Campbell v. Clark , 64 N.H. 328 ( 1887 )

A will speaks not from its date, but from the death of the testator, unless a different intention is expressed. The residue is given to the nieces and nephews as a class. The individuals composing the class are ascertained at the time when the devise takes effect, that is to say, at the testator's death. The gift is to the nieces and nephews in being at that time. Hall v. Smith, 61 N.H. 144. This doctrine, like all rules for the interpretation of wills, rests upon the ground that it gives effect to the testator's intention. A gift to a class implies an intention to benefit those who constitute the class when the gift takes effect, and to exclude all others. Barber v. Barber, 3 Myl. Cr. 697. There is nothing in the present will from which it can be inferred that such was not the design of the testatrix.

The statute providing that "The heirs in the descending line of any legatee or devisee deceased before the testator, shall take the estate devised or bequeathed, in the same manner the legatee or devisee would have taken the same if he had survived" (G. L., c. 193, s. 12), has no application. Its purpose was not to defeat the testator's intention, or to change the rules of construction by which the intention is determined, but to provide that if by reason of a legatee's or a devisee's death in the testator's lifetime the gift cannot take effect as intended, it shall go to the lineal descendants of the legatee or devisee rather than to the testator's heir-at-law or residuary legatee. It only applies where the intended donee dies before the testator, and where the property in that event is not disposed of by the will otherwise than by a residuary clause. If a devise be to two or more and to the survivor of them, or to be held by them as joint tenants, or to such of a class of persons as may be living at the testator's death, and one die in the testator's lifetime leaving issue, a holding that such issue takes under the statute as the parent would have taken had he survived would defeat the expressed intention of the testator. It is not material whether the intention is stated in express language or is determined by construction. If a devise generally to a class of persons, and a devise to such individuals of the class as may survive the testator, are in legal effect equivalent, the statute can no more be applied in the one case than in the other without thwarting the testator's intention. It cannot be held that Belle A. Williston takes the interest which her mother would have taken if she had outlived the testatrix, without overruling the settled doctrine that in a gift to a class the intended objects of the testator's bounty are the persons of the class who are in being at his decease

Mr. Jarman, commenting upon a similar English statute, says it does not "touch the case of a gift to several persons as joint tenants, for as the share of any object dying in the testator's lifetime would survive to the other or others, such event occasions no lapse to prevent which is the avowed object of the clause under consideration. The same reasoning applies to a gift to a fluctuating class of objects who are not ascertainable until the death of the testator, though made tenants in common. This, suppose a testator to bequeath all his personal estate to his children simply in equal shares, it would seem that the entire property would as before the statute belong to the children who survive the testator without regard to the fact of any child having subsequently to the date of the will died in the testator's lifetime leaving issue who survive him." 1 Jar. Wills (1st Am. ed.) 313. So in 2 Wms. Ex. 1222 it is said that the statute "does not apply to gifts to a class. For the intention was to provide against lapse merely, and not to alter the construction to be put on the will." The same conclusion under similar statutes was reached in Young v. Robinson, 11 G. J. 328; Gross's Estate, 10 Penn. St. 360; — see, also, Morse v. Mason, 11 Allen 36. A contrary view was taken in Moore v. Dimond, 5 R. I. 121, and under a materially different statute in Yeates v. Gill, 9 B. Monroe 203; — see, also, Jamison v. Hay, 46 Mo. 546.

The devisees take per capita. Farmer v. Kimball, 46 N.H. 436. There is nothing to indicate that the testatrix intended that those who were her nieces and nephews and also the nieces and nephews of her former husband should take more than others. It is as if she had said, I give, etc., to my nieces and nephews by blood and by my marriage with John Carr.

Case discharged.

BINGHAM, J., did not sit: the others concurred.