Anderson v. Brown , 84 Md. 261 ( 1896 )

Page, J.,

delivered the opinion of the Court.

William J. Anderson died in 188 i, leaving a widow and nine children. After his death his property was sold under a decree of the Circuit Court for Queen Anne’s County, and the proceeds thereof are now in the hands of the appellees trustees. The petitioners, who claim to be legally entitled to the fund, allege in their petition that they have jointly and .severally agreed that each shall be paid the proportion to which they may now be entitled, and to surrender and release all their several or joint rights of survivorship to the said fund, and to deliver to the trustees such releases as may be requisite to discharge them from further liability. Whether they are so entitled depends upon the construction to be be placed upon the provisions of the will of the deceased. By the first and second clauses of his will the testator declares his desire that William J. Anderson, his son, to whom he had made advancements equal to his full share of the estate, shall not further participate in his property, and that any other of his children to whom he should thereafter advance an equivalent (in his opinion) of his or her full share, shall be considered as if he or she had never been mentioned in the devises therein-after contained. .By the third section he gives his real estate (except the Millington property) to his wife for life or widowhood, and provided for the “ moderate and proper support and maintenance on said property for such of his children as may not receive advancement, so long as they shall remain unmarried and obedient,” &c., and at the death or marriage of the widow he devises the property to his eight children (not including William), “ to them and their heirs and assigns forever, and in case of the death of any one of them without issue living at the time of his or her death, I do give and devise his or her share to the survivor or survivors, and this principle of survivorship I do direct to apply not only to the original, but to all accretions by survivorship until the death of any and all of such children as may die without issue at the time of his or her death.” By the fourth clause he desires his wife shall take her thirds only, if she marry again; and that, subject thereto, the devises “over or in remainder shall go into immediate effect.” By the fifth, he directs the Millington property to be sold, and of the proceeds, one-third to his wife, and the residue to the children named in the third clause of his will, to whom he shall not have made advancements. By the sixth he disposes of his personalty, to his wife for life or widowhood, “to keep together” for managing, etc., the real estate, and at her death or marriage to be divided among the children mentioned in the third clause who have received no advancement. “ In case of the death of any such child or children before the death of their mother without issue, the part he would take to go to the survivors. In case of the death of any one leaving issue, the issue to take the parent’s place in the division.” And by the seventh and last clause, in case his wife shall marry, she is to receive her thirds in his personal estate, and the bequests to the children to take immediate effect.

The appellees contend that under a proper construction of this will the petitioners cannot effectively release the trustees, and are not entitled to have distribution of the fund, because the testator intended that the defeasibility attaching to the several shares should continue till the last child died without issue, and therefore to effectuate that intention, in case of the death of one or more with issue living, and then the death of one or more or all of the others without issue, the issue of the predeceased children would take a proportional part of the share or accretions thereof of the ones so dying without issue; and also, in case all the children mentioned in the third item of the will died without issue, the line of succession as provided by the will would be exhausted, the fee-simple be defeated, and a contingency not contemplated by the testator would arise, and the property would in that event pass to such heirs at law of the testator as would answer the description when the contingency happened.

Now, the determination of this question thus presented is purely a matter of what the testator himself intended. If a general intent can be gathered from a fair consideration of the whole will, when taken in connection with the relations of the testator to the objects of his bounty, such intent must prevail, unless some positive rule of law intervene to prevent. Here the devise is to the eight children in fee, as tenants in common, and in the event of the death of any one of them without issue living at the time of his death, then his share to the survivor or survivors. If the word “survivor” is to be taken in its ordinary meaning, it is obvious that no one can take but one who answers the description of the parties named as devisees, viz., the survivor or survivors of the eight children named in the third clause of the will. Turner v. Withers, 23 Md. 41; Moale v. Moale, 16 Jur. 1010.

