Phyfe v. Phyfe

The Surrogate.

The testator gave his wife the use of all his estate for life, and on her decease or marriage directed the property to be sold, and after the payment of his debts, the residue of the proceeds to be divided into eight equal parts. He then provided, that in case his wife should re-marry, one-third of the proceeds of the estate should be invested for her benefit for life. By the next clause he gave “ one eighth part of the residue of the proceeds” of his estate to his son, “ Isaac M. Phyfe, and to his legal representatives and by the next five clauses, “ one other eighth part” of his estate to each of several sons “ and his legal representatives” and “ the two remaining eighth parts” he required to be invested for the use of his son, D. W. Phyfe. The next article ran in this way: “ Twelfthly. From and after the decease of my said wife, it is my will and desire, and I do hereby direct that the share or proportion of my said estate so directed to be invested for the use and benefit of my said wife, during her natural life, be equally divided between all my said sons, except my said son Daniel Watson Phyfe, for whose use and support provision has already been made, in manner hereinbefore mentioned, and the legal representatives of such of them as shall be living at the time when such distribution ought to be made, share and share alike; the legal representatives or children of my said sons to be entitled to receive such part only as the parent would have been entitled to receive if living at the time when such distribution ought to be made.”

The testator died in 1827, leaving surviving him his widow and seven children. William, one of his sons, died in 1842, and the widow died in 1845, without having married.

The first question that arises relates to the construction of the bequest to “ William and his legal representatives.” It must be observed here that the conjunctive term “ and” forbids the idea that the gift was intended for W., “ or” in case of his death, “ his legal representatives.” A legacy in the alternative to “ A, or his issue,” to “ A, or his legal representatives,” may denote that succession or substitution was intended. But a legacy to “A, and his legal representatives,” contains words of limitation, and not of succession or substitution. The cases in which “ legal representatives” have been construed as intending “ next of kin,” are cases where the decease of the legatee was contemplated, and his representatives were to be substituted. (2 Jarman on Wills, 42, 1 Roper, 128, Williams on Ex'rs., 970), or where the first taker had only a life estate or qualified interest. The word “ or” generally speaking implies substitution, so as to prevent a lapse; but here the term “ and” is used, and cannot be capriciously changed. I am therefore of opinion that the legacy given to William by the eighth clause of the testator’s will, vested in William absolutely on the testator’s decease, was not divested by William’s death, but passed to his executor or administrator.

The will is very obscurely expressed, but the intention to limit the interest of D. W. Phyfe to two-eighths of two-thirds of the estate is most clearly indicated in the twelfth clause. He is directly excluded from any share of one-third, directed to be invested, in case of the marriage of the widow; and that one-third is given among the other sons. It is true that this clause is constructed on the hypothesis of the marriage of the widow, but almost the entire will seems to be constructed on the same hypothesis; and if it is to be construed literally and strictly, might end in results far different from the testator’s design. I must therefore adhere to the general intent, so far as it can be gathered. The one-third which is the subject of the twelfth clause, is directed to be divided among the testator’s sons (except D. W. Phyfe), “ and the legal representatives of such of them as shall be living at the time when such distribution ought to be made, share and share alike ; the legal representatives or children to receive such part only as the parent would have been entitled to receive if living at the time when such distribution should have been made.” The words children and parent being correlative terms, and children being used convertibly for legal representatives—the substitution here intended was that of the children, and not the next of kin of the deceased son. (Barstow vs. Goodwin, 2 Bradford R., 417.) But on the other hand, the whole clause shows an intention to give to the sons who should be living and the legal representatives of such as should not be living—meaning by legal representatives, children. There being no children of William, his share has either lapsed, or devolved on the other legatees. It has not devolved on the other legatees, because they take as tenants in common, and consequently it must be distributed among the testator’s next of kin living at his decease, and their legal representatives, as in case of intestacy.