Winslow v. Goodwin

Wilde, J.

This case depends on the construction to be given to the last will of John Bray, the father of the plaintifFs wife, now deceased, as to the remainders thereby given to her children, and upon the rules of law as to the plaintifFs right and' title to the shares of three of the children, who have died without issue since the death of the testator; two of them having died before, and one since, the death of their mother.

It is contended, on behalf of the plaintiff, 1st, that by the provision of the will, all the children of Mrs. Winslow, and not merely those who survived her, were the intended objects of the testator’s bounty: 2d. That the interest of the said children, both in the real and personal estate, was several and not joint: 3d. That the shares of the children who died before their mother passed to their heirs and representatives, on their death, notwithstanding their interests were contingent upon the event of the plaintiff’s surviving his wife: 4th. And lastly, that the interest of Caroline L. Winslow, who survived her mother, passed to the plaintiff, as her heir and administrator, although she died before she arrived at the age of 21 years.

In respect to the first point, we are of opinion that all the (hil» dren of Mrs. Winslow, living at the death of the testator, took a contingent interest in the estate devised to her for life. If there had been no contingency, by which their interests might be defeated, they would have taken vested remainders in the real estate, however the rule may be as to the personal estate, as to which it is not necessary to express an opinion; for unquestionably the children’s interests before the death of their mother were contingent, both in the real and personal estate. But the question is not what their interests then were, whether vested or contingent, absolute or conditional, but whether they took any interest before the death of their mother. And we think they did. All the children were living at the decease of the testator, so that there is no question as to any claims of after-born children. The testator, we think, must have intended to provide for all the children, and this intent is expressed with sufficient clearness and certainty in the language of the will. The words are, “ if she ” (Mrs. Winslow) “ shall die in the life time of her said husband, then to hold said seventh part in trust for her children.” This must undoubtedly mean all her children; and, but for the subsequent clause, we think there could be no doubt as to the true meaning and construction of the will. But we consider this clause of the will as intended merely to fix the time or times when the children should respectively be entitled to the possession of the devised property; and in no other respect to limit or affect the construction of the devising clause. It has been argued by the defendants’ counsel, that this last clause was in tended as a description of the children who were to take on the death of their mother, and that none could take who were not designated by that description; so that no child could take any interest under this will, unless he or she were living at the decease of the mother, and unless he or she should attain the age of 21 years. But we think such a construction would be inconsistent with the previous devising clause, which gives the estate to the children generally; which must mean all the children, and which is equivalent to a gift to them nominatim, so far as to show that they were all the intended objects of the testator’s bounty. In ascertaining the intention of the testator in this respect, t "a immaterial whether the remainder to the children was vested or contingent; and in this view the case of Emerson v. Cutler, 14 Pick. 108, is directly in point. In that case the testator gave a portion of his estate, real and personal, to his children, to be equally divided between them, and to be distributed to them as they should respectively arrive at the age of 21 years, and not before ; and his executors were authorized to receive the rents, income, and interest of the said portion of his estate, real and personal, and to apply the same, or such part thereof as they should judge necessary, to the support and education of his children, until they respectively should arrive at the age of 21 years.

The plaintiff in that case married one of the daughters, who died before she arrived at the age of 21 years; and the court held that he, either in his own right as husband, or as administrator of his deceased wife, was entitled to his wife’s share in the personal estate. There is no material distinction between that case and this, as to the question now under consideration. By the devising clause, the testator in the present case gave to Mrs. Winslow’s children a portion of his estate, if she should die in the life time of her husband. And by this clause he undoubtedly intended to include all her children ; and we are of opinion, that by the subsequent clause he only intended to give directions as to the time when the trust should cease, and the children should be entitled to possession of their shares in the property devised. This clause is not to be considered as a condition to the vesting of the children’s shares; for if it were, then the shares of the minor children living at the decease of their mother, and who died before they arrived at the age of 21 years, would not go to their issue or representatives ; and such is the argument maintained by the defendants’ counsel. But we think it very clear, that on the death of Mrs. Winslow, the shares of the minor children vested in them absolutely and unconditionally The legal estate, it is true, continued in the trustees, but the equitable estate, the whole use and benefit thereof, vested in the minor children. It is said that there is no provision in the will authorizing the trustees to pay or convey to the representatives of any deceased child. But suppose that the direction had been confined to the minor children as to the time when they should be entitled to possession, and nothing had been added as to the time when the other children were to come into possession ; could it be contended that they would be excluded from taking the shares of the devised property expressly given them by a prior clause in the will ? Certainly not; and so, in the present case, the omission to mention the representatives of such children as might die before their mother, will not defeat their claims, if they are otherwise sustained by the rules of law.

