A trust in a will in favor of testator's four daughters and
"from and after their death" for the "children of each of them,"
and in which the idea of provision for the grandchildren is
especially prominent, will not be construed, by rigidly giving
plurality to the pronoun "their," as creating a joint tenancy so
that the last surviving daughter takes all the income to the
exclusion of the children of her sisters previously deceased.
25 App.D.C. 514 affirmed.
The facts are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This suit involves the construction of the will of Robert
Page 203 U. S. 369
Cruit, deceased, and, as dependent thereon, the liability of
appellant to account to the appellees for the rents of certain real
estate located in the City of Washington and in the State of
Virginia. Decree in the supreme court passed for appellees, which
was affirmed by the court of appeals. 25 App.D.C. 514.
The will was executed September 1, 1858, and was duly admitted
to probate.
* The testator
left surviving him a wife
Page 203 U. S. 370
and four daughters -- Catherine E., then the wife of Samuel
Owen, Susan, Ann (appellant), and Louisa. The widow of the deceased
died May 13, 1876; Louisa died January 2, 1876, Susan died December
31, 1900, and Catherine E. Owen died May 14, 1901. Susan and Louisa
never married, nor has Ann up to the present time. Catherine E.
Owen left surviving her three daughters, Evania F. Mackall and the
appellees, Kate D. Owen and Jessie Owen Cugle. The property
produces an income of $11,000 or $12,000.
The question in the case is whether appellant succeeded to the
whole estate upon the death of Catherine E. Owen, or whether the
children of the latter, appellees, were the successors of their
mother.
The will gives small legacies to two nephews, and disposes
of
"all the rest and residue and remainder of the testator's estate
to Susan Cruit in trust (1) for his wife for and during her life,
and to permit her to take and receive the whole income thereof; (2)
in trust, as to testator's real estate, to his daughters equally,
share and share alike, for and during their respective lives, . . .
and from and after their death in trust for the child or children
of each of my said daughters, then alive, in fee simple, such child
or children, respectively, to take the share to which his, her or
their parent was entitled. And if any of my said daughters shall
die without having been married, her share shall pass to her or
their surviving sisters or sister for life equally, and upon her or
their death the same shall vest in her or their child or children
in the same manner and for the same estate and pass on her or their
death, as her or their original share or shares."
We do not think it is difficult to discern the intention of the
testator. There is very little ambiguity in the will. If ambiguity
exist, it is in the pronoun "their" in the provision
"and from and after their death in trust for the child or
children of each of my said daughters then living in fee simple,
such
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child or children respectively to take the share to which his,
her or their parent was entitled."
It is contended by appellant that it is manifest from these
words and others in the will that it was drawn by a skilful hand,
to create a joint tenancy in the daughters of the testator, and
cases are cited in which wills containing such words have been
construed, it is contended, as giving such effect. We might review
these cases and those cited in opposition by appellees if the will
in controversy were less clear in its meaning. Provision for his
daughters and equality between them were clear and definite in the
mind of the testator. One daughter was married and that the others
might be was contemplated, and that children might result
therefrom. This idea is especially prominent and is carefully
expressed, and provision is made for such children. The contention
of appellant militates against this idea. It would leave
grandchildren unprovided for. If such had been the intention of the
testator, we think he would have explicitly expressed it. It was
not so natural an intention as the other. It is not the first
impression of the will, and can only be made out by rigidly giving
plurality to the pronoun "their" in the provision "and from and
after their death in trust for the child or children of each of my
said daughters, then living, in fee simple." But the word is
qualified and made several by what precedes it. The devise is to
his daughters "for and during their respective lives." It is
qualified also by what follows it. One of the daughters of the
testator was married, the others were not, and might not be, and
anticipating this possibility the testator provided that, if any of
his daughters should die without having been married, her share
should pass to the survivors. In other words, it was only upon the
death of a daughter "without having been married" (and without
issue possibly), that her share was to pass to her sisters or
sister. We also agree with the courts below that the trust
continues.
The concluding paragraph of the will is:
"And lastly I appoint my said daughter Susan Cruit sole
Page 203 U. S. 372
executrix of this my last will and testament. And if my said
daughter shall die or from any cause should become unable to act in
the trust, I direct that a trustee shall be appointed by the
circuit court so that the trusts hereby created shall be at all
times preserved and carried into effect."
Decree affirmed.
*
"This is the last will and testament of me Robert Cruit of the
City of Washington in the District of Columbia."
"First I give to my two nephews Edwin Cruit the son of George,
and Henry the son of John L. Cruit, the legacy of one hundred
dollars, to each of them, to be paid as soon after my death as may
be. And all the rest residue and remainder of my estate, real,
personal and mixed, whatsoever and wheresoever situated, I give,
devise and bequeath unto my dear daughter Susan Cruit her heirs
executors and administrators upon the following trusts to-wit: in
trust for my dear wife Catherine for and during her life, and to
permit her to receive and take the whole income thereof after
paying taxes repairs and insurance, and to apply and dispose of
such income as she my said wife may think proper and from and after
her decease, in trust, as to my real estate for my dear daughters
Catherine E. the wife of Samuel Owens, Ann Cruit, Louisa Cruit, and
herself the said Susan Cruit, equally share and share alike, for
and during their respective lives, for their own sole and separate
benefit free from the control of the husband of my said daughter
Catherine and any husband or husbands she or my said other
daughters or any of them may hereafter happen to marry, and not to
be liable in any way for the debts of any such husbands, the
receipts of my said daughters alone being a valid discharge. And
from and after their death in trust for the child or children of
each of my said daughters then living in fee simple, such child or
children respectively to take the share to which his, her or their
parent was entitled. And if any of my said daughters shall die
without having been married, her share shall pass to her or their
surviving sisters or sister for life equally, and upon her or their
death the same shall vest in her or their child or children in the
same manner, and for the same estate and pass on her or their
death, as her or their original shares or share. And as to my
personal property, also given in trust as above expressed. I direct
that the same shall, after the death of my said wife, be divided
equally among all my said children, Catherine, Susan, Ann and
Louisa share and share alike, and I accordingly give the same to
them as aforesaid for their own sole and separate use."
"And lastly, I appoint my said daughter Susan Cruit sole
executrix of this my last will and testament. And if my said
daughter shall die or from any cause should become unable to act in
the trust, I direct, that a trustee shall be appointed by the
circuit court so that the trusts hereby created shall be at all
times preserved and carried into effect."