Dennis Ferry et al. vs. Charles A. Langley et al.

Dennis Ferry et al. vs. Charles A. Langley et al. In Equity. No. 6963. { Decided March 21, 1881. { The CmBP Justice and Justices Hauner and James sitting. Testator devised a house and lot to his daughter, E. F., “in trust for the benefit of her children, without particularizing them by their names. A like devise in trust was made to each of three other daughters. He then devised a house and lot to his daughters. E. P. and M. L., “ in trust for the benefit of their children.” The will then declared : “ In the above devises and bequests that I have made I wish it to be understood that my desire is that the property so named and designated, be held in trust by the persons so named as trustees until the youngest child in each family shall become of age, when it shall be conveyed to them as tenants in common.” There was no evidence as to the value of the respective properties, nor as to how many children there were in each family, nor what advances had been made to them by the testator in his lifetime. Held-, That, in the absence of this evidence, by the assistance of which the court might have decided differently, and guided only by the face of the will to discover the intention of the testator, the devise to E. F. and M. L. must be construed as meaning that they were to take as trustees for two families or groups of children, and that each group took one-half of the devise. STATEMENT OE THE CASE. Appeal from a decree of the Special Term dismissing plaintiff’s bill. The case arose upon the construction of the following will : “ In the name of God, Amen, I, Joseph Edwards, of the city of Washington, District of Columbia, being sick and weak in body, but of sound mind, memory and understanding, considering the certainty of death, and the uncertainty of the time thereof, and being desirous to settle my worldly affairs, do make and publish this, my last will and testament, in manner and form following, that is to say : That after my just debts and funeral expenses are paid, I devise and bequeath as follows : I give and bequeath to my son Edward Edwards, in trust for the benefit of his children, the two houses and lots on which they stand. [Described.] “ I give and bequeath to my daughter, Isabella Keiber, in trust for the benefit of her children, all and every part of a tract of land lying and being in the county of Montgomery, [Described.] “ I also give and bequeath to my daughter, Isabella Keiber, in trust for the benefit of her children, the two houses and lots on which they are erected fronting on an alley, in square number 168. “ I give and bequeath to my daughter, Martha Diggs, in trust for the benefit of her children, the two frame houses and lots on which they are erected. [Described.] Also, I give my daughter, Martha Diggs, in trust for her children, a house and the lot on which it is erected. [Described.] “ I give and bequeath to my daughter, Eliza Eerry, in trust for the benefit of her children, the brick house and lot on which it is erected. [Described.] “ I give and bequeath to my daughter, Mary Langley, in trust for the benefit of her children, the brick house and lot on which it is erected. [Described.] “I give and bequeath to my son,.Edward Edwards, in trust for the benefit of John, Charles, Mary and Hannah Eerry, children of my deceased daughter, Sarah Eerry, the house and lot on which it is erected. [Described.]' “ I give and, bequeath to my daughters, Eliza Ferry and Mary Langley, in trust for the benefit of their children, the house and lot on which it is erected, fronting■ on L street, house No. 1428, in square 216, being the next house west of the one bequeathed to F. Edward Edwards, in trust for his children. “In the above devises and bequests that I have made, I wish it to be understood that my desire is, that the property so named and designated, be held in trust by the persons so named as trustees, until the youngest child in each family shall become of age, when it shall be conveyed to them as tenants in common.” ******* The bill asserts that the children of Eliza Ferry and Mary A. Langley, under the last devise contained in this will, take the property mentioned therein per capita and not per stirpes; the defendants maintained the contrary. The cause was heard on bill and answer. ANDREW B. Duvall for plaintiffs. 'Whether the devisees take per capita or not depends upon whether they take in. their right or by representation, whether the word is a word of purchase or limitation. 2 Redf. Wills, 256, note. “ Children ” is naturally a word of purchase and is never converted into a word of limitation unless absolutely necessary to effectuate the intention of the testator. Roper, 69-70. Where there is a devise or bequest to the children of several persons, whether it be “ to the children of A and B,” or “to the children of A and the children of B,” they take per capita and not per stirpes. 