Dunlap v. Shreve's ex'rs

63 Ky. 334, 2 Duv. 334, 1865 Ky. LEXIS 81

Opinions

JUDGE ROBERTSON

delivered the opinion of the court-:

The appellant, an infant and only child of Martha.Dunlap, who was one of five children of Catherine Boyce, brought this suit in equity against the appellees as executors of L. L. Shreve, asserting a claim as devisee of a portion of a large estate disposed of by his will. The chancellor having dismissed her petition, this appeal presents that judgment for revision.

The testator died childless, but left collateral kindred of different degrees of propinquity, among most of whom, and also strangers, he distributed his estate. The mother of the appellant, who was his sister, had died, leaving five children, two of whom, William and Martha, had also died before the publication of the will — William leaving an only child, Belle Dunlap; and Martha leaving an only child, the infant appellant, then about ten years old.

The provision of the will, under which the appellant claims, disposes of a large residual estate in the following manner, so far as she is concerned: “ Two sevenths thereof to Mrs. Ann Martin, my half sister, and two sevenths thereof to the children of Mrs. Catherine Boyce, my deceased sister — her granddaughter, Mrs. Dunlap, wife of Col. H. C. Dunlap, to take the share which her father, William Boyce, would take, if living.”

It does not appear that 'the testator knew that his neice, Martha, had left an infant child who ivas still living.

The counsel for the appellant relies, for the maintenance of her claim, on’ the constructive intention of the testator, as well as on the object and legal effect of the following statutory provisions:

“ When a devise is made to several as a class, or as tenants in common, or joint tenants, and one or more of the devisees shall die before the testator, and another, or others, shall survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devisor.” (1st Stant. Rev. Stat.,pp. 1-2.)

“ If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue, who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.” (Ibid,p. 461.)

The counsel for the appellees insist that his mother, being dead at the time of publication, the appellant was not one of the class of devisees contemplated by the statute concerning legatees ox* devisees as a class — and also dexxies that the will indicates any intention to include her in the testamentary class. And this is the problem to be solved by this court.

The evident object of the enactment first quoted was to prevent the survivorship, and of the last, the lapse of the common law — and of both to make a radical change, deemed more consonant with the general intention of testators.

The common law doctrine of survivox'ship, in cases of bequests to joint tenants, or to a plurality of legatees, as a class, and also of lapsed legacies to sole legatees, was, in most cases, inconsistent with the presumed pux*pose of the testator*, whenever the deceased beneficiary left a descendant or descendants to whom the law would transmit the legacy if once effectuated iix the decedent. To provide for a father or mother is to provide for their children. A father of several children, one of whom had died, leaving a child, would, without some peculiar reason to the contrary, give to the ox’phan descendaxxt what he would have given to the parent, if surviving. And, generally, a testator should be presumed to intend that if, in his lifetime, any one of his legatees shall die, leaving a child, that child shall succeed to the legacy. Recognizing the truth and justice of this obvious coxisideratioxx, the Legislature of Kentucky enacted the refox*m contemplated by the statutes we have herein quoted. And a liberal construction should secure reasonable equality and effectuate the presumed intent of the Legislatux’e and of testamentary donors, in all cases within the scope of the legislative object.

There can be no doubt that, had her mother been living when the will was published, the appellant would have been her statutory substitute. But the appellees argue that her mother, then being dead, the appellant was not a legatee embraced by either the letter or the spirit of the statute.

