Judges： Read
Filed Date： 6/25/1866
Status： Precedential
Modified Date： 10/19/2024
The opinion of the court was delivered, June 25th 1866, by
The former of these cases has reference to the real estate of the testator, John R. Neff, and the latter to the distribution of his personal property, and as both were argued together, they will be considered together in this opinion.
The general rule at common law was that lapsed devises of real estate went to the heirs at law, whilst lapsed legacies of personal estate went to the residuary legatee. In the present cases this distinction becomes immaterial, for the question relates to a part of a residuary devise and legacy failing or lapsing by the death of the residuary devisee and legatee before the testator.
On the 22d April 1850, the testator made his will, in which he gave to his granddaughter, Mary Williams, $10,000. This amount was given to his executors in trust to pay the interest to her for her sole and separate use, the principal to be paid to her on her arrival at the age of twenty-one years. Should she marry before she arrives at that age, to be paid to her at the time of her marriage ; and in case of her death before she marries or arrives at the age of twenty-one years, then to divide the same, share and' share alike, between my sons, William P., Charles, James P. W. and John R. Neff, and any child or children that may be hereafter born.
He then gave certain annuities to two of his sisters, and charged the same and the legacy to his granddaughter on certain of his real estate. Then follows the residuary clause in these words: “ Item: The rest (that is all), residue and remainder of my estate, real, personal and mixed, whatsoever, I give, devise and bequeath to my sons, William P. Neff, Charles Neff, James P. W. Neff, John R. Neff, and any child or children that may be hereafter born, in equal shares as tenants in common.”
He then appointed his sons, naming them, and his confidential friend, Alexander Boyd of Philadelphia, his executors.
On the 30th July 1851, by a codicil, he said: “ My intention is, that all my executors above named act without reference to any law or laws of the states where my property lies, without giving security;” and on the 10th of October 1857, by another codicil,
This codicil republished his will as of that date (Neff’s Appeal, 12 Wright 501), one of the residuary devisees and legatees. James P. W. Neff died before the testator on the 24th September 1855, the testator dying on the 24th July 1863. His daughter Jane Bird Yfilliams died before the date of her father’s will, on the 28th March 1850 ; and his three sons and his granddaughter, who survived him, were his only heirs and next of kin.
The introduction of the provision as to after-born children is made necessary by the 15th section of the Wills Act of 8th April 1833, by which, if such children were born after the date of the will, the testator would die intestate as to such children, and all its provisions would be rendered nugatory, so far as regarded the purparts of such children.
There having been no such after-born children, the will is to be construed as if no such provision had been necessary, and the clear words of the clause give to each son one-fourth part or share as a tenant in common. There is no survivorship, for it is not given to his sons as a class, but to them and each by Ms own name; as the term sons simply identifies the individual persons meant: Hawkins on Wills 113; 1 Jarman 187. When, therefore, one son dies before his father his one-fourth must lapse, because there is no further provision in the will; and if so, that share or purpart vests in the heirs and next of kin of the testator, who dies as to this one-fourth part or share intestate.
But it is supposed that our Wills Act has made some alteration in the common law in this particular. It is proper, therefore, to examine into the circumstances under which this act was framed and passed, and its proper construction.
The revisors of our acts were appointed by Governor Wolf under a resolution of the legislature of the 23d March 1830, and their first report was read in the Senate on the 2d February 1831. Their second report was dated 1st March 1832, and was read in the Senate on the 7th of the same month, and included the Wills Act with the revisors’ remarks drawn by Judge Joel Jones. This draft was substantially adopted by the legislature, and forms the Act of 8th April 1833, with some slight verbal alterations.
The revisors speaking of the 9th section say: “ The 9th section coincides with the improvement made in this respect by many of our sister states; and has been introduced from a belief that the intention of a testator has often been defeated by the omission of words of inheritance in a devise of real estate.” The 10th section, which provides for after-acquired real estate, is thus spoken of: “ In the 10th section we have proposed an alteration
The 11th and 12th sections, relating to the widow’s right of election, and lapsed legacies, are copied from the 10th section of the Act of 4th April 1797, and the Act of 10th March 1810. The various alterations made by subsequent legislation are to be found in Brightly’s Purdon, 9th ed., p. 1016 to 1018.
The alteration therefore, by the Wills Act, was to allow real estate acquired by a testator after making his will, to pass by a general devise, which has no bearing on the question before us, as all the real estate which was the subject of the devise was acquired before the date of his will, and no alteration is made as to the operation of a will of personal estate.
Chancellor Kent’s first edition of his fourth volume of his Commentaries was published in 1830, and the whole subject of wills in England and America is discussed in the 47th Lecture from pages 497 to 527, giving a general view of the alterations made or proposed to be made in this country. This book was in the hands of the revisors, and no doubt formed the principal source of their information of the codes or laws of the different states, and particularly of New York, which had just codified their system in relation to wills.
The New York Act (2 Rev. Statutes 57), chapter 6, title 1, article 1, § 5, enacted that “ every will that shall be made by a testator in express terms of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death see Lynes v. Townsend, 6 Tiffany (33 N. Y.) 558, September 1865. The 52d section of 3d Article, Id. p. 66, provided against devises or legacies to a child or descendant of the testator dying in his lifetime, lapsing if he died leaving a child or other descendants surviving the testator, and the word heirs is not necessary in a grant or devise to create or convey an estate in fee: 1 Rev. Stat. 740, § 1; 4 Kent’s Com. 522.