2 Jarmen Wills, 111 ; 2 Redf. Wills, 397 ; 3 Bro. C. C., 367 ; 2 P. Wm, 384 , 2 Vera., 705 ; 1 Sandf., 360-4 ; 6 Paige, 89 ; 4 PI. & J., 539 ; 5 Or. C. C., 659. The learned justice below conceded that this was a devise per capita ; but he thought the last clause of the will controlled it, and that clause could only be gratified by holding this to be a devise to the families as such. But the rule of construction is, if the testator uses in one part of his will words having a clear meaning in law, and in another words inconsistent with the former, the first words are not to be cancelled or overthrown. The doctrine is that the general intent, though first expressed, shall overrule the particular ; i. e., technical words or words of known legal import, shall have their legal effect unless from subsequent inconsistent words it is very clear that the testator meant otherwise. 2. Wins. Ex. (5th Am. ed.), 972-8-8 ; 2 Eligir, 56 ; 6 Pet., 78 ; 1 Jarmen, 413. If there are words which have no intelligible meaning, or are absurd or repugnant to the clear intent of the rest of the will, they may be rejected. 12 Mass., 548. According to its apparent grammatical reading, by this last clause each and every devise is revoked ; and when the youngest child in each family becomes of age, each parcel of land mentioned in the will is to be conveyed to them (the youngest child in each family) as tenants in common. Shall language so exceedingly unintelligible, vague and uncertain, control a devise which but for it would be beyond controversy ? Cook & Cole for defendants : It is submitted that the proper construction of the language of the clause of the will in question, gives the property to the children of the trustees by families and not per capita. 2 Eedf. on Wills, 50 ; 1 De G-ex. & Smole, 355 ; 16 Beav., 485; 11 Wheat., 375 ; 17 Wend., 119 ; 5 Cow., 221; 1 Halst. Law, 134 : 5 Dutch., 345 ; 12 Leigh, 350 ; 3 Jones’ Eq., 100, 204 ; 11 G. & J., 123 ; 11 B. Mon., 32 ; 27 Penn., 55 ; 40 Penn., Ill ; 45 Conn., 467. In this case, as in all others, the paramount rule must be applied, that the intention of the testator, to be gathered from the whole will and circumstances, must govern. The English rule of construction that “ a gift to children, grandchildren, or heirs, is equivalent to naming them therein, and of a different intention in the context.” 2 Jarmen on Wills (1st Am. ed.), Ill, cited with approval in Baymond vs. Hillhouse, 45 Conn., 467. The intention of the testator to give the property in question to the two families equally, is manifest from other portions of the will. Throughout the will he gives to his grandchildren by families, without exception, unless this clause is to be made an exception by construction. In the clause under consideration he gives to two of his daughters, in trust for their children,' dividing them into families by the appointment of trustees. Had the devise been to the daughters, without the addition of the woi’ds creating the trust, each would have taken a moiety. In the last clause the testator provides that the property is “ to be held in trust * * * until the youngest child in each family shall become of age, when it shall be conveyed to them as tenants in common.” If the construction contended for by complainants should be adopted, the property in question could not be conveyed to the beneficiaries until the youngest child in both families sliould become of age, thus taking the clause in question entirely out of the operation of the rule prescribed by the testator. It may be remarked that there are nine children in the family of complainants and two in that of the defendants. [MAJORITY — Mr. Justice Jakes] Mr. Justice Jakes delivered the opinion of the court. This case involves the construction of a will in which the testator has made the following provisions: He gives a certain lot to his daughter, Isabella Keiber, in trust for the benefit of her children; then in a similar manner he proceeds to give certain lots to the mothers of certain groups of children until he comes to these premises: “ I give and bequeath to my son, Edward Edwards, in trust for the benefit of John, Charles, Joseph, Mary and Hannah Ferry, children of my deceased daughter, Sarah Ferry,” a certain house and lot. The provisions which we have specially to consider so as to determine the meaning of one particular clause, are the devises to Eliza Ferry and Mary Langley. There are three which relate to these persons. The first is: “I give and bequeath to my daughter, Eliza Ferry, in trust for the benefit of her children, the brick house and lot on which it is erected.” [Describing.] The next is: “I give and bequeath to