As the term “ children ” designates “ a class,” the question on the statute is, whether, nothing appeax'ing to the contrary, the testator meant only the three children livixxg when he published his will, or intended the issue or descendants of Catherine Boyce. Had her two deceased children been then believed By the testator to be alive, or had he not known that they were dead, his simple devise to her children would undoubtedly have included them; and then, beyond question, the statute would have substituted their children as devisees. And if the testator intended to confine his bounty to a portion of his said sister’s descendants, and to exclude the appellant, why did he not name the three children intended, as well as the child of one of the two ■ dead children? Or why hid he not say “to Catherine Boyce’s living children?” Such a provision would have been much more appropriate and certain. The parenthetical allusion to the grandchild, Belle Dunlap, may be rationally understood as illustrative of the character of the devisees as issue, rather than as expressly legatory. And on this hypothesis, it strengthens rather than weakens the presumption, that, by “ children,” the testator meant issue or descendants. And the comprehensive and innovating provisions of the statute rather imply that the Legislature intended that a simple devise to such a class should, prima facie, be so interpreted. Any other implication would often frustrate the equitable purpose and conflict with the reason of the statute. For surely the appellant is as much within the range of that purpose and reason as she would have been had her mother died between the date of the will and the death of the testator, and especially as the will spoke at the time of the testator’s death, and not before, and was, until then, revocable or amendable. Nor docs even the letter of the statute against survivorship necessarily import that the death of one of a class of devisees must occur before the date of the will. “ Shall die before the testator,” may mean as well a death before as after publication. And this interpretation is fortified by the express declaration of the statute against lapses — that death, either before or after publication, shall prevent a lapse, and entitle the “issue” of the dead legatee to the legacy. These two kindred and simultaneous enactments should bo considered in pari materia, and construed in juxtaposition as one entire expression of the legislative intent, and should, therefore, be read thus: “If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator.” “ When a devise is made to several as a class, or as tenants in common or joint tenants, and one or more of the devisees shall die before the testator, and another or others shall survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees.”

Does not this rather imply that, in a devise to unnamed children as a class, the statute shall apply to a death of one of them before as well as after publication; and does it not, altogether, consistently import that, prima facie, such a devise should be understood, per se, as intended for the entire stock of descendants, including not only the children living at the publication, but also the representatives of siích child or children as were then dead — all to take per capita or per stirpes, as the statute law declares they should do had there been no will, or had their common parent been entitled to the legacy and had died intestate? The devise to C. Boyce’s children, as a class,- may well mean her whole stock — all she ever had. The motive of the devise to the “ children ” of the testator’s sister, Catherine, was his affection for her, and his felt duty .or desire to provide for her surviving posterity what he would have given to her had she herself been living. And would not that motive have applied to all her descendants just as the law would have applied to them had she been the devisee, and had afterwards died intestate? And do not the reason and justice of the statute likewise apply in the same way and to the same extent?

According to the common law, a simple devise to children would technically include only such of that class as were living at the time of publication. But a slight circumstance, intrinsic or extrinsic, might have extended the construction to issue.or descendants. And it seems to us that the liberal and comprehensive purpose of our Legislature was to make a radical and thorough change in the common law, as to lapses and survivorships; and, consequently, a correspondent change in the stringent construction of devises to children as a class, so as more certainly to effectuate equal justice and the actual intention of testators. Why else does the statute against lapses use the term “issue?” And why else does the statute against the survivorship of the common law use the word “descendants?”

The plain object of the legislative innovation, and the presumable intention of testators, and the spirit of the two legislative declarations, make no distinction between a death before or after publication? It' is true, that a‘ devise to only one identified person implies that the testator believes that the devisee was still living. But the presumption is strong that a knowledge of the death would have had no other effect than to change the devise to the issue or descendants in whose favor the testamentaiy motive may be generally presumed equally to apply. Consequently, within the purview, and consistently with the pervading spirit of the two statutes, there may be no sufficient reason for distinguishing between them as to the time of the death.

But another enactment provides, that “a devise to children embraces grandchildren when there are no children.” This is declaratory, affirmative, and peremptory. It declares the common law doctrine and peremptorily affirms that, when there are no children, a devise to children, as a class, must necessarily embrace grandchildren. But it does not say, that, when there are both living children and issue also of dead children, a simple devise to unnamed children, as a class, shall never embrace the issue or descendants of the dead children; and any such construction would conflict with the animating spirit and practical purpose of our statutory law on the subject of lapse and survivorship; and also with the spirit of a will indicating that the testator meant all the descendants of dead children. This enactment, therefore, does not materially affect the construction of either of the other two enactments.

