A declaration in a deed of trust which clearly shows that the
sole object of the instrument is to provide for certain
specifically named children of the grantor who has other children
so dominates the instrument that the word "children," when
thereafter used, will be construed as referring to those particular
children, and not to include any other children of the grantor.
While the word "heirs," if used as a term of purchase in a will,
may signify whoever may be such at the testator's death, the word
"children," as used in the deed involved in this case, should be
construed as including only those persons answering the description
at the time of execution.
Surviving children of the grantor in such an instrument
held to include children of one of the children
specifically mentioned who had died prior to the grantor.
34 App.D.C. 338 reversed.
The facts, which involve the construction of a deed conveying
real estate in trust, are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity brought by Catharine Frosch against a
trustee under a deed to compel him to transfer
Page 228 U. S. 110
to her or otherwise, according to the construction of the
instrument, certain of the property conveyed by the deed. Other
parties in interest are joined, and argument has been heard on
their behalf. The facts are as follows: John Walter, the
plaintiff's father, executed the deed on June 18, 1869. At that
time his first wife had died, leaving five children, of whom the
plaintiff is one, and he had married again.
Two of these children, John Walter, Junior, and William Walter,
were of age. On the date mentioned, their father gave them
severally certain property in fee simple, and then made the deed
before us, reciting therein that he was "desirous of making
provision for his children by his first wife, to-wit: Catharine
Magdalena Sophia Walter [the plaintiff], George N. Walter, and Mrs.
Barbara King," these three then being under age. The final
limitation is the one to be construed, but it will be understood
better when the previous ones have been summed up.
The deed conveys to John Walter, Jr., certain parcels of land in
trust, after certain contingent prior payments and after the death
of the grantor, to hold the first-named parcel and pay the rents
and profits to the plaintiff for life, and then to hold for the use
of her children in fee. It similarly disposes of a bond for
$10,000, given by John Walter, Jr., to his father as part
consideration for the above-mentioned gift to him, stating that it
is "in order to equalize the division of my property between my
said children." Then comes a gift of the second and third parcels
upon like limitations and trusts for another daughter Mrs. Barbara
King, and also of secured notes for $7,300, like the gift of the
bond for Catharine, "in order more fully to equalize the division
of his property among his children." The fourth parcel is given
upon similar trust for George N. Walter, the youngest son.
Then comes the doubtful clause.
"In the event of the death of any one of the above mentioned
children of the
Page 228 U. S. 111
said John Walter, Senior, to-wit: Catharine, George &
Barbara, without leaving any child or children, or any issue of any
child or children, then and in that case that the property held in
trust by said trustee party of the second part for the benefit of
the party then dying without issue shall be sold by said party of
the second part, after the death of John Walter, Senior, and the
proceeds paid over in equal portions to the surviving children of
the said John Walter, Senior."
John Walter, Senior, died on April 12, 1907. Before that date,
George had died in 1892, unmarried, and it is the disposition to be
made of his share that is in question here. Barbara had died on
August 23, 1904, leaving eight children, defendants herein, and
John Walter, Jr., had died on November 17, 1906, leaving two
children, defendants herein. William Walter, who, with John, had
been provided for separately, survives and also is made a
defendant. The grantor's second wife afterwards died, childless,
and he married a third wife, who died leaving four children, also
defendants in this suit. It may be remarked, if in any way
material, that the grantor in 1900 provided for these
last-mentioned children by gifts similar to the above, subject like
them to a life estate in himself.
To begin with the claim of the children of the third marriage,
we are of opinion that it is unfounded. The word "heirs," if used
as a term of purchase in a will, might be held to reach forward and
to signify whoever might turn out to be such by the law in force
and applicable to the testator's death. But this is a deed, and the
word is "children." In view of what we have to say further, it is
enough to state our opinion that the word as here used is confined
to persons who answered the description at the moment when the deed
was executed and spoke.