By the 3d section of chapter 62 of the Revised Statutes of Massachusetts 1836, p. 417, wlíích, with one verbal alteration, is section 4 of chapter 92 of the Revised Statutes I860, p. 476, it is enacted: “ Any estate, right or interest in lands acquired by the testator after making his will shall pass thereby in like manner, as if possessed at the time of making the will, if such (shall) clearly and manifestly appear by the will to have been the intention of the testator.” The next section provides that every devise of land in wills made after the statute shall be construed to convey all the estate of the devisor which he could lawfully devise.
The 3d section has been the subject of judicial construction, and in the cases of Cushing v. Aylwin, 12 Metc. 169, Pray v. Waterston, Id. 262, Brimmer v. Sohier, 1 Cush. 118, and Winchester v. Forster, 3 Id. 366, it has been held to extend to and operate upon a will executed and published before the statute took effect. By the same act, provision is made to prevent lapse, if the devisee leaves issue who survive the testator. On the 22d February 1850, the legislature of Maryland passed an act “ That every last will and testament executed in due form after the 1st day of June next, shall be construed, with reference to the real estate, and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intent shall appear by the will.” This act has been the subject of judicial construction in Carroll v. Lessee of Carroll, 16 Howard 275, and it was held that lands acquired by the testator after his will in 1837, did not pass, although he died after the passage of the act, which is copied from the English Statute of Wills.
In New Jersey, by an Act of 1784, devises of lands pass a fee, if not intended to convey only an estate for life, although the word heirs is omitted, and by an Act of 1824, devises or legacies to children or descendants do not lapse if they leave surviving the testator, children or descendants; and by the Act of 12th March 1851, “ Real estate acquired by a testator after making his will shall pass by any general or special devise.”
The English Wills Act of 7 Will. 4 & 1 Vict. c. 26, of the 3d July 1837, grew out of the recommendations and propositions contained in the fourth report, made by the commissioners appointed to inquire into the law of England respecting real property, and ordered by the House of Commons to be printed, 25th April 1833. The 3d and 24th sections enact: “That every will shall be construed, with reference to the real estate and personal
The remarks of Mr. Jarman upon this statute are applicable to all the American acts above stated. “ It will be remembered,” says he, “ that the enactment which makes the will speak from the death relates to the subject-matter of disposition only, and that it does not in any manner interfere with construction in regard to the objects of gifts; as to whom therefore the doctrines discussed in the present chapter respecting the period at which the will speaks, or at which the objects are to be ascertained remain in full force even under a will, the period of whose execution or republication brings it within the new law 1 Jarman on Wills, 3d edit. p. 313.
Then, as to republications of wills, the same learned writer says, Id. p. 187: “ If the residuary devise itself has lapsed, of course the republication of the will is inoperative to impart new efficacy to the devise as where the lapse affects an aliquot share only of the residue, or where it embraces the entirety. Thus if a testator devise the residue of his lands to A., B. & C., as tenants in common in fee, and A. dies, and then the testator makes a codicil to his will, by the effect of which the will is republished, he would nevertheless die intestate as to one-third, since the subsisting devise, which originally embraced two-thirds only, would never by the mere effect of the republication be expanded into a gift of the entirety.”
“ It is to be remembered, however, that with respect to the objects of gift, the recent statute leaves the pre-existing laws untouched.” .
The positions taken by Mr. Jarman in relation to the effect of the statute as to the objects of gifts, are supported by all the authorities. In Lightfoot v. Burstall, 33 L. J. Ch. 188, V. C. Wood, assuming the doctrine of Humble v. Shore, 7 Hare 247, by V. C. Wigram, whose opinion is given at length in the note, says, “ that in the events which happened there was an intestacy as to one-third of the residuary real and personal estate, and that so much as consisted of personalty would go to the next of kin, and so much as consisted of real estate to the heirs at law, such heirs to take the same as personal estate.”
In re Chaplin’s Trusts, Id. 183, a testator by will gave the residue of his property to all and every the children of R. B. and B. B. who should be living at his decease, and to ten other persons
The same doctrine is affirmed by V. C. Kindersley, in Hoare v. Osborne, Id. 586, where a gift of residue by will to “ the persons hereinafter appointed my executors in equal shares” was held to be a gift to those persons as individuals, and the language of the same learned judge in Hand v. North, Id. 556, is worthy of notice where there is a tenancy in common of the grandchildren. V. C. Wood, in Peacock v. Peacock, 34 L. J. Ch. 315, affirms the same rule where one of the five residuary devisees, a tenant in common, dies in the lifetime of the testator.
In Bullock v. Bennell, 24 L. J. Ch. 512, decided on the 12th June 1855, the lords justices, overruling V. C. Wood, at p. 397, held that the 24th section of the Wills Act, 1 Vict. ch. 26, which enacts that a will is to be construed to speak as if executed immediately before the death of the testator, does not apply to the objects of a testator’s bounty who are to take the real and personal estate comprised in the will.
There can, therefore, be no doubt that Mary Jane Williams is entitled to one-sixteenth part of the real and personal estate of her grandfather, that being the amount as one of his heirs and next of kin, which she 'takes in consequence of the lapse of the residuary devise to her uncle, James P. W. Neff, of one-fourth part, he having died before his father.
This does not in any manner affect or impair the decision in Patterson v. Swallow, 8 Wright 487, which is sound law (see Wigram on Wills, 4th ed. 99) : Taylor v. Richardson, 23 Eng. L. & E. 178; Miller v. Travers, 8 Bing. 244, per Tindal, C. J., 21 E. C. L. R.
In the first case, therefore, the judgment is affirmed, and in the second, the decree of the Orphans’ Court is affirmed at the costs of the appellants.
The Chief Justice dissented.