In construing doubtful clauses in a will, the court will
endeavor to ascertain the testator's intention through their
meaning as reasonably interpreted in the particular case, rather
than resort to formal rules or to a consideration of judicial
determination in other cases apparently similar.
The testator in this case provided in his will that his widow
should have the income of all his estate, she having the right to
spend it, but not to have it accumulate for her heirs; that his two
sisters, if living at the time of the death of himself and his wife
or the one that might then be living, should "have the income of
all my estate as long as they may live, and at their death to be
divided in three parts, one-third of the income to go to" a
charitable institution, one-third to another institution, and
one-third to another. Both sisters died before the testator.
Held that the
Page 123 U. S. 703
limitations in the two subdivisions of the will were to be
taken, in connection with each other, as a complete disposition, in
the mind of the testator, of his estate giving to the widow an
estate for life, with an estate over for life to the sisters
contingent upon one or the other of them surviving the widow, and
with the ultimate remainder to the charitable institutions.
Robert I. Robison, formerly of Portland in the State of Maine,
died on the 13th day of June, 1878 at that time a citizen of the
State of New York and resident of Brooklyn, leaving a last will and
testament, which was subsequently admitted to probate in the
Surrogate's Court of Kings County, New York, and duly recorded on
December 27, 1878. Letters testamentary thereon were on the same
day issued and granted to Jane S. Robison, his widow, who alone
qualified as executrix. The testator at the time of his death was
seized of real estate in the City of Portland and also possessed of
a considerable amount of personal property.
The following is a copy of the will:
"I, Robert I. Robison, of Portland, in the State of Maine, being
in a sound disposing mind and memory, do make and publish this my
last will and testament. And first my will is that my executors see
that my body be buried in a decent and proper manner in the family
vault in the Eastern Cemetery in the City of Portland aforesaid.
Secondly, I will all my just debts be paid in full, and from the
balance I will that with whatever property may be standing in my
wife's, Jane S. Robison's, name at the time of my death, that my
executors make up said amount to the sum of eight thousand and five
hundred dollars, it being the amount, or thereabouts, which she
received from her father's and mother's estates, it being my will
that the principal shall be kept good to her and her heirs, but not
the interest. This is to be in full for all claims she may have on
my estate arising out of the use of her property. Thirdly, I
further will that she may have the income of all my estate, she
having the right to spend the same, but not to have it accumulate
for her heirs. Fourthly, it is my will that if my sister, Ann
Smith, wife of Jacob Smith
Page 123 U. S. 704
of Bath, in the State of Maine, and Eleonora Cummings Robison,
wife of Thomas Weeks Robison, of Kingston, Canada West, be living
at the death of myself and wife, Jane S. Robison, aforesaid, that
they, or the one that may be then living, shall have the income of
all my estate as long as they may live, and at their death to be
divided in three parts, one-third part of the income to go to the
Portland Female Orphan Asylum, one-third of the income to the
Widows' Wood Society, and one-third of the income to the Home for
Aged Indigent Women, all of the City of Portland, and State of
Maine. Lastly, I do nominate and appoint my wife, Jane S. Robison,
and John Rand, Esq., to be my executors of this my last will and
testament."
"In testimony whereof I have hereunto subscribed my name and
affixed my seal this thirty-first day of October, in the year of
our Lord one thousand eight hundred and sixty-two."
"[S'd] ROBERT I. ROBISON [L.S.]"
"Signed, sealed, and declared by the said Robert Ilsley Robison
to be his last will and testament in the presence of us, who at his
request and in his presence have subscribed our names as witnesses
hereto."
"CHAS. H. ADAMS"
"B. F. HARRIS"
"JASON BERRY"
On December 29, 1881, the present bill in equity was filed by
Jane S. Robison, as widow and executrix, for the purpose of
obtaining a construction of the will, the defendants being
charitable institutions named therein, and the only other parties
in interest, Ann Smith and Eleonora Cummings Robison, the persons
mentioned in the fourth item of the will, having both died before
the testator. It was contended on the part of the complainant that
in consequence of the lapse of the devise and legacy to Ann Smith
and Eleonora Cummings Robison, the bequest to the defendants never
took effect, and that consequently the complainant was entitled to
the estate absolutely by virtue of the
Page 123 U. S. 705
devise to her, or in the alternative because the testator had
died intestate as to that part of the estate mentioned in the
fourth subdivision of the will. The decree of the circuit court,
however, was
"that the complainant is entitled only to the income of the
estate during her natural life, and that the fourth subdivision of
the last will and testament of the testator is operative and valid,
and was so at the time the will took effect, and that the defendant
corporations acquired by virtue thereof the right, from and after
the death of the complainant, to the perpetual income of the said
estate."