Now, to meet this difficulty and to cariy out the intention which it is insisted is to be found in the will, the appellees argue, the word “ survivor” should be regarded in this case as synonymous with “other.” It is undoubtedly true that in order to carry out the intention of the testato this has sometimes been done. “ But,” says Redfield in his Treatise on Wills, vol. 2, p. 272 (3d ed.), “it seems to be now established by numerous decisions that the same rule of construction will be applied to the word ‘ survivors ’ as to any other. It will be received in its natural and literal import unless there is something in the context or attending circumstances tending to a different conclusion.”

“To construe it as equivalent to ‘ other,’ ” said the Lord Chancellor Lyndhurst in Crowder v. Stone, 3 Russ. 217, “ is a construction which the Court may sometimes be compelled to adopt in order to accomplish the intention which appears on the whole will.” 2 Jarman, 648 (ed. 1861).

All the cases to which we have been referred or examined in which “ survivor” has been construed as the equivalent of “other” appear to have been so decided because there was something in the will to make it clear that the testator intended the issue of predeceased children to take, or that some other clearly expressed intention would otherwise be rendered inoperative. We refer to some of the cases: Wilmot v. Wilmot, 8 Vesey, 10; Ranelagh v. Ranelagh, 2 My. & K. 441; Leeming v. Sharratt, 2 Hare, 14; Aiton v. Brooks, 7 Sim. 204; Marriott v. Abell, L. R. 7 Eq. 478; Badger v. Gregory, L. R. 8 Eq. 78; Benn v. Benn, 29 Ch. Div. 844; Pomfret v. Graham, 19 Ch. Div. 191; Re Usticke, 35 Beav. 338; Nevell v. Bodam, 28 Beav. 554.

In Twist v. Herbert, 28 L. J. R. 490, we have from the Lord Chancellor the following remark. Whether it can be taken as a rule of construction or not, it commends itself as sound and pertinent to this case. “ It is,” said he, “not a safe mode of construction to take a single reason which contributed to a conclusion in a particular case and elevate it into a canon of construction, which is to rule all other cases to which that reason alone would apply.” The words survivor or survivors “ are to be taken in their natural or primary sense, except when there is some reason which justly leads to another conclusion.”

' In this case the scheme of the will is fully apparent and is maintained consistently to the end of the instrument. After excluding those of his children, who had received or should receive advancements, and giving an estate for life or widowhood to his widow in all his property, real and personal (except the Millington lot), he devises his whole estate, by several clauses, to his eight children, whom he 'names, in fee, with a conditional limitation, viz., that if any one die without issue living at his death his share to go to the survivor or survivors, and the concluding part of the third clause then declares “that the accumulations and accretions shall be affected by the same principle of survivorship.” Now, we can find in this devise no intention on the part of the testator to do more than divide his property among those of his children who had received no advancements. If one died leaving issue, such issue are to take the parent’s share ; if without issue, then the share is to go to the surviving children. In the sixth clause, in disposing of his personalty, his language is unmistakable : “In case of the death of any such child or children before the death of their mother, without issue, the part he would take to go to the survivors. In case of the death of any one leaving issue, the issue to take the parent’s place in the division.” It is obvious the parent would take only such share as he would be entitled to at the period of his death ; and if this be so, nothing could come to the issue of predeceased children except that which the parent possessed or was entitled to at the time of his death.

We do not think there is anything in the language relating to the accretions, which affects this construction. The testator had already stated how he desired the corpus of his estate to go, and now he declares that he desires the same rule of transmission shall apply to the accretions. There is no gift over in any part of the will, in the event of the death of all the children, without issue. He had given the whole estate to them, in fee, as tenants in common, with cross-remainders between them; so that the survivor or survivors should take the shares of those who died without issue living at the time of their death.

