Tillinghast, Trustee v. D'Wolf and Others

8 R.I. 69

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1864
• Status: Published

Opinion

Brayton, J.

The testator, in this case, devised certain property to his executors, in trust, for the separate use of his daughter, Catharine, for her life, and to hold the same after her death, for the use of her children and their issue; but in case there should be no issue, he directed that the provision made for his said daughter, i. e., the estate devised to her for life, should be equally divided among all his children and one of his grandchildren, — viz., his grandson, James D’Wolf, — or their heirs. Three other grandchildren, viz., the children of the testator’s deceased daughter, Mary Ann Sumner, claim to be entitled under the devise.

These claimants are not named as devisees; but it is said, that they are entitled to share in the estate by virtue of the intent of the testator, as gathered from the whole will; that they should, taken collectively, share equally with the testator’s children in all his estates.

That he intended to give them a fair portion of his estate, we can see by the devise to them of large estates, in the fourth clause ; and that he intended to give them a share of the residue of his estate, appears by the twelfth clause; but we are not warranted in inferring, from these, that he intended them to share, either individually or collectively, equally with his children, or to share at all in this devise. We cannot construe the word “children” to include “grandchildren” when there are persons to answer the description of children, unless (which is not the case here) there be some ambiguity in the language rendering it necessary, or unless the testator’s intent, expressed in other parts of the will, could not otherwise be satisfied. Williams on Executors, 742 ; 2 Dessass. 308.

The testator has used the word 11 children” and the word “grandson” in the same connection, showing thiit he did not mean by “children” to include “grandchildren.”

The counsel has suggested an insuperable difficulty in the way of this claim, when he says, “ the only possible ground of objection against the claim of these children of Mrs. Sumner is., that they are not specially mentioned in this clause.” The rule is, that the legatee must answer the description given by the testator, or he cannot take. The claimants are neither named nor described in any way. In such case, there cannot be said to be any ambiguity; and unless there is, it cannot be aided by the context, or by ,parol evidence. We cannot substitute the name of a devisee, or a description of one, any more than we can a description of the property devised; and, clearly, we could not do that.

We can see no way in which these claimants can take. They are not named; they are not described as the objects of the gift. On the contrary, others are named as such objects, to whom the estate is expressly given; and, by necessary consequence, these are excluded though they may be heirs; and the direction to the trustee must be, that they are not entitled.