Newbold v. Boone

The opinion of the court was delivered, March 19th 1866, by

Agnew, J.

Jacob Seitzinger Souder, son of Ann Ellen Souder, a deceased daughter of Jacob W. Seitzinger, the testator, died a minor, unmarried and intestate — leaving his sister, Mary Agnes Souder, now Newbold, and his father, John K. Souder, surviving him. This question is, what becomes of his share under the will of his grandfather, the testator. Mrs. Newbold claims it all under the last paragraph but one of the will, and the trustee claims it for the children and grandchildren under the fifth paragraph preceding the last. The last-mentioned paragraph reads thus;—

“ If any or either of my said children, or two last-named grandchildren (the children of Mrs. Souder), shall die without issue living at his, her or their respective deaths, or leaving issue then living none of whom shall live to attain the age of twenty-one years, then and in every such case it is my will that the shares or portions of my estate of him, her or them so dying, shall go to increase the said shares of my other children (except my daughter Elizabeth) and two last-named grandchildren, in the last-mentioned proportions; that is to say, the share of such of my said children (other than Elizabeth) to be twice as great as those of my said two grandchildren, the children of my deceased (laughter, under and subject in such cases to the same respective trusts and limitations hereinbefore expressed and declared.”

The other paragraph (last but one in the will) reads thus:—

“ It is my will that the subject of all and every devise and bequest, specific, particular, general or residuary, hereinbefore contained, to or in trust for or in favour of any child or children or issue of my deceased daughter, Ann Ellen Souder, shall upon the death intestate of any such child or issue of the said Ann Ellen in the lifetime of her husband, John IÍ. Souder, pass to and vest in such person or persons and for such estate or estates, as would then have taken or been entitled to the same, if my said deceased daughter had lived until then, and had then died the absolute owner of the same, a widow and intestate.”

If these clauses are in irreconcilable conflict, we are compelled to adopt the latter as the latest expression of the testator’s mind: German v. German, 8 Casey 116 ; Stickel’s Appeal, 5 Id. 234 ; Mutter’s Estate, 2 Wright 321. But this is a result never to be submitted to if it be possible to give effect to both clauses consistently with the main design of the testator. We must therefore explore the entire volume of the will to reconcile them if we can. We think this can be done. After having gone through with his whole very large estate, making the almost numberless provisions contained in this voluminous will, filling twenty printed pages, and closing it up by making the general provision for deaths among his children and grandchildren found in the former paragraph, he had one thing yet to provide for, which permeated the entire plan, and in certain contingencies would frustrate his design.

It was his misfortune to know, or at least believe (from the statement of counsel it may have been a mistake), that his elder children were illegitimate, and he therefore proceeds to say — “ I desire, and it is my will, that, so far as it may be legally practicable, my family shall, after my death, stand on the same footing as if I had been formally married to my said wife before the birth of any of our said seven children.”

This was his difficulty — he had provided for the deaths of his children and grandchildren, and of their issue, who should not live to the age of twenty-one ; but if the issue of deceased children or grandchildren should reach that age, the estates given would vest in them absolutely, and if such issue should after-wards die without issue, the parent being illegitimate and by law not of his own blood, the estate could not return into his own family, but must either escheat for want of inheritable blood, or pass into a new line of the blood of the last owner, but not of the blood of the testator. This was the relation in which John K. Souder stood to his own children.

It appears from the will that all of his children were minors excepting Margaret Adelia Jones and Mary Agnes Souder, both of whom had married and had children. Mrs. Souder, being either the first or second child, was doubtless one of the supposed illegitimates. Being dead, the devises and bequests were directly to her children, who by her illegitimacy became a new stock as the first perquisitors. In case of their death leaving issue who should attain the age of twenty-one, the estate then vesting in such issue absolutely, and they dying without issue, it would then not be governed -by the former paragraph, but would .escheat or go to John K. Souder, if alive, or his issue if dead, as the next of kin of the new stock dying seised. The testator therefore proceeds in the two sections next following (the second of which is the last but one of the will already quoted), to provide for the difficulty. He begins by saying — “ So far as the rules of law against what are legally denominated perpetuities may permit, I desire to prevent the possibility of. the occurrence of any escheat of my estate, real or personal, which would not have occurred or taken place if all my said children had been born in wedlock.” He then provides for the continuation of the estate in the children and grandchildren and their issue “ until twenty-one years after the death of the longest-lived of them, and only such issue of them or any of them who may be living at his death;” and concludes by providing that their estates “ shall then and thereupon pass to and vest in such person or persons as would then have been entitled to the same if all my said children had been begotten by me of my said wife after our marriage, and as if I had lived until such time or times and had then died the owner of the same.”

