Wattenbarger v. Payne

Decision Date04 March 1912
PartiesJ. M. WATTENBARGER, Guardian, Appellant, v. REUBEN PAYNE, Executor, Respondent
CourtKansas Court of Appeals

Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed.

Calfee & Painter and J. M. Wattenbarger for appellant.

Under the Statute of Wills, section 546, Revised Statutes 1909 appellant's ward takes the estate devised to her father directly from her grandfather under the will. Heady v Crouse, 203 Mo. 100. The surviving issue takes the estate devised not as heirs at law or distributees of the deceased devisee, but as legatees directly and immediately, under and by virtue of the will, and is not chargeable with the debts due the testator by their father, not mentioned in the will. Carson v. Carson, 1 Met. 58 Ky. 300; Sloan v. Thornton, 43 S.W. 415; Cherry v. Mitchell, 55 S.W. 689; Supreme Council v. Densford, 56 S.W. 172. A legacy to a son of the testator, who dies before the testator, passes to and vests in the children or descendants of such deceased legatee, without administration upon his estate, and to the exclusion of his widow and creditors. Cook v. Munn, 12 Abbott's New Cases (N. Y.) 344; 2 Demarist's, 48 (N. Y.) Surrogate Court; 18 Am. & Eng. Ency. Law (2 Ed.), 757. Title to a legacy vesting by force of the statute, upon the death of the testator, in the descendant of the deceased legatee, the executor cannot deduct therefrom the amount of a debt which the deceased legatee owed to the testator. The English Statute, iv. Vict., ch. 26, sec. 33; Smith v. Smith, 5 Jones Eq. (N.C.) 305. The provisions of the statute is for the benefit of the issue of the deceased legatee, and they take under the will of the original testator and not from the deceased legatee. Newbold v. Newbold, 2 Whart. 46. Heirs of the deceased legatee take directly from the testator by force of the statute which preserves the legacy, and substitutes the child as the legatee in place of the deceased parent. Paine v. Prentiss, 5 Metc. (Mass.) 396.

D. M. Wilson and J. W. Clapp for respondent.

At common law the devise to Daniel S. Payne would have lapsed, and his daughter would not be entitled to any part of her grandfather's estate. Jamison v. Hall, 46 Mo. 546; Martin v. LaChasse, 47 Mo. 593; Brammell v. Adams, 146 Mo. 88. Had Daniel S. Payne survived his father he would not have been entitled to a distributive share of the estate since he owed the estate more than his share would be. Lietman v. Lietman, 149 Mo. 112; Duffy v. Duffy, 155 Mo. 144; Ayres v. King, 168 Mo. 244; Trabue v. Henderson, 180 Mo. 616; Railroad v. Bowring, 103 Mo.App. 167.

ELLISON, J. Broaddus, P. J., concurs; Johnson, J., dissents.

OPINION

ELLISON, J.

Addison Payne had several children and he made a will wherein legacies were directed to be paid to each. One of these children died indebted to his father, leaving Ruth (the plaintiff's ward), a granddaughter of Addison, as his sole heir. Then, shortly afterward, Addison died, and plaintiff, as guardian for the granddaughter, in due time filed a motion in the probate court asking that the grandfather's executor be required to pay to her the legacy willed to her father. The executor resisted on the ground that Ruth's father died insolvent and indebted to his father in a sum greater than the legacy. On appeal to the circuit court of Sullivan county the judgment was for the executor, and Ruth's guardian has brought the case here.

The question for decision is, whether a right exists to subject a father's legacy to the payment of his debt to the testator as against his daughter's claim of the legacy, she being the testator's granddaughter. And that question depends upon a construction of the following statute: "When any estate shall be devised to any child, grandchild or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have done in case he had survived the testator." (Sec. 546, R. S. 1909.)

It has been decided, under like statutes, that such a legacy, thus claimed by the grandchild of the testator, is not subject to depletion for the debt of the father to the testator. [Carson v. Carson, 58 Ky. 300; Smith v. Smith, 58 N.C. 305; In re Hafner et al., 61 N.Y.S. 565, 568; Jones v. Jones, 37 Ala. 646.]

The ground upon which these decisions are based is that the father, having died before the grandfather testator, the former never had any interest in the legacy, and, upon the death of the testator, it passed, as an original legacy direct to the grandchild, and not through the deceased father. The father never having had any interest in the legacy, on account of his death, could not transmit it, nor could it be claimed as coming through him. The Supreme Court of Louisiana gave forcible expression to this idea in these words:

"A dead man can neither get nor give; he can neither inherit nor transmit. The representative of the deceased person does not receive by transmission from that person and jure alieno; he receives by designation of law and jure suo. It follows therefore that the representative is not by the fact of representation merely, rendered personally liable for the debts of the person whom he represents. He is endowed by the law with the rights of the latter in a certain succession, but is not laden with the obligations of that latter to the rest of the world. He is not an accepting heir, but a designated representative. This doctrine is elementary. [Succession of Morgan, 23 La. Ann. 290.]

Text-writers state the law the same way. In 1 Underhill on the Law of Wills, sec. 339, it is stated that the grandchild does not take through its parent, but directly under the will; the statute doing what the grandfather presumably wanted done. And that while the grandchild will take subject to his grandfather testator's debts, no act of the father can lessen his child's bequest. In Rood on Wills, sec. 675, it is stated that, of necessity, the grandchildren do not take through their father, but that they take an independent gift direct from the grandfather, free from the claims of their father's creditors.

But there are two decisions, made by courts of high standing, which give a different construction to similar statutes: Denise v. Denise, 37 N.J.Eq. 163; Baker v. Carpenter, 69 Ohio St. 15, 68 N.E. 577. These cases stand the grandchild of the testator in the shoes of his father, so that his claim is through his father, and there by cause the legacy to be charged with the father's debts owing to the grandfather.

Plausible reasons are assigned to brace each of these conflicting views. All agree that the object of the statute was to prevent a lapse of the legacy, which took place, under the common law, when the legatee died before the testator, thereby frequently leaving no provision for the grandchildren. It is not correct to say that the Legislature only provided a means whereby the grandchild could claim his father's legacy. The Legislature enacted a law that, in the contingency of the father's death, made his child an original legatee of the grandfather. It is everywhere agreed that an applicable statute enters into and becomes a part of the testator's will. Therefore, should it not be said that the grandfather willed the legacy to his son, if he be alive at the grandfather's decease, but if he be dead, then to the children of the son? In such case there certainly would be no charge of the son's debts to the testator, unless directed in the will. If the law-makers had desired that the grand-child's legacy should be charged with the debts of his father to his grandfather, it seems to me to be accusing them with a great oversight in not explicitly saying so.

While adjudicated cases are few on the identical question here involved, there are a number of cases where practically the same thing has been determined. By statute in this state (and perhaps all the others) if a man dies without a will, leaving surviving children and grandchildren who are descendants of the grandfather's deceased children, the share the latter would have taken in the estate descends to the grandchildren. [Sec. 332, R. S. 1909.] Now this statute does the same thing...

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