Armstrong v. Armstrong

• Decision Date: 18 January 1853
• Citation: 53 Ky. 333
• Parties: Armstrong <I>vs.</I> Armstrong.
• Court: Kentucky Court of Appeals

53 Ky. 333

Armstrong vs. Armstrong.

Court of Appeals of Kentucky.

January 18, 1853.

ERROR TO THE MASON CIRCUIT.

Judge SIMPSON delivered the opinion of the court.

John Armstrong made and published his last will and testament on the 25th of March, 1851. He had been twice married, and at the date of his will had seven living children — three by his first and four by his last wife. He devised to each of these seven children a specific portion of his estate, and after making some bequests to his grand-children and to other persons, he inserted the following residuary clause in his will, viz: "All the rest of my estate not hereby disposed of I wish equally divided between my three children living, and my four children by my last wife, except that in addition to the bequeathments made to Amelia, Harriet, and Sally, they be paid one thousand dollars each for the purpose of procuring furniture when they may want it for house-keeping.

On the first day of May, 1851, he made a codicil to his will, and on the 5th day of the ensuing month he added another codicil to it, and departed this life on the 12th of August, 1851. On the 21st of May, 1851, in the lifetime of the testator, and before he added the last codicil to his will, Sally, his youngest child died, being at the time of her death about five years old. Sally was one of the four children by his last marriage, and the testator's will contains a devise to her of a large amount of real and personal property. The last codicil to the will, which was made after her death, makes no allusion to that event, nor to that part of his estate which the testator had devised to her.

After making the devises already mentioned, to his seven children, the testator inserted the following clause in his will, viz: "Item 12th. It is my express desire, and so I will it, that the real estate in the foregoing bequeathments be held sacred for the support and comfort of those to whom it is given, during their natural life, and that the same descend to their children at their demise; but in the event of any of said children departing this life without issue, or such issue dying themselves, then that portion so willed to each person, thus departing this life, shall descend to the full brother or sisters who may survive, to be divided as nearly equal among them as may be; and in the event of their all departing this life, then the whole estate, real and personal, is to be divided among my first wife's children."

The controversy in this case relates to the property devised by the testator to his daughter Sally. On the one side it is contended, that as she died in the lifetime of her father, the devise to her lapsed, and the property, having fallen back into the testator's estate, passed under the residuary clause in his will to all his children living at the time of his death. On the other side, it is contended that the devise over takes effect notwithstanding her death in the lifetime of the testator, and that the property devised to her belongs exclusively to her full brother and sisters who survived her.

The only other parts of the will that have been relied upon to elucidate the question in issue between the parties, are the following: "Item 17th. Should any reverse of circumstances transpire or occur to lessen the bequeathments made by this instrument, then it is my will that each legatee suffer a diminution in the amount willed to them in proportion to the loss sustained." "I find on a survey that my daughter Amelia has a few hundred dollars less bequeathed to her — it is my will that her portion, in money, be made up to the amount given to my other children, as near as may be."

The argument based upon the last mentioned provisions of the will is, that they show conclusively that the general and prevailing intention of the testator was to produce the most perfect equality among all his children, at the period of his death, and it would be inconsistent with this intention for this devise over to be sustained, and thereby exclude some of his children from a participation in the part of his estate so devised.

The 13th item of the will, however, is in the following language: "Whereas, many years past I made a disposition of other portions of my estate to my children by my first wife, which is on record in the office of the clerk of the county of Mason; and whereas, the sums advanced to my children by my first wife are principally charged to them and my sons-in-law, on my large ledger — it is my will that each of their accounts, as they thereon stand, be in full of any demand on my real and personal estate, except such sums as are in this instrument provided for."

It might be regarded as exceedingly doubtful, considering all these provisions in the will in connection with each other, whether the solicitude manifested by the testator, that perfect equality should exist among the legatees, was not confined to his children by his last wife, who were all young, and none of whom had been previously advanced or otherwise provided for. This inference in regard to his intention is strengthened by the fact that the calculation he made and attached to his will, of the amount of stocks and money he had bequeathed to each of these four children, shows that the amount given to Amelia, who was one of them, was less than that which was given to either of the other three, but at the same time it was much larger than the amount he bequeathed to either of his three children by his first wife. How much the latter had previously received by way of advancement does not appear in this record, but whatever it was, it, together with what was devised to them in the will, constituted all of the testator's estate which they were to be entitled to.

But if it be conceded that the object of the testator was to produce entire equality among his living children in the distribution of his estate, and to continue that equality up to the period of his death, if they all lived until that time, still it is perfectly obvious that he did not intend such equality to be continued, in the event that either of the younger set of children should afterwards die without children; and, although he probably did not, when he made his will, contemplate the occurrence of such an event in his lifetime, yet if he had, the presumption is strong that he would have made the same disposition of that portion of his estate, which he intended for the deceased devisee, that he has actually made in his will.

It is apparent, from the twelfth clause in the will, that the testator intended to set apart that portion of his estate which he devised to his four younger children, exclusively for their benefit, and that, upon the death of either of them without children, the part given to such devisee should go to the survivors. Why then should his intention, thus clearly manifested, be presumed to have had reference alone to the happening of this event after his death? He provided for it as an occurrence that was probable, and whether it happened in his lifetime or after his death, the result would be the same, if the estate of the devisee passed to the other children. The same reason that would influence him in the one case would equally influence him in the other.

But it is contended, that the making of the codicil after the death of his daughter, without any allusion to that event, especially when the legacies therein bequeathed by him to his grand-children are taken into consideration, shows that the testator regarded the legacy to his deceased daughter as having lapsed, and in consequence thereof greatly increased, by the provisions of the codicil, the legacies that he had previously given to his grand-children.

By the estimate heretofore alluded to, which was annexed by the testator to his will, it appears, that after deducting all the legacies made by him from the total amount of his personal estate, there still remained a balance thereof, which exceeded the total amount of the additional legacies contained in the codicil. No presumption then can arise that the testator made this codicil to his will for the purpose of disposing of that part of the estate which he had given to his daughter Sally, on the supposition that it had lapsed, inasmuch, as independent of it he had a portion of his estate, which he had not specifically disposed of, more than sufficient to satisfy all these additional legacies.

A codicil is in legal effect a re-publication of a will, and the whole is to be construed together as if the will had been executed at the date of the codicil. When thus construed it is evident that the devise over, after the death of Sally, must be regarded as having been confirmed by the testator. Davis' heirs v. Taul and wife, 6 Dana, 51. But as the codicil under consideration was only executed in the presence of one subscribing witness, and for that reason is not a republication of that part of the will which disposes of the real estate, it can only be relied upon to evince the intention of the testator that the devise over should take effect, and not fail because of his daughter's death in his lifetime. So far then as the intention of the testator is to control the construction of the will, it will, in our opinion, operate decisively in sustaining the validity of the limitation to the surviving brother and sisters of the deceased devisee.

The rule that a devise or legacy lapses by the death of the devisee or legatee, in the lifetime of the testator, instead of being consistent with his intention most commonly operates to defeat it; but it is a rule of necessity, because where there is no devisee there cannot be a devise. If, however, there be any person appointed by the will to take in case of the death of the first devisee, and the person so appointed can, upon that event, take in the manner contemplated by the will, the devise will not lapse, although the devisee dies before the testator, but the ulterior gift takes effect...