Boyle's Estate, In re

• Decision Date: 08 May 1950
• Docket Number: No. 16420,16420
• Citation: 221 P.2d 357,121 Colo. 599
• Parties: , 36 A.L.R.2d 1106 In re BOYLE'S ESTATE. FEENEY et al. v. MAHONEY et al.
• Court: Colorado Supreme Court

Page 357

221 P.2d 357

121 Colo. 599, 36 A.L.R.2d 1106

In re BOYLE'S ESTATE FEENEY et al. v. MAHONEY et al.

No. 16420.

Supreme Court of Colorado, en Banc.

May 8, 1950.

C. Clyde Barker, Denver, for plaintiffs in error.

Thomas M. Tierney, Denver, for defendants in error, Mike O'Boyle and John O'Boyle.

HOLLAND, Justice.

This action involves a review of a judgment of the county court entered on a petition of the executor for construction of the will of Joseph P. Boyle, deceased, which was admitted to probate on January 6, 1949. It concerns the question of the lapse of a legacy, and also a lapse of a part of the residuum.

On March 23, 1943, Joseph P. Boyle, the deceased, executed the will involved. He thereafter became insane, and died October 21, 1948. Bridget Feeney, a sister, and one of the beneficiaries under his will, preceded him in death. She was the mother of John Feeney, a minor, one of the plaintiffs in error, and the wife of Patrick Feeney, coplaintiff in error.

After directing the payment of debts, including funeral and testamentary expenses, the will provided as follows:

'Second: To my beloved sister, Mrs. Bridget Feeney, of 1519-3rd Avenue, New York City, New York, I give and bequeath the sum of Six Thousand Dollars ($6,000.00), for herself, her heirs, personal representatives and assigns, forever; and also bequeath to her the sum of Twenty-five Hundred $ insurance of The Capital Life Insurance Company of Denver

'Third: To my beloved brother, Mike O'Boyle, of 30-40-29th Street, Astoria, Long Island, New York, I give and bequeath the sum of Four Thousand Dollars ($4,000.00), for himself, his heirs, personal representatives and assigns, forever.

'Fourth: To my beloved brother, John O'Boyle, of 305 East 85th St., New York City, New York, I give and bequeath the sum of Four Thousand Dollars ($4,000.00), for himself, his heirs, personal representatives and assigns forever.

'Fifth: All the rest, remainder and residue of my property, of every kind and character, real, personal and mixed, and wheresoever situate, I give, devise and bequeath unto my sister, Mrs. Bridget Feeney, my beloved brother, Mike O'Boyle and my beloved brother, John O'Boyle, share and share alike and in equal portions, for themselves, their heirs, personal representatives and assigns, forever.'

The will was prepared by one of the executors, an attorney, whose experience and competence is not only well established, but admitted by all counsel here appearing.

In the petition for construction of the will, petitioner alleged the death of Bridget Feeney, and on the hearing, the court, after taking some testimony and hearing the arguments of counsel, entered its judgment as follows:

'1. That the legacy of $6,000 given to Mrs. Bridget Feeney lapsed by her death prior to the death of the testator and was and is a part of the residuary estate.

'2. That Mike O'Boyle and John O'Boyle each take one-half of the residuary estate, including said lapsed legacy of $6,000, and including the lapsed residuary estate given to Mrs. Bridget Feeney; the said Mike O'Boyle and John O'Boyle each take one-half of the entire estate.'

This judgment was upon a finding in answer to the three questions propounded in the petition:

'(a) Does the legacy of Six Thousand Dollars ($6,000.00) given to Mrs. Bridget Feeney, who predeceased the testator, pass into the residuary estate, or should it be distributed to the heirs at law as intestate property?

'(b) Does the legacy of Six Thousand Dollars ($6,000.00) to Mrs. Bridget Feeney, or the residuary estate which she would have received had she survived the testator, or either of said legacies, go to