Then, carefully considering the reason and object of these two enactments against lapse and survivorship when there may be “issue” or “descendants,” and allowing a liberal and consistent interpretation of the letter of that against survivor- ship, we are strongly inclined to the conclusion, that, to give full effect to the legislative purpose, a devise to “children,” as a class, unqualified by the context or by any extraneous fact, should here now be construed as a devise to issue, heirs, or descendants. And on this hypothesis the common law rule of construction should be inverted so as to require some other proof that, by “ children,” the testator intended the devise for such only as were living when he published his will.

And this construction would make the appellant a devisee in her mother’s place. This, however, we need not decide definitively, as there is another ground for adjudging her claim good and available.

Whatever, in this respect, may be the final and authoritative exposition of the statutes, we are satisfied, from the spirit and context of the will in this case, that the testator used the phrase, “ Catherine Boyce's children,” synonymously with her issue, heirs, or descendants — and this, even at common law, is sufficient to make the appellant a devisee. Wythe vs. Blackman, 1st Vesey, sr., '196; Gayle vs. Rennet, Ambler, 691; Rayle vs. Hamilton, 4tth Vesey, 437 — and many other cases adjudged in England and America, establish this exception from the common law import of the isolated testamentary term “children.”

In the will in this case children, heirs, and descendants, are used synonymously in the following instances:

1. In a devise to Thomas Steel, in trust for “ his wife and children,” the testator provides that, at the death of the trustee and his wife, the trust estate shall “ pass to their children or descendants in the same manner that the same would pass to them by descent if he (the trustee) owned the same in fee.”

2. In a devise to Charles Petit, in trust for the benefit of “ his wife and children,” the testator provides that, at the death of the trustee and his wife, the trust estate shall go to her “ heirs at law.” "

We are authorized, therefore, to conclude that, in the clause under which the appellant claims, the testator used the word “ children ” in the same sense of “ heirs ” or “ descendants,” in which he employed the same term in the foregoing in-* stances.

And this conclusion, from the face of the will, is fortified by the following auxiliary considerations:

1. In a devise to the “ children” of his brother Thomas, the testator identifies the particular devises by their individual names. But in this case the devise is to “ children ” only as a class, and the intended recipients not individualized by name or otherwise. This implies, that, when the testator intended living children only, he named them.

2. The proximity of the appellant was as near to the testator as that of several of his devisees, and nearer than that of several others. And we may presume that she was as meritorious as any of them, and, for her education and maintenance, needed his bounty moi’e than most of them. She even represented his deceased sister, not only in blood, but in the same name of “Catherine.” Then why, without any intimated or imaginable motive, should he have invidiously discriminated between her and all others, and emphasized a' peculiar repugnance to her, or indifference to her welfare, by an intentional pretermission of her in his will, distributing so lavishly a vast estate among collateral kindred and strangers? He cannot, consistently, be presumed to have so intended. And, consequently, he must be presumed to have used “ Catherine Boyce’s children ” as synonymous with her descendants, as in other portions of his will, and to have thought that the statute against survivorship would so operate.' And we are also satisfied that his oblique allusion to’ Belle Dunlap was intended only to illustrate .that meaning of the word children, and to show that she, being a descendant, was included in the devise to “ children,” according to his-intention, as manifested in two other clauses of his will, to include descendants of dead children, when he made a devise or bequest simply to “ children;” and as he had, by his express allusion to Belle Dunlap, the only child of a deceased son of his sister Catherine, shown that he meant, by said Catherine’s “ children,” those living and the issue of such also as were dead, to take, according to the statute of distribu tions, the portions devised to their deceased parents, he either did not know that the appellant was living, or, if he did, he thought it superfluous to repeat the same idea by naming her in the same way, and for the same purpose, already sufficiently indicated.

This court, Judge Williams dissenting, is, therefore, satisfied that, according to the spirit and context of his will, and the most consistent interpretation of the legatory clause under which the appellant claims, fortified by the o-bject of the statutory provisions we have quoted, the testator intended, by “ children ” unnamed, issue or descendants of the dead parents — and we therefore conclude that the appellant is a legatee, entitled to her mother’s portion as her only child— just as she would have been had her mother survived the testator and afterwards died.

Wherefore, the judgment dismissing her petition is reversed, and the cause remanded, with instructions to decree to the appellant one fifth part of the estate devised to the children of Catherine Boyce.