To review that decree the present appeal has been brought.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
It is now contended in argument on the part of the appellant,
1st, that the language of the third subdivision of the will,
considered by itself, is sufficient to give to her the real estate
in fee and the personal estate absolutely; 2d, that the bequest in
the fourth subdivision of the will to Ann Smith and Eleonora
Cummings Robison is contingent on one of them surviving both the
testator and the complaint, and, as the event happened, never
became vested; 3d, that the bequest to the defendants is dependent
upon the vesting of the bequest to Ann Smith and Eleonora Cummings
Robison, being affected by the same contingency -- namely one of
them surviving the testator and the complainant; and 4th, that if
the interest of the complainant under the third subdivision of the
will must be limited to a life estate, as the bequest contained in
the fourth subdivision have lapsed or cannot take effect, the
testator died intestate in respect to that portion of his
estate.
In support of the proposition that the bequest to the defendants
must fall with that to Ann Smith and Eleonora Cummings Robison,
counsel for the appellant rely upon the rule laid down by Mr.
Jarman in the following language:
"When
Page 123 U. S. 706
a contingent particular estate is followed by other limitations,
a question frequently arises whether the contingency affects such
estate only, or extends to the whole series. The rule in these
cases seems to be that if the ulterior limitations be immediately
consecutive on the particular estate in unbroken continuity, and no
intention or purpose is expressed with reference to that estate, in
contradistinction to the others, the whole will be considered to
hinge on the same contingency, and that too although the
contingency relate personally to the object of the particular
estate, and therefore appear not reasonably applied to the ulterior
limitations. Thus, where an estate for life is made to depend on
the contingency of the object of its being alive at the period when
the preceding estates determine, limitations consecutive on that
estate have been held to be contingent on the same event for want
of something in the will to authorize a distinction between
them."
1 Jarman on Wills, 5th Amer. ed. by Bigelow *831.
But the rule referred to is one of construction merely, and
intended only as a formula for the purpose of classifying cases in
which the meaning is gathered from the language of the testator
expressing such intention, and is not to be applied to instances in
which it appears that the contingency is restricted to the
immediate estate. The same author divides those instances into two
other classes:
"First. Where the words of contingency are referable to and
evidently spring from an intention which the testator has expressed
in regard to that estate by way of distinction from the others.
Secondly. The contingency is restricted to the particular estate
with which it stands associated where the ulterior limitations do
not follow such contingent estate in one uninterrupted series in
the nature of remainders, but assume the form of substantive
independent gifts."
Ibid., 831, 832.
Under the second of these classes is ranged the case of
Boosey v. Gardener, 5 De G. M. & G. 122. In that case,
the testator bequeathed to his two sisters the interest of his long
annuities for their lives, and in case of one or both of their
deaths before his, he gave the whole interest in long annuities
Page 123 U. S. 707
to his brother for life; at his death (that is, the death of the
brother), the testator gave half of the capital to his niece, A.,
his brother's daughter, to help to bring her up till she attained
the age of twenty-one, then to receive half the capital; likewise
the testator bequeathed to his nephew, S., his brother's son, if
not further family, his other half, in case of further family to be
divided between them, not dividing the half left to A. It was held
by Turner, L.J. that the bequest to the niece and nephew was not
contingent upon the death of the sisters in the testator's
lifetime, although the preceding estate for life to the brother
was. But little aid, however, in such cases is to be derived from a
resort to formal rules or a consideration of judicial
determinations in other cases apparently similar. It is a question
in each case of the reasonable interpretation of the words of the
particular will, with the view of ascertaining through their
meaning the testator's intention.
In applying this principle, the Supreme Judicial Court of
Massachusetts, in the case of
Metcalf v. Framingham
Parish, 128 Mass. 370, 374, speaking by Gray, C.J., said:
"The decision of this question doubtless depends upon the
intention of the testator as manifested by words that he has used,
and an omission to express his intention cannot be supplied by
conjecture; but if a reading of the whole will produces a
conviction that the testator must necessarily have intended an
interest to be given which is not bequeathed by express and formal
words, the court must supply the defect by implication, and so
mould the language of the testator as to carry into effect so far
as possible, the intention which it is of opinion that he has on
the whole will sufficiently declared.
