Rand v. Thweatt

Minor W. Millwee, Justice.

The facts in this case are stipulated. Rosa L. Rand De Mers was the widow of J. C. Rand and bad been married to A. N. De Mers for several years in May, 1946, when sbe executed ber will. Sbe became incompetent in December, 1946, and died January 29, 1953, leaving an estate valued at $278,000.

In the first paragraph of the preamble to her will, testatrix relates how the estate had been acquired by the hard work and frugality of her first husband and her own labor and sacrifice after his death. In the second paragraph, testatrix gave her reasons for the small bequest to her second husband, A. N. De Mers. The third paragraph describes the nature and location of her properties. The fourth paragraph of the preamble reads: “I have a sister, Mrs. Frank Oliver, now residing in Memphis, Tennessee, with her daughter, Anna Oliver Taylor, residing also in Memphis; the six children of my deceased brother, John Sherrod; the two brothers of my deceased husband, J. C. Rand; and my husband, A. N. De Mers; and also a true, tried, and trusted friend named herein below, and it is among these that I do devise and bequeath my properties in the respective portions unto each as herein named below”.

After directing the payment of funeral expenses and debts, and specific bequests of $10 to A. N. De Mers and $5,000 to the friend, Mrs. Minnie Halliburton, the will provides: “All the rest and residue of my personalty and realty, wherever situated and located, I do hereby give, devise and bequeath the same unto the following persons in the respective proportions, to-wit:

“To my sister, Mrs. Frank Oliver, now residing in Memphis, Tennessee, and her daughter, Anna Oliver Taylor, also of Memphis, Tennessee, an undivided one-fourth interest in and to same.

“To the six children of my beloved deceased brother, John Sherrod, said children with their names and addresses as follows:

1. Hazel Sherrod Adams, 201 South Maple Street.

2. Maude Sherrod Brown.

3. Grace Sherrod Hopper, Helena, Arkansas.

4. Frank Sherrod, Detroit, Michigan.

5. George Sherrod.

6. Rose Sherrod Seaton, Detroit, Michigan, Five thousand ($5,000.00) Each;

“Unto the two brothers of my beloved first husband, J. C. Rand, Charles Rand, residing in the State of Massachusetts, and Henry Rand of Portsmouth, New Hampshire, an undivided one-fourth interest in and to said property as above, same to be divided among them in the proportions as above set out. (Italics supplied.)

“If, after the above bequests are paid, there remains any rest and residue of my estate, then the net proceeds of the remainder shall be divided with each of the beneficiaries heretofore named above, except A. N. De Mers, share and share alike.”

Henry Rand predeceased the testatrix. Interested parties filed petitions to construe the will to determine whether a class gift or a gift to them as individuals was made to Henry Rand and Charles Rand, under the above devise and bequest to them. The trial court found that a gift to individuals was intended, that the one-eighth interest devised and bequeathed to Henry Rand therefore lapsed and should become a part of the residue to be distributed to the other beneficiaries designated in the will, except A. N. De Mers.

A review of the cases demonstrates that courts are somewhat hesitant to lay down any hard and fast rule for determining whether a gift is to a legatee individually or as a member of a class. Appellant relies strongly on the rule stated in 57 Am. Jur., Wills, § 1259, as follows: ‘ ‘ The only universal rule for determining whether testamentary gifts to several persons are gifts to them as a class rather than as individuals is to ascertain the intention of the testator, which it is everywhere conceded, is controlling. The decisive inquiry is whether or not the testator, in making the particular gift in question, did so with ‘ groupmindedness, ’ whether, in other words, he was looking to the body of persons in question as a whole or unit rather than to the individual members of the group as individuals; if the former, they take as a class. Any additional circumstances which may be seized upon, such as the general scheme of the will, the manner and form in which the beneficiaries are designated, the particular language used, or the relationship of the parties and the circumstances surrounding the testator, are to be regarded merely as aids in ascertaining the testatorial intention.”

There is another settled general rule that is equally applicable to the case at bar, to the effect that where a bequest or devise is made to beneficiaries designated by name, they take as individuals rather than as a class, in the absence of a contrary intention appearing elsewhere from the will, or the surrounding circumstances. The rule is stated in Page on Wills, § 1049, as follows: “If the gift is made to beneficiaries by name, the gift is, prima facie, not one to a class, even if the individuals who are named possess some quality or characteristic in common.

“Where there is a gift to a number of persons who are indicated by name, and who are also further described by reference to the class to which they belong, the gift is held prima facie to be a distributive gift and not a gift to a class.

‘1 The context, however, may show, that the names of the beneficiaries were added to the description of them as members of a class for the purpose of greater certainty, and that the paramount intention of testator was to make the gift to a class. In such case the gift will be treated as one to a class even if the names of the beneficiaries are given in the will. . . .

“If the will gives the number of the members of the class, this is prima facie a gift to them individually; the class being given merely by way of identification or description.

“If the names of the members of the class as well as the number of the members are given, the inference is quite strong that the gift is to individuals, and not to a class. ’ ’ See also, 57 Am. Jur., Wills, § 1261; annotations: 75 A. L. R. 773, 105 A. L. R. 1394.

In attempting to ascertain the intent of the testatrix in the case at bar, we have only the will itself, unaided by any extrinsic evidence or circumstances. In the devise and bequest under consideration it should be noted that the testatrix not only named the beneficiaries but also gave their number, address, and relationship. There can be no doubt that under the authorities generally a strong prima facie case is thus made in favor of a gift to individuals distributively and against a gift to a class. The difficult and controlling issue is whether that presumption is overcome by the language, form, or general scheme of the will as reflected by the context of the will as a whole. Appellant points to the fourth paragraph of the preamble to the will where the testatrix lists her beneficiaries and insists that “groupmindedness” is definitely established by the form, punctuation and groupings of the beneficiaries, together with the general context of the will. In answer appellees point to the fact that such grouping’ of relatives is only natural and logical and that an intent to make a class gift could easily have been indicated by words of survivorship as between Henry and Charles Rand, or the other beneficiaries, if such gift had been intended.

In most of the cases where wills have been construed to have created a class gift, the devise or bequest has been to “children”, “brothers”, “heirs”, or to some other group of persons without specifically naming the beneficiaries. See Martin v. Gray, 209 Ark. 841, 193 S. W. 2d 485. In those cases where a class gift was held to have been created despite the fact that the beneficiaries were named, there are presented important factors either in the language of the will itself or the surrounding circumstances sufficient to repel and outweigh the inference arising from the naming of the beneficiaries. We agree with the trial court that the context of the will under consideration does not present sufficient indication of a class gift to overcome the prima facie presumption of a gift to Henry Rand and Charles Rand as individuals. The judgment is accordingly affirmed.

George Rose Smith, Justice, not participating.