Page images
PDF
EPUB

§ 896. The Same Subject: Intention of Testator.

The decisions are so conflicting that it might well be said there is no fixed rule of interpretation applicable to words of survivorship, but that construction should be adopted which upon a consideration of the particular gift in connection with all other provisions of the will most nearly effectuates the apparent intention of the testator. All rules as to who shall take as survivors readily yield to an expression of an intent to be gathered from a fair

cases of doubtful construction, but this can never justify the courts in making a deed or will, or in straining the language used in order to make the estate created a vested rather than a contingent remainder. In obedience to this disposition in favor of vested remainders, this court has held where the question involved was the period to which words of survivorship related, that, in the absence of the expression of a particular intent, the survivorship has relation to the death of the testator."-Howbert v. Cauthorn, 100 Va. 649, 42 S. E. 683.

The fact that a will provides that, in case of the decease of a beneficiary to whom a remainder is given, his share shall "descend" to the heirs of his body will not generally be construed to create an estate tail nor prevent the members of the class of beneficiaries who are to take from being determined at the time of the testator's death. Where the testator provides for a disposition of his estate by will and gives directions II Com. on Wills-29

concerning his property his intention is generally effected by construing the word "descend" to mean "go to."-Borgner v. Brown, 133 Ind. 391, 33 N. E. 92; Halstead v. Hall, 60 Md. 209; Dennett v. Dennett, 40 N. H. 498; Stratton v. McKinnie, (Tenn. Ch.) 62 S. W. 636.

Where a legacy or devise or residuary bequest given to two or more persons by name, as tenants in common, or in severalty, or to be divided among them share and share alike, and without any words indicating an intention of the testator to give the same over to the survivors, the shares of such perbecome respectively will lapsed by the death of the legatee or devisee in the life-time of the testator. See §§ 749, et seq.; Page v. Page, 2 Str. 820; Bagwell v. Dry, 1 P. Wms. 700; Ackroyd v. Smithson, 1 Bro. C. C. 503.

sons

9 Inderwick v. Tatchell, (1901) 2 Ch. 738, affirmed (1903) A. C. 120; Wren v. Hynes' Adm'r, 2 Metc. (Ky.) 129.

construction of the whole will.10 Thus where the devise is to one for life with remainder to his children or the survivor or survivors of them, a contingent remainder is created to a class consisting of the children of the life tenant who survive him. In such a case the words "survivor or survivors of them" modify the preceding word "children" and are incorporated into the description of the remaindermen.11

The intention of the testator may be shown by the manner in which he directs the division of the gift. Thus a direct devise or bequest of realty or personalty to a class subject to a precedent life estate differs from a devise or bequest to one for life with a direction, expressed or implied, that at the death of the life tenant the property shall be divided or distributed among surviving members of a class. In the latter case the words of survivorship are presumed to refer to the happening of the latter event which will render necessary the ascertainment of the members of the class who take.12 This con

10 Newton v. Ayscough, 19 Ves. Jun. 536; In re Gregson's Estate, 2 De Gex, J. & S. 428; Olney v. Hull, 21 Pick. (Mass.) 311; Hulburt v. Emerson, 16 Mass. 241; Thomson V. Ludington, 104 Mass. 193; Denny v. Kettell, 135 Mass. 138; Stone v. Bradlee, 183 Mass. 165, 66 N. E. 708.

Where a life estate is devised to the wife of the testator, and the will provides that the land is then to be sold and the proceeds divided between the surviving brothers and sisters of the testator, but

the intention of the testator is to bequeath the money proceeds of the land only to those of his brothers and sisters living at the time appointed in the will for the distribution of the money, the heirs of any brother or sister who may die prior to that time are not entitled to share in the distribution. -In re Winter's Estate, 114 Cal. 186, 45 Pac. 1063.