Ferson v. Dodge, 23
Pick. 287;
Towns v. Wentworth, 11 Moore P.C. 526;
Abbott v. Middleton, 7 H.L.Cas. 68;
Greenwood v.
Greenwood, 5 Ch.D. 954."
Looking into the present will, therefore, for that purpose, we
find it evident that the testator did not intend by the third
subdivision of his will to give to his widow an interest in his
estate beyond her life. This conclusion is not based on any
distinction between a bequest of the income of the estate and
Page 123 U. S. 708
a bequest of the body of the estate itself; nor do we lay any
stress on the declaration in that clause "she having the right to
spend the same, but not to have it accumulate for her heirs,"
although that language does afford an indication in support of the
conclusion. But whatever force, standing by itself, the third
subdivision might have, it is clear that the testator intended, in
the event that his sister, Ann Smith, and Eleonora Cummings Robison
should survive both himself and his wife, that they should have an
estate for life beginning at the death of his widow. That would
necessarily limit the widow's estate to her own life. But as the
estate given by the fourth clause to Ann Smith and Eleonora
Cummings Robison for their lives was contingent on the event that
one or the other of them should be living at the death of the wife,
the question remains whether that contingency also entered into the
bequest in remainder to the defendants. The fact that Ann Smith and
Eleonora Cummings Robison died before the testator, whereby the
legacy to them lapsed altogether, is not material, because if
property be limited upon the death of one person to another, and
the first donee happen to predecease the testator, the gift over
would, of course, take effect notwithstanding the failure by lapse
of the prior gift. And this applies also whether the gift over of
the legacy or share is to take effect on the death of the prior
legatee generally, or on the death under particular circumstances,
and whether the legacy be immediate or in remainder. It was so held
in
Willing v. Baine, 3 P.Wms. 113, where the bequest was
to A., but if he died under 21, to B.
In
Humberstone v. Stanton, 1 Ves. & B. 388, it was
said:
"It seems formerly to have been a question whether a bequest
over, in case of the death of the legatee before a certain period,
could take effect where he died during the testator's life, though
before the period specified. In the case of
Willing v.
Baine, legacies were given to children, payable at their
respective ages of twenty-one, and if any of them died before that
age, the legacy given to the person so dying to go to the
survivors. One having died under twenty-one in the life of the
testator, it was contended that his legacy lapsed, and did not go
over to the survivors."
The argument was that the bequest over could not
Page 123 U. S. 709
take place, as
"there can be no legacy unless the legatee survives the
testator, the will not speaking until then, wherefore this must
only be intended where the legatee survives the testator, so that
the legacy vests in him and then he dies before his age of
twenty-one. It was, however, held, and is now settled, that in such
a case the bequest over takes place."
It follows, therefore, that unless it appear on the face of the
will that the gift to the defendants was not intended to take
effect unless the prior gift to Ann Smith and Eleonora Cummings
Robison took effect, the former must be considered as taking effect
in place of and as a substitute for the prior gift, which, by
reason of the contingency, has failed.
The scheme and intention, therefore, of the present will seems
to us, considering the third and fourth subdivisions together, to
be this: an estate for life to the testator's widow; an estate over
for life to Ann Smith and Eleonora Cummings Robison, contingent on
one of them surviving the widow, with the ultimate remainder in fee
as to the real estate, and absolutely as to the personalty, in the
defendants. The language of the contingency in the fourth clause,
in our opinion, affects only the intermediate life estate of Ann
Smith and Eleonora Cummings Robison, it being, we think, the plain
intention of the testator to give to his widow the estate in
question only for her life, and not to die intestate as to any
portion of the estate, and to limit the contingency only to the
gift to Ann Smith and Eleonora Cummings Robison. It is true that
the ultimate gift to the defendants is described as commencing "at
their death" -- that is, at the death of Ann Smith and Eleonora
Cummings Robison -- but that language is evidently used only as
indicating the expectation of the testator, which he would
naturally indulge, that the beneficiaries named would live to
receive the gift intended. Certainly those words are not to be
construed so as to require that the gift to the defendants shall
take effect at the death of Ann Smith and Eleonora Cummings Robison
irrespectively of the prior decease of the widow. The limitations
in the two subdivisions of the will are to be taken in connection
with each other as a complete disposition in the mind of the
testator of his estate, giving to the widow an
Page 123 U. S. 710
estate for life, with an estate over for life to Ann Smith and
Eleonora Cummings Robison contingent upon one or the other of them
surviving the widow, with the ultimate remainder to the
defendants.
The decree of the circuit court is accordingly
Affirmed.
