part shall refer to nieces and nephews. We perceive no justification for resorting to such a strained construction. The item must be read as intended to be read: that is, as a wliolc and in connection with the other provisions of the will. AAIien so read the language is reasonably free from ambiguity; for it is provided that if a brother or sister predeceases the testator “the share lie or she would have received” shall go-“to my nephews and nieces” (not including Déla P. .Alussey, who was made to represent her mother in item 1); “and if ho or she (that is, a deceased brother or sister, and not “nephews and nieces”) “shall not leave issue surviving me, his or her share shall go to the others of my nephews and nieces or their children surviving me.” We entertain no doubt that it was the intent of the testator in this item to give the children of any deceased brother or sister mentioned in item 1 the same status that was given Déla P. Alussey; in other words, he allowed such children to take the share of a deceased parent. If a deceased brother or sister should leave no children surviving the testator, then the share of that brother or sister was to he divided among the other surviving nephews and nieces or their children. Tn item 4 the testator provides f. r the contingency of the prior decease of Déla P. Alussey. Items 3 and 4, therefore, both refer back to item 1 and cover the contingencies that were in testator’s mind.

It will he observed that the bequests in item 1 are to surviving brothers and sisters and to the daughter of a deceased sister. There is no provision that, in the event any legatee should fail to survive the testator, his or her share should go-to the heirs of that legatee; and, reading the item in connection with what follows, it is clear that it was the intent of the testator that it should not; for later on provision is made for such a contingency. In other words, the bequests in item 1 are personal bequests. In item 2, however, Avhich deals with the residuum of the estate, the bequests are to the nephews and nieces there mentioned “and their heirs forever, to he divided between them share and share alike.” In item 3 testator provides that the share of any deceased brother or sister mentioned in item 1 shall go to his or her children, and if there, are no such children “then to the others of my nephews and nieces or their children surviving me.” That this was the intent of the testator is still further apparent when item 4 is read; for he there provides for the contingency of the prior decease of Dela P. Mussey. vrho in item 1 was given the same status as a surviving brother or sister. If she predeceased the testator her bequest was to go not to other nephews and nieces, but “to her children, if any;” and, if she died without children, then to the other nephews and nieces. In item 4, therefore, the testator carries out the scheme of item 3 and makes his will complete and harmonious.

The decree is affirmed, with costs. A ffirmed.