The Court of Appeals held that all persons were embraced who
answered that description at that time, provided they survived the
grantor, and directed a decree
Page 228 U. S. 112
in favor of the plaintiffs, Catharine and William Walter. 34
App.D.C. 338. But we take a different view. In the first place, we
are of opinion that the word "children," as used habitually in the
deed, means the three children for whom it declares at the outset
that its object is to provide. That very declaration not only
dominates the deed as a statement of the sole reason for the whole
thing, but foreshadows the mode of referring to these three
children in terms broad enough to signify all -- "is desirous of
making provisions for his children by his first wife," -- a phrase
only cut down by a "to-wit: Catharine, George, and Mrs. King." When
the grantor speaks of equalizing his property "between my said
children," we understand him to refer to the three that have been
mentioned together under that name. And we understand him to mean
nothing different when later he speaks of equalizing the division
of his property among his children. This interpretation perhaps is
strengthened by the fact that "my property" cannot properly include
that which had been conveyed to his two elder sons, and therefore
that the equalizing contemplated was an equalizing as between the
three children among whom his remaining property was divided by the
present deed.
In the clause under consideration, he shows whom he meant by
"said children" when he says "above-mentioned children, . . .
to-wit: Catharine, George, and Barbara" -- and when, a few lines
further on, he says "surviving children," the inference is strong
that he means the children that up to that moment he had been
talking about by that name throughout. It would seem that the
grantor considered that he had made a division that would be fair
as against the two elder children, who had received their gifts in
fee, if each of the three children, and after them their
descendants, respectively, received and retained the portion
allotted to each. The groups set over against each other in his
mind were the two adults
Page 228 U. S. 113
and the three minors. If one of the latter died without issue,
and his share went to the other two, the equality was kept up,
because all of the three were equally subject to the chance; but,
assuming a substantial equality between the five lots, the two
adults, being subject to no chance of loss, had no claim to a
chance of gain. It follows that William Walter is excluded,
contrary to the decree of the Court of Appeals.
There remains the question whether children of Barbara King are
entitled to share with Catharine, as held by the Supreme Court. The
Court of Appeals was of opinion that the interest of Barbara King
was contingent upon her surviving the grantor, and that as she died
before him, her children could not take, the word "children"
obviously being used in its proper sense, and not embracing issue
of such children, mentioned antithetically in the same sentence. It
reached this conclusion because the direction to sell and
distribute did not operate till after the death of the grantor,
and, in its view, the time of distribution determined the time of
vesting an individual title in any child. On this point also we
take a different view. The limitation over on the death of one of
the three children without issue was of general import and scope,
and was not confined to such a death before the grantor's. If
George had died after his father, instead of before, the gift over
still would have taken effect. Surviving children, then, means
those of the three children who survive the child who dies without
issue. The death of the child determines who shall take as
surviving children. It is true that, if that death happens before
the grantor's, the distribution is postponed, but that obviously is
inserted to exclude any implication that, in that event, the
grantor gives up the life estate that he has reserved throughout.
It does not appear to us to warrant the conclusion that the time of
the child's death, with reference to this collateral fact, was to
affect the nature or quality of the interest given to the
children
Page 228 U. S. 114
who survive. It is true that the gift is contained in the
direction for distribution after sale, but, in view of our opinion
that it would have operated equally whenever George died, and that
the reason of the postponement of distribution to after the
grantor's death was solely on the grantor's own account, that fact
cannot affect the result. The decree of the Court of Appeals is
reversed, and the original decree of the Supreme Court will be
restored.
Decree reversed.
MR. JUSTICE Pitney, concurring:
I concur in the result reached, and agree with the reasoning
expressed in the opinion of the court except upon one point. The
opinion states:
"The limitation over on the death of one of the three children
without issue was of general import and scope, and was not confined
to such a death before the grantor's. If George had died after his
father, instead of before, the gift over still would have taken
effect."
Upon this point I agree with the view expressed in the opinion
of the Supreme Court of the District that
"that equitable title to George's portion, subject to the life
estate of John Walter, Sr., became vested in the complainant herein
(Mrs. Frosch) and her sister, Barbara King at George's death, May
14, 1892. Being so vested, Barbara's share passed by her death to
her eight children, and William Walter, the children of John
Walter, Jr., and the four children of the third wife, have no share
in the said property."