pass to his issue or heirs. There is a conflict of authority as to the effect of such statutes. Some decisions hold that the general common law rule with reference to the right of survivorship in gifts to a class is not affected by these statutes for the reason that they are only intended to prevent a lapse in the event of a beneficiary dying before the testator, and have no application to gifts to a class where the legal effect is only to pass a benefit to the members of a class in existence at a designated time.19 The weight of authority, however, favors the rule that such statutes are applicable to gifts to a class as well as to individuals. The reason for the rule is that such statutes are remedial and should receive a liberal construction; and that the testator is presumed to know the law and that his will is drawn accordingly.20 § 875. The Same Subject: Circumstances Considered. The circumstances of the case may furnish an additional reason to the principle last mentioned. For instance, if the gift is to a class such as children, brothers or sisters, and the members of the class are all adults and well known to the testator at the time of the execution of 19 Olney v. Bates, 3 Drew. 319; Browne v. Hammond, Johns. 210; In re Harvey's Estate, (1893) 1 Ch. 567; Martin, v. Trustees of Mercer University, 98 Ga. 320, 25 S. E. 522. 20 Raymond V. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688; Downing v. Nicholson, 115 Iowa 493, 91 Am. St. Rep. 181, 88 N. W. 1064; Nutter v. Vickery, 64 Me. 490; Moses v. Allen, 81 Me. 268, 17 Atl. 66; Bray v. Pullen, 84 Me. 185, 24 Atl. 811; Howland v. Slade, 155 Mass. 415, 29 N. E. 631; Strong v. Smith, 84 Mich. 567, 48 N. W. 183; Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546; Parker v. Leach, 66 N. H. 416, 31 Atl. 19; Pimel v. Betjemann, 183 N. Y. 194, 5 Ann. Cas. 239, 2 L. R. A. (N. S.) 580, 76 N. E. 157; In re Bradley's Estate, 166 Pa. St. 300, 31 Atl. 96; Jones v. Hunt, 96 Tenn. 369, 34 S. W. 693; Wildberger v. Cheek's Exrs., 94 Va. 517, 27 S. E. 441. his will, the fact that the beneficiaries are not mentioned by name should not defeat the application of the statute.21 Especially would this be so where the circumstances are such that the class could not be increased, and the members are to share equally. Under simple gifts to a class the number who take is determined at the death of the testator or at a future time specified in the will; This uncertainty would be practically eliminated under the above circumstances.22 In such a case the burden of showing that the statute to prevent lapse did not apply would be upon the one asserting such claim and this is so even though the testamentary gift was prompted because of personal regard for the beneficiaries. To prevent the application of this rule it would be necessary to show further that the testator did not intend that the heirs of the beneficiaries should take under the statute.28 However, the intention of the testator will control and the rule will always yield to such intent.24 § 876. Members of Class Dying Before Testator, Are Excluded. A legacy or devise in favor of a class does not include those persons dead at the date of the execution of the will who, had they survived, would have fallen within the description of the class. This rule always prevails in the absence of something in the will or surrounding circumstances showing a different intent.25 The rule is the same 21 Woolley v. Paxson, 46 Ohio St. 307, 24 N. E. 599. 22 Strong v. Smith, 84 Mich. 567, 48 N. W. 183. 23 Rudolph v. Rudolph, 207 Ill. 266, 99 Am. St. Rep. 211, 69 N. E. 834. 24 Bigelow v. Clap, 166 Mass. 88, 43 N. E. 1037; White v. Massachusetts Institute, 171 Mass. 84, 50 N. E. 512; Almy v. Jones, 17 R. I. 265, 12 L. R. A. 414, 21 Atl. 616. 25 Morse v. Mason, 11 Allen (Mass.) 36; Merriam v. Simonds, 121 Mass. 198; Howland v. Slade, as to members of the class who die before the death of the testator, although they were living at the date of the execution of the will.26 The reason for the rule is that if a beneficiary die before the testator, the will taking effect as of the testator's death, he does not fall within the class to whom the testator gives his property. Such result is a matter of the construction of the will.27 And where the will makes a gift to named persons, and also to members of a class living at a designated time, if no members of such class are then living there is in effect no gift to them, but it passes to the other beneficiaries who can take.28 155 Mass. 415, 29 N. E. 631; White V. Massachusetts Institute, 171 Mass. 84, 50 N. E. 512; Stires v. Van Renssalaer, 2 Bradf. (N. Y.) 172; Wescott v. Higgins, 42 App. Div. 69, 58 N. Y. Supp. 938; affirmed, 169 N. Y. 582, 62 N. E. 1101; In re Hunt's Estate, 133 Pa. St. 260, 19 Am. St. Rep. 640, 19 Atl. 548; In re Harrison's Estate, 202 Pa. St. 331, 51 Atl. 976. 26 Thomas v. Thomas, 149 Mo. 426, 73 Am. St. Rep. 405, 51 S. W. 111. 