2d. In respect to the second question, we are of opinion that the children took their shares in severalty, and not jointly. On this point, the decision in Emerson v. Cutler, before cited, is conclusive ; and all the authorities concur in the rules of construction in such cases.

3d. As to the third question, there are some conflicting decisions, but the law we think has long been well settled.

On the part of the defendants, it is contended that the children’ interests in the estate devised to their mother being contingent, no one of them could take who was not living at the time the contingency happened. On the other hand, the plaintiff contends that all the children took interests in the estate devised, on the death of the testator, which, although contingent, were nevertheless transmissible to their representatives. And this doctrine, as to the transmissibility of contingent interests, in both real and personal estates, seems to be fully sustained by the English authorities.

“ In general,” says Fearne, “ it seems, that contingent inter ests pass to the real or personal representatives, according to the nature of such interests, as well as vested interests, so as to entitle such representatives to them when the contingencies happen.” Fearne, (7th ed.) 364. That this has long been the established law of England appears very clearly by the cases cited. Before the case of Pinbury v. Elkin, 1 P. W. 563, there had been, it seems, some conflicting decisions, which were taken into consideration in the decision of that case. There, one possessed of personal estate gave the same to his wife; provided that if she should die without issue by the said testator, then after her decease, £80 should remain to the testator’s brother. The brother died in the life time of the widow, who afterwards died, leaving no issue; and it was held, that the brother’s executor was entitled to the legacy. Lord Chancellor Parker, in that case, said it was true, that in Swinburne on Wills, 461, 462, '' some cases were put which seemed to import the contrary ; but those cases were so darkly put, and with so many inconsistencies, as to be well overbalanced by the opinion of Lord Nottingham, in 2 Vent. 347, where a man devised £100 to A. at the age of 21 years, and if A. died under age, then to B. B died in the life time of A., and afterwards A. died under age, yet decreed that the executors of B. should have this £ 100.” The decisions in both these cases were approved by Lord Talbot, in King v. Withers, Cas. Temp. Talb. 117, and by Lord Hardwicke, in Chauncy v. Graydon, 2 Atk. 616. The principle, as there laid down by Lord Hardwicke, is, that “ where either real or personal estate is given upon a contingency, and that contingency does not take effect in the life time of the first devisee, yet, if jeal, his heir, if personal, his executor, will be entitled to it.” The same principle is again laid down by Lord Hardwicke, in Hodgson v. Rawson, 1 Ves. sen. 46 ; and again in Medlicot v. Bowes, 1 Ves. sen. 208. These decisions are approved and confirmed by Lord Thurlow, in Barnes v. Allen, 1 Bro. C. C. 181. In that case there was a devise of personal estate to the testator’s wife for life, and if she should die without issue living at her death, to his two brothers, or if one of them should be dead, to the survivor. They both died in the life time of the wife; and it was held that the legacy to the brothers was so vested in right, notwithstanding the contingency, as to go to the representative of the survivor; and the same point was again decided in Devisme v. Mello, 1 Bro. C. C. 537. The law on this point was recognized as fully settled, in Jones v. Roe, 3 T. R. 88 The question was, whether an executory devise were devisable; and it was decided that it was. It was admitted, by the counsel who maintained the negative, that such a contingent interest was transmissible, and that a mere right of entry, whereby a party might by entry for condition acquire an estate, was descendible But the argument was, that a mere possibility was not assignable at law, and consequently not devisable. But the court held clearly that executory devises were transmissible and devisable; that they were not mere possibilities, but in the nature of contingent remainders; and that there was no doubt but that such estates were transmissible and consequently devisable. Buller, J. says, that such an interest is descendible, “ because the person taking it has an interest in the lands, which is known to the law; ” and that “ the cases on this subject have been uniformly determined in the same way for nearly fifty years past.” And Lord Kenyon says, in the close of his opinion, “ I sincerely hope that this point will be now understood to be per fectly at rest.” And so it seems to have remained ever since.

