In re Trust Under Will of McFadden

EAKIN, Judge,

dissenting:

The issue is what testator intended by the phrase “to my descendants then living in equal shares, per stirpes upon the principle of representation.” The “descendants then living” are seven grandchildren, of this there can be no dispute. The specific question is this: do his “descendants then living” get equal shares, or do they divide the shares of now-deceased parents? I cannot agree the intent of the testator was to distribute only the number of shares equal to the number of children he had, a proposition necessary to the majority’s conclusion; hence I am constrained to dissent.

The majority finds “in equal shares” means one-half per long-deceased child, with “per stirpes” compelling the division of one such half into six smaller parts. I believe “my descendants in equal shares,” if it means anything, must mean equally between all grandchildren, and that “per stirpes” refers to distribution of the share of any predeceased grandchild. It is true the per stirpes phrase modifies “my descendants then living in equal shares,” but it does not change who those “descendants then living” are. They are his grandchildren, not his children.

As Barclay’s plan for final distribution could not take effect until long after his children were deceased, there is no reason to conclude he wished them at the head of the stirp. If he wanted to divide his family in two, as the majority finds, his scheme would have said so. He would have used the same language he used for distribution of the income where he did just that; there, he speaks of “children” and “to each child and descendant of a deceased child.” He specifically enumerates the process for income, “subdividing the shares falling to descendants of deceased children among them per stirpes.”

Contrast the language for determining to whom is made distribution of the principal: “my descendants then living.” He did not repeat “descendants of deceased children,” the scheme used for income; had he done so, I would agree with the majority. Instead, he chose the specific, and distinctly different term “my descendants then living,” which change is not to be ignored.

Once a generation of surviving descendents is found, it is only natural to treat them equally, not disparately because of the volume which came from an individual parent. If one grandchild were deceased, it would be natural to divide that share among their heirs, as we have reached a different level; this reasoning has long existed in our intestate laws, and while intestate law doesn’t control, its logical scheme is there for good reason. I see no reason to interpret into this will an intent to go to a now-vacant class of descendants, clearly referenced in distribution of income but not referenced at all in the distribution of principal, especially when this interpretation causes a disparate result.

Testator knew that his children would be deceased at the time of distribution of principal. Unlike income, distribution of principal could not occur until they were 21 years gone, at least. For income, he chose to head the stirp with his children, a wish that makes sense. For the final distribution of principal, a different matter altogether, he chose to head the stirp with his “descendants then living” which happened to be his grandchildren. That also makes sense, and that wish should be honored.

If testator wanted to give Christmas presents to his descendants now living in equal shares, would he give equal presents to each of the seven grandchildren, or would he give one to each of his son’s children and six to his daughter’s child? Is this the natural presumptive result? Whether he contemplated grandchildren or great-grandchildren, I find his purpose was clearly to treat them equally, putting them and not his deceased children atop the stirp.

While the position of the majority is a thoughtful one, I cannot find it to reflect the intent of this testator, and must dissent.

FORD ELLIOTT, J., joins.