27 Davie V. Wynn (Dane v. Wynn), 80 Ga. 673, 6 S. E. 183; Tolbert v. Burns, 82 Ga. 213, 8 S. E. 79; Pimel v. Betjemann, 183 N. Y. 194, 5 Ann. Cas. 239, 2 L. R. A. (N. S.) 580, 76 N. E. 157. To the same effect is Downing v. Nicholson, 115 Iowa 493, 91 Am. St. Rep. 175, 88 N. W. 1064, where the court conceded that if the gift had been to an individual by name, the decision would have been different. In that case it was held that a devise to a class, one of the members of which is Idead when the will is executed, can not operate for the benefit of his heirs, though the statute of the state declares that if a devisee dies before the testator, his heirs shall inherit the property devised to him, unless, from the terms of the will, a contrary intent is manifest. Therefore, a devise to the testator's nephews and nieces can not benefit a son of a niece who died long before the will was made. But see Cheney v. Selman, 71 Ga. 384, where it was held that a legacy to one dead at the time of the execution of the will was not void, but passed to his issue. 28 A testatrix left the residue of her estate to be divided in equal shares among "such of the children of" her deceased uncle as were living at the date of her will and sundry other persons whom she named, and there proved to be none of her uncle's children living at that time. The question arose whether the share given the § 877. Where Beneficiaries Are Designated Both by Individual Names and as a Class. Gifts to individuals designated by name, although referred to as a class, such as the children of A, and although in fact constituting a class, are nevertheless individual gifts.29 And although the gift be made by words which, used alone, would create a gift to a class, if followed by words equally operative whereby there is given a devise or bequest to the beneficiaries by name and in definite proportions, the law will infer individual gifts.30 Thus, where the testatrix, after naming the resid children lapsed to the next of kin of the testatrix or was to be divided among the other persons named as co-legatees. It was argued for the next of kin that the gift was not to a class, but to a number of persons nominatim, and that by the death of any of them, their portions lapsed, citing In re Chaplin's Trust, 2 Week. Rep. 147. But the court held that the whole residue was devisable among the other persons named, not, however, by way of exception to the general rule as to lapse, but on the ground that the devise being to "such as" were then living, and there being none such, there was in effect no gift to the children, but only to the persons named.Spiller v. Madge, 18 Ch. Div. 614, following In re Hornby, 7 Week. R. 729, where a testator bequeathed his residue to A, B, C and D, if living, and D being dead at the date of the will, it was held that the gift to him was contingent upon his being alive, and the whole bequest went to A, B and C. To the same effect, see Widgen v, Mello, 23 Ch. Div. 737; Christopherson v. Naylor, 1 Mer. 320. 29 Barber v. Barber, 3 Myl. & C. 688, 697; Estate of Hittell, 141 Cal. 432, 435, 75 Pac. 53; Moffett v. Elmendorf, 152 N. Y. 475, 57 Am. St. Rep. 529, 46 N. E. 845. Where the testamentary gift was "unto my three sisters, Mary, Anna and Louisa," it was held that the beneficiaries named took as tenants in common, and not as a class, and the death of one of the sisters prior to that of the testator caused the devise to her to lapse. Matter of Kimberly, 150 N. Y. 90, 44 N. E. 945. To the same effect, see Matter of Wells, 113 N. Y. 396, 10 Am. St. Rep. 457, 21 N. E. 137. 30 In re Murphy's Estate, 157 Cal. 63, 137 Am. St. Rep. 110, 106 Pac. 230; Moffett v. Elmendorf, 152 N. Y. 475, 57 Am. St. Rep. 529, 46 N. E. 845. But see Hoppock v. Tucker, 59 N. Y. 202. mary legatees, adds "all brothers of my deceased husband J. B.," the beneficiaries take as individuals and not as a class.31 A gift to "hereinbefore" or "hereinafter mentioned legatees" is not a gift to a class, the words of reference being merely to save repetition; the construction must be the same as if the repetition of the names were actually made.32 And the idea that the testator intended that the members of a class should take jointly may be negatived by a provision in the will that the shares of deceased members of the class shall go to their children.33 The above mentioned rule, however, is only a rule of construction and no conclusive inference can be drawn, since the intention of the testator must control.34 The character of the gift depends upon the language employed in the will.35 Although the gift may be to several persons 31 In re Barret's Estate, 132 App. Div. 756, 63 Misc. Rep. 484, 116 N. Y. Supp. 756. To the same effect, see Estate of Hittell, 141 Cal. 432, 435, 75 Pac. 53. The rule that intestacy is to be avoided can not defeat the plain rule of law which declares a gift to be individual.-In re Murphy's Estate, 157 Cal. 63, 137 Am. St. Rep. 110, 106 Pac. 230. A testamentary gift "to my sons, A, B and C," is not a gift to a class.-Williams v. Neff, 52 Pa. St. 326, 333. Where the testator spoke of the "children" of a certain person and then mentioned them by name, the bequest is held to them individually and not as a class. - Morse v. Mason, 11 Allen (93 32 Hoare v. Osborne, 33 L. J. 33 Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980. 34 In re Brown's Estate, 86 Me. 572; Towne v. Weston, 132 Mass. 513, 516; Saunders v. Saunders' Admrs., 109 Va. 191, 63 S. E. 410. 35 In re Farmers' Loan & Tr. Co., 68 Misc. Rep. 279, 125 N. Y. Supp. 78. |