Allen v. Reed

• Decision Date: 03 January 1927
• Docket Number: No. 4426.,4426.
• Citation: 17 F.2d 666,57 App. DC 78
• Parties: ALLEN v. REED et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

57 App. DC 78, 17 F.2d 666 (1927)

ALLEN v. REED et al.

No. 4426.

Court of Appeals of District of Columbia.

Submitted October 8, 1926.

Decided January 3, 1927.

Petition for Rehearing Denied February 5, 1927.

J. A. Cobb and G. E. C. Hayes, both of Washington, D. C., for appellant.

W. C. Clephane and J. W. Latimer, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This suit was brought to obtain a construction of certain items of the last will and testament of Silas Holmes, deceased, purporting to dispose of his real estate. The appellant, Lorenzo Allen, is the testator's great grandson and next of kin, while the appellees are Walter Holmes, a nephew of testator, said to be his adopted son, and testator's surviving brother and the children of his deceased brothers and sisters.

The testator was a resident of the District of Columbia, and departed this life on December 25, 1897, survived by his wife, Annie Holmes, and his married daughter, Virginia Allen. His last will and testament was regularly admitted to probate and record in the District. By items 2 and 3 of the will he devised all of his real estate to his widow and daughter aforesaid, as joint tenants for the terms of their natural lives. The remainder, subject to these life estates, was dealt with by items 4 and 5 of the will, reading as follows, to wit:

"Item 4. That upon the decease of my said wife and daughter, the latter leaving issue her surviving, who are minors, all of said above described Real Estate, remaining unsold, as hereinafter provided, shall be sold by the then executor of my will, under the authority of the orphans' court of the District of Columbia, and the proceeds thereof invested under the orders of said court, and the interest arising from said investment applied to the support of said minor children of my said daughter, and the principal, upon said children arriving at the majority of the youngest of them, shall be divided into and paid to them in equal shares; after deducting from said principal one thousand dollars of said sum, which I hereby give, devise and bequeath to my nephew and adopted son, Walter Holmes.

"Item 5. If, after the decease of my said wife, my daughter shall die without leaving issue surviving, then and in that case, I will, devise, and bequeath all of said property to the said nephew and adopted son, Walter Holmes, and to my brothers and sisters then living, or to their heirs, if deceased, in equal shares."

In item 4, accordingly, the testator provides that after the death of his wife and daughter, if the latter leaves "issue her surviving, who are minors," and whom he describes later in the same item as the "said minor children of my said daughter," the real estate shall be sold and the money finally divided among them, subject to a bequest of $1,000 to his "nephew and adopted son," Walter Holmes.

Testator's widow died in the year 1916, and his daughter in 1921. The latter left no children or other descendants surviving her, except appellant, who is her grandson and a minor. He claims to be the devisee under item 4, upon the ground that he survived testator's said daughter as her issue, and is a minor, and that he comes within the classification of "minor children" as intended by the item. The lower court rightly held against this claim. The word "children," when used in a deed or will, has in law a well-defined meaning. It refers to the immediate descendants in the first degree of the person named as ancestor, unless there is something in the language of the instrument itself indicating a contrary intent. There is nothing in the language of item 4, indicating an intention upon testator's part to use the word in any unusual sense. It follows that, since testator's daughter died without leaving children surviving her, the devise in item 4 never became operative, and appellant can take nothing under it.

This brings us to item 5 of the will. That item contains a devise to Walter Holmes and the surviving brothers and sisters of testator or their heirs: Provided, however, that the devise shall not become effective unless testator's daughter should die "without leaving issue surviving." It is contended by appellant that testator's daughter did not die without leaving issue surviving her, since the appellant, her grandson, survived her. He contends, consequently, that the express condition upon which the devise depended had failed, and that the devise never became effective.

The appellees argue that in item 4 testator used the words "issue" and "children" interchangeably, and therefore that "issue," when used in item 5, should correspondingly be construed as equivalent to "children." If this construction be adopted, it would follow that the devise in item 5 would be effective, since testator's daughter died without children surviving her. The lower court sustained this contention, but we think this ruling erroneous. We are of the opinion that the word "issue," as used in item 5, should be construed as meaning descendants, which is its usual and ordinary sense, and that it should not be restricted so as to signify "children" alone.

The words "issue," or "lawful issue," when used in a will, are prima facie to be interpreted in their ordinary sense as embracing all future descendants, and are to be construed as words of limitation of the inheritance equivalent to the...