From these and numerous other authorities cited by the plaintiff’s counsel, it is manifest, that the rule, as laid down by Fearne, has long been settled as the law of England. The principle is, that a contingent interest either in real or personal estate may so vest as to be transmissible to the heir, or executor, or administrator of the person to whom it is given, if he should die before the contingency happens. It is objected by the defendants’ counsel, that there is an important qualification of this rule, that where the existence of the devisee of a contingent interest at some particular time by implication makes a part of the contingency, and enters into it, the contingent interest cannot descend. This is undoubtedly true ; and upon the construction of the will contended for by the defendants’ counsel, namely, that the devise was limited to the children living at the death of their mother, the objection would be decisive against the plaintiff’s claim to the shares of the two children who died before that time. But. for the reasons already given, we are of opinion that no such implication can be deduced from the language of the present will. All the children, by the devising clause, were manifestly the intended objects of the testator’s bounty ; and it cannot be implied, from the subsequent clause, that he intended that the issue of such of the children, as might die in the life time of the mother, should not take the shares devised to such deceased children. Which would be the effect of the defendants’ construetion of the will. Nothing but the clearest manifestation ol such an intention would justify such a construction.

But the defendants’ counsel rely principally on several cases in our own reports, by which it is contended, that however the law on this point may be in England, it has been settled in this Commonwealth, that a contingent remainder, before the contingency happens, is not transmissible to the heir or representatives of the remainder-man. But from the reports of these cases, it does not appear that the question under consideration has ever been argued by counsel or considered by the court. And in only one of the cases cited is it involved in the decision. That is the case of Denny v. Allen, 1 Pick. 147. The will, in that case, was very similar to the one now under consideration. The testator gave the use and improvement of his real estate to his wife during her life, and the reversion to and among all the children of his brothers and sisters. And his personal estate he bequeathed to trustees, in trust for the use of his wife during the time she should remain his widow ; but if she should survive her brother Joshua Henshaw, then it was to become her absolute property ; and in case of her marrying again, or dying before her said brother, then the personal estate was thereupon given to and among all the children of his brothers and sisters. In a codicil he afterwards adds, “ my will and meaning is, that in case any of my real and personal estate should remain undisposed of afte; my wife’s decease, that the same be equally divided between my nephews and nieces.” The court held, on the authority ol Dingley v. Dingley, that the nephews and nieces, living at the decease of the testator’s wife, and the heirs of those who had diec before, were entitled to their respective shares of the real estate but that with respect to the personal estate, only those nephews and nieces were entitled, who were living at the death of the wife. According to the report, it was observed by the court, that “the general principle to be extracted from the cases in the books is, that when the devise is to take effect upon a future event, it shall be considered that the testator had in view all those of the class to which he intended his bounty, who should be capa ble of taking when the event happens.” It is difficult to ascer tain, from this short and imperfect report, what were the grounds of this decision. If it was decided upon the supposed intention of the testator, there seems to be no good reason why the same persons should not be entitled to the personal as well as the real estate; for the codicil disposed of both in the same words.

