Stone v. Stone ( 1916 )

KerwiN, J.

(dissenting). I cannot agree with the majority of the court in this case. The residuary clause of the will is clear and specific. It divides the residue of the estate into five equal parts or shares and one of such shares is devised and bequeathed to Martha M. Ried.

The residuary clause does not give the residue to the legatees as a class or as joint tenants. The terms of the residuary clause are clear and unmistakable that one fifth was given absolutely to Martha M. Ried, and, she having predeceased the testatrix, the bequest to her lapsed and became intestate property.

Of course, if there were anything in the will which showed a different intention on the part of the testatrix the cases cited by appellant would be in point. I find nothing in the will which would justify the construction placed upon it in the majority opinion. There is nothing in the will and surrounding circumstances from which an intent can be inferred that the residuary bequest was to a class. There is nothing in the will and surrounding circumstances from which an intent can be inferred that upon the death of Martha M. Ried before the testatrix the bequest to Martha M. Ried should go to tbe other residuary legatees. An intent cannot be inferred against the plain, unambiguous terms of a will.

In addition to the cases relied upon by counsel for respondent, cited in their brief and referred to in the majority opinion, I cite the following: Will of Allis, ante, p. 452, 157 N. W. 548; Ward v. Dodd, 41 N. J. Eq. 414, 5 Atl. 650; Hand v. Marcy, 28 N. J. Eq. 59; Manier v. Phelps, 15 Abb. N. C. 123. See note collecting cases in 2 Williams, Executors, pp. 822 to 828.

I am authorized to say that Mr. Justice Vinje concurs in the foregoing dissent.