Thus by his will he made himself the stock from whom the estate came, to govern its passage by' force of the will adopting the provision of the intestate law as to the illegitimates, to whom the devises and bequests were mad.e; but as there was no devise or bequest to Mrs. Souder, she being dead, and the estate went under the will directly to her children; the doubt arose whether the paragraph just finished was sufficient to provide for the estate of his grandchildren, he being the propositus and Mrs. Souder the illegitimate link between him and them. Hence, in the next paragraph, to prevent John K. Souder, the father of Mrs. Souder’s children, who by her illegitimacy became a new stock as perquisitors, from carrying the estate into a new line of descent, he provided that if the children of Ann Souder or their issue should die in the lifetime of John K. Souder, the subject of their devises and bequests should “ pass to and vest in such person or persons, and for such estate or estates, as would then have taken or been entitled to the same, if my said deceased daughter (Ann Souder) had lived until then, and had then died the'absolute owner of the same, a widow and intestate.”

Thus, by making her the stock from whom the descent should be east, by force of the terms of the will, he prevented the estate from passing out of the line of her blood, in case the issue of her children, having lived to take the estate absolutely by arriving at twenty-one years of age, should die without issue in the lifetime of John K. Souder. That this paragraph I have just considered is a part of the provision against the effects of the illegitimacy of some of his children, appears on the face of the will itself; for in the next and last paragraph the testator expressly links the three preceding paragraphs together, and declares that their provisions shall not prevent alienation by deed or will of the several devisees and legatees.

There are other considerations arising from the language and effect of the last paragraph but one, which are convincing that its purpose was not to create a new limitation of the estates of his grandchildren, in direct conflict with what had gone before.

This will was written by an eminent lawyer, and from its whole tenor we discover that its language is precise, technical and well weighed. Now, if he intended that on the death of one of Mrs. Souder’s children his or her share should go to the survivor, how natural and easy to say so, instead of the most singular circumlocution (this being the design) of saying it should pass as if Mrs. Souder had lived to take it, and had survived her husband, John Souder. Notice also, he says the subject of the devises and bequests hereinbefore contained shall pass and vest. Not as if he intended something new, but that what he had already done should go on in a certain way, in case John K. Souder is alive at the time; that it shall pass just as if he were dead. Notice also, that he refers not only to the children of Ann Souder, but her issue also, manifestly not tautologically, but referring to air indefinite time of issue, a purpose comporting entirely with an intention to provide, as far as the law against perpetuity would let him, to remove the obstacle caused by her illegitimacy. It is argued against this, that his design was to preserve equality among his descendants, which the former paragraph would defeat, by giving the share of a deceased grandchild over to its aunts and uncles in shares doubly larger than that of the surviving grandchild. But this argument runs against the fact, that such is the expressed intention in the former paragraph, which must prevail if John K. Souder die first. What motives had he for the singular provision, that if he died first the estate of the grandchild should be divided among uncles and aunts and the survivor, but if he were alive then the share should pass to the surviving grandchild ? This was as much as to say to the survivor, If your father be alive you shall have your deceased brother’s or sister’s share ; but if he, your natural protector, be dead, and no longer able to aid and care for you, all this share shall pass from you but a trifle. If that be the design, it exhibits the testator as capricious, changeable and acting without motive. But when we notice that the testator treats the latter clause as one of three in pari materid, and that this illegitimate being cut off by law from his blood, his estate would, after vesting in the issue of his devisees and legatees who attained majority, pass out of the former clause) reading only issue dying underage), and that by operation of the bastardy it would pass into a new line of descent, or else escheat, we can readily comprehend the effect intended by the latter clause.

The clauses being therefore reconcilable, the estate passes under the former, and the judgment must be affirmed.