If however it was decided on the distinction between the other clauses in the will, the remainder of the real estate being vested, and that of the personal estate being contingent, then it seems clear that the question, as to the transmissibility of a contingent remainder or executory devise, was not argued or suggested in the argument of the cause; and it is not surprising that it should have been overlooked by the court. Most certainly the court did not intend to overrule the numerous English cases on this point; for if they had so intended, unquestionably the principle "would have been fully discussed, and the reasons therefor assigned. So far from intimating any such intention, the court profess to decide the case on a “ principle extracted from the cases in the books.” In regard to the present question, therefore, the decision in that case can have but little weight. And in all the other cases, cited by the defendants' counsel, this question is not decided nor raised. Some reliance is placed on a dictum of Chief Justice Parsons in Dingley v. Dingley, 5 Mass. 537, which is repeated in another case. This dictum however is not supported by the English authorities cited by the plaintiff’s counsel, and the case of Shattuck v. Stedman is directly opposed to it. In that case, the testator bequeathed to his niece the interest of $ 1000 during her life, and at her decease the principal sum to be equally divided among her children, and payable to them at the respective ages of 21 years with interest. A son of the niece survived the testator, but died before his mother. And it was held that he took a vested legacy. But the dictum of Chief Justice Parsons is not material in the present case. He says, that in such a case the legacy would be contingent, so as to let in after-born children; but he does not say or intimate, that if one of the devisees of a remainder of a chattel, after a devise to another for life, should die before the devisee for life, his share would not go to his execu tor or administrator. The question is not whether by the devise to the children of Mrs. Winslow they took a vested or a contingent remainder, for undoubtedly the remainder to them was contingent before the death of their mother, so that the law, as laid down by Chief Justice Parsons, has no application to the question now under consideration. The decisions of the court in Dingley v. Dingley, and in Shattuck v. Stedman, are authorities in support of the plaintiff’s counsel’s construction of the will in the present case.

In the case of Blanchard v. Brooks, the question was whether a contingent remainder would pass by way of estoppel by a deed of conveyance with warranty. The question now under consideration was not raised or alluded to in the decision of that case. It was declared, it is true, that a contingent remainder was not assignable at law, except by way of estoppel. But it is well settled, that a possibility coupled with an interest is assignable in equity, and is devisable and transmissible, as clearly appears by the authorities already cited. 3 T. R. 88. Fearne, (7th ed.) 369.

In Emerson v. Cutler, 14 Pick. 108, it was held that the devise of the real and personal estate to the testator’s children, after the decease of their mother, gave a joint interest in the personal estate, and so the survivors took the whole on the death of one of the children. In Dixon v. Picket, 10 Pick. 517, the devise was to the testator’s wife for life, and afterwards to all her children who should be living at her decease; and the case of Hancock v. Hancock was decided on a similar devise.

From the examination of these authorities, it will be perceived how little ground there is for maintaining that the law of this Commonwealth, as to the question under consideration, has been settled in opposition to the law of England. There is no case but Denny v. Allen, 1 Pick. 147, from which any such inference can be made; and the decision in that case, for the reasons already given, must have little weight against the current of the English authorities, on a question which was only incidentally involved, and which does not appear to have been argued or deliberately considered. Notwithstanding that case, therefore, we consider the law, as laid down in the English cases cited, to be the unquestionable law of this Commonwealth ; and it is clearly confirmed by our statutes of descent and distribution. ,

By St. 1805, c. 90, § 1, it is provided “ that when any per son shall die seized of any lands, tenements, or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, the same shall descend,” &c. In the second section, a similar provision is contained in respect to personal property. These provisions are reenacted in the Rev. Sts. c. 61, § 1, and c. 64, § 1.

In the case of Cook v. Hammond, 4 Mason, 467, it was decided, after a very able discussion of the question as to the construction of the first provision in the St. of 1805, c. 90, that remainders and reversions, vested by descent in a person who may die intestate, descended to his heirs, in the same mannet as estates in possession. No question was raised, in that case as to contingent remainders and executory devises. But the statute makes no distinction between vested and contingent remainders; and there seems to be no reason for any such distinction, especially as no distinction in the law existed before the statute. The language of the statute is unambiguous. If an intestate is entitled to any interest in real or personal estate, vested or contingent, it will pass by force of the statute to his heirs or administrator, in the same manner as estates in possession.

As to the remaining question, we think there can be no doubt that the plaintiff is entitled to the share of Caroline L. Winslow, who survived her mother. On the death of the mother, as before remarked, the equitable estate vested in the minor children ; the legal estate being in the trustees for their support and education until they should respectively arrive at full age. Their arriving at that age is not a condition, or the contingency, on which their shares were to vest, but is the time designated when the trust was to cease, and they to beccme entitled to possession

We are therefore of opinion, upon the whole matter, that the plaintiff is entitled to the shares of his three children who have died without issue, and that a decree in his favor is to be entered accordingly.