11 Smith v. Chester, 272 Ill. 428, Ann. Cas. 1917A, 925, 112 N. E. 325.

12 Perry v. Thomas, 38 R. I. 328,

struction has been applied where the gift to the survivors is contingent, as a gift to A for life with remainder to his children if any are living at his death, and in the event of A's dying without children, then to the surviving children of the testator. The interest of the surviving children last mentioned is contingent upon A's dying without issue and those who take in such event are those who survive the life tenant.18

§ 897. Accrued Interest of One Survivor Generally Does Not Pass at His Death to Remaining Survivors.

Where a testamentary gift is to several beneficiaries and in the event of the death of any, then to the survivors, any interest which may accrue to any survivor by reason of the death of a beneficiary does not pass at his death to those surviving him. Under such a gift only the orig inal share of the beneficiary will pass to the survivors, because of his death, not that portion acquired by reason. of survivorship." But if the testator express an intention that accrued shares shall pass equally with original shares to the survivors, then such intention will be enforced.15 This may be shown by the creation of a trust

95 Atl. 776; In re Moran's Will, 118 Wis. 177, 96 N. W. 367.

An expression in a will that property in which a life estate is given be owned by the children at the decease of the life tenant does not in itself evince a purpose on the part of the testator to postpone the vesting of the remainder until after the termination of the particular estate.-Taylor v. Stephens, 165 Ind. 200, 74 N. E. 980.

13 Olmstead v. Dunn, 72 Ga. 850, 860; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404; Bigelow v. Clap, 166 Mass. 88, 43 N. E. 1037; Lawrence v. Phillips, 186 Mass. 320, 71 N. E. 541.

14 Pain v. Benson, 3 Atk. 78, 80; Rickett v. Guillernard, 12 Sim. 88; Ex parte West, 1 Bro. C. C. 575. 15 Eyre v. Marsden, 2 Keen 564.

and keeping the aggregate fund intact,16 by stating that the whole is to be paid to the survivor.17

16 Worlidge v. Churchill, 3 Bro. C. C. 465.

17 Sillick v. Booth, 1 You. & C. C. C. 117, 121.

Where the gift over to the survivors carries with it the "share and interest" of a beneficiary dying, it has been held to carry with it accrued interest.-Douglas v. Andrews, 14 Beav. 347.

The same rule has been applied

where the gift over was of the beneficiary's "share or shares."-Wil mott v. Flewitt, 11 Jur. N. S. 820.

A gift to the survivor of a num ber of persons without any prev ious gift, vests absolutely in the one last alive. He is the survivor on the death of all the others, although he can not be the survivor of himself.-Maden v. Taylor, 45 L. J. Ch. 569; Anderson v. Brown, 84 Md. 261, 35 Atl. 937.

[ocr errors][ocr errors]

CHAPTER XXXI.

RULE IN SHELLEY'S CASE.

§ 898. Rule in Shelley's Case defined.

§ 899. Purpose of the rule.

$900. Reasonableness of the rule.

§ 901. A rule of law and property, not of construction.

§ 902. Circumstances under which the rule is applicable.

§ 903. Limitation must be to heirs of first taker, in their capacity as such heirs.

§ 904. Effect of a limitation to the heirs of the heirs.

§ 905. The rule as applied to equitable estates.

§ 906. The same subject: Estates in trust.

§ 907. Where the remainder is vested or contingent.
§ 908. The rule as applicable to gifts of personalty.

§ 909. Effect of words of limitation and of purchase.
$910. "Heirs" as a word of limitation.

§ 911. Rule does not apply where the limitation is to particular
heirs.

§ 912. The same subject: "Heirs" as meaning "children."

913. "Children" as a word of purchase.

§ 914. "Children" as a word of limitation.

§ 915. Where the limitation is to "issue" or "issue of the body." § 916. Burden of proof.

§ 917. Where rule in Shelley's Case prevails, and where abolished by statute.

§ 898. Rule in Shelley's Case Defined.

In Shelley's Case the rule was laid down as a rule of law, that where the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited either mediately or immedi

« PreviousContinue »