We do not think the argument is sound, that the estate of the last survivor would be defeated upon his death, without leaving issue. The Master of the Rolls dealt very effectively with a contention of this kind in Maden v. Taylor, 45 L. J. Ch. 572. There the devise was to trustees, in trust for four nieces for their respective lives, as tenants in common; on the death of any of them, to the children of the person so dying; and on the death of any without issue, then to the “ survivor or survivors.” “ Does anyone,” says he, “ doubt that a gift to the survivor of ten people, of a sum of money or an estate with no previous gift at all, vests the sum of money or estate absolutely in the last liver. It is quite true, that the last liver does not survive himself, but he survives all the rest, and in that sense is a survivor.”

Much stress was laid by the appellees upon the cases of Doe v. Wainwright, 5 T. R. 427, and Smith v. Osbourne, 6 H. L. Ca. 375. These properly belong to a particular class of cases, in which Waite v. Littlewood, L. R. 8 Ch. App. 70; Wake v. Varah, 2 Chan. Div. 355, and many others cited in chapter 47 of 2 Jarman on Wills, may be included. As a resume of them all, that learned author says : “It may, therefore, apparently be taken as settled, with regard to the cass of cases now und er consideration, that in order to read the expression, ‘ survivors,’ as meaning ‘ others,’ there must be a gift over, or some other indication of manifest intention to oust the ordinary interpretation.” In the case of Wake v. Varah (supra), the devise was to trustees, to pay the income equally among his three children, during their respective lives; at the death of each, his share to go to his issue ; and if any child died without issue, then to the survivor or survivors, during their respective lives ; and if all died without issue, then for the representatives of the survivor. It was held there was a fair inference, that there should be equality “ between the stirpes ; ” but this conclusion, it was expressly stated, did not follow from the use of the words “ survivor or survivors,” but the next provision supplied the necessary clue, viz., the gift over. But even the ultimate gift over is not always sufficient ground for altering the construction of the words, when no other reason can be found forso altering. Twist v. Herbert (supra).

In this class of cases, much importance is laid on the peculiar devise, viz.: that the first taker receives only a life estate, with remainder to survivors—and on failure of issue, an ultimate gift over. In such cases cross-remainders between the stirpes, would be created in order to effectuate the intention of the testator to provide as much for the issue as for the children. In Doe v. Wainwright, the Court said that the meaning of the word “ surviving,” standing in this context is, that on the death of one child without issue, that portion shall go to the “ surviving line of heirs.” Re Corbett’s Trusts, Johnson’s Ch. Rep. 597. But in the case at bar these features are wanting. The children here take estates in fee, in common, defeasible on the death of any one without leaving issue; and there is no gift over, on an entire failure of issue.

In this State, however, a doctrine broader.even than that recognized in these cases, seems to have been laid down in the case of Turner v. Withers, 23 Md. 18. There the testator devised his real and personal estate to his wife and five children—to each, one-sixth part for life—and in case either died without children or descendants alive at his or her decease, the part of the one so dying to be divided among the remaining children for their lives; in case of death with children, then to the children per stirpes and not per capita; and in case of the death of all the children without issue, over to another, in fee. One of the children died in 1852, leaving children, and in i860 another died, without children ; and the question was, whether under the will, the issue of the child who died in 1852 were entitled to a share of the estate of the child who died in i860. Here then were many of the conditions upon which the English Courts have construed the devise to create cross-remainders between the stirpes, as well as between'the children. But this Court held, that the issue of the child dying in 1852 could not take as devisees under the will, nor by descent from their parent; not by descent, because the parent had only a life estate; not under the will, because the remainder was granted by the terms of the will to his “ remaining children.” And no one could take by purchase, as devisee under the will, unless he answered to the “ description of the parties as devisees.”

(Decided November 19th, 1896.)

Under the will in this case, we are of opinion the petitioners mentioned in the third item took an estate in fee, as tenants in common, defeasible as to each, on his or her death without issue, in which event the share of the person so dying passed to the survivor, so that the last survivor took his estate, including that which survived to him, in fee absolutely. For these reasons we must reverse the decree of the lower Court and remand the cause for further proceedings, in conformity with the views herein expressed.

Decree reversed and canse remanded.