my daughter, Mary Langley, in trust for the benefit of her children, the brick house and lot on which it is erected.” [Describing it.] These are separate devises: one to Eliza Ferry, for her children, and one to Mary Langley, in trust for her children, ’•the names of none of the children being mentioned in either -devise. Next he proceeds to devise to those two persons together, as trustees, in the following terms: “ I give and bequeath to my daughters, Eliza Ferry and Mary Langley, in trust for the benefit of their children, the house and lot on which it is erected, fronting on L street, house No. 1428.” [Describing it.] Last of all he provides that “ in the above devises and bequests that I have made, I wish it to be understood that my desire is, that the property so named and designated be held in trust by the persons so named as trustees, until the youngest child in each family shall become of age, when it -shall be conveyed to them as tenants in common.” ■ It will be perceived that while the testator gives a particular lot to Eliza Ferry separately for the benefit of her children, and a particular lot to Mary Langley, in trust for the benefit of her children, he conveys only one house and lot to these two mothers jointly for the benefit of their children, without stating in terms how the3r are f° take. The question which we are called upon to decide is whether the children of Eliza Ferry and the children of Mary Langley as groups take one-half, or whether, in case there are nine •children in one group and two children in the other, as suggested to us on the argument, they are to take per capita each. That is to say, whether the nine shall take one-half and the two one-half, or whether the two shall take two-elevenths, and the nine nine-elevenths. We have come to our conclusion with some reluctance, but we are not furnished with the means of ascertaining what the effect will be as to equality of distribution. There is a certain spirit manifested in the will of intending to work out justice and equality among all these devisees. If we knew the values of the real estate and knew how many children there are in each of these families, we might be made possibly to come to a different conclusion. But we have nothing but the words- of the will. Nor do we know what advances may have been made by the testator to any of these families. If our construction works out inequality,, it is because we do not know the value of the property given to Eliza Ferry, supposing her to be the mother of the nine, or the value of that given to Mary Langley and her children, There may be such inequalities in their values as to make it strictly equal to giving one-half only to the nine children of Eliza Ferry, and other half to the two children of Mary Langley. We have looked over the whole of this will to find out what was really intended. Now we find one clause giving-to Eliza Ferry a house and lot for the benefit of her children, who were evidently looked upon as a group to which this property was given as a provision. The same course was followed in the devise of another house and lot to .Mary Langley and her children, whether many or few. The testator has then one more house left, and this he gives to the same mothers for their children, and our conclusion is that he intended to regard them as groups in this instance just as he had done before. There is one expression which the testator uses which confirms me in that opinion and which I think was taken into consideration by the court: “In the above devises and bequests that I have made, I wish it to be understood that my desire is that the property so named and designated, beheld in trust by the persons so named as trustees, until the youngest child in each family shall become of age.” He mentions them as families, indicates in that expression that, he was providing for them as families ; that he looked upon them as families ; and he kept them out of possession as an entire family in each case ; in all these separate devises and in the joint one alike, he would not allow the property ta become vested in them so as to enable them to make partition or to dispose of it until the youngest child should become of age. Looking, then, at the face of the will, without the aid of any history of the pieces of property, and without any information as to what the testator may have done for' the advancement of these families we are led to the conclusion that his intention was to make provision for group by group, and that he kept them in his mind in that relation, and that this clause which we are called upon to construe means that Eliza Eerry and Mary Langley take as trustees for two groups of children; we are told one of them is nine and the other two; each group takes one-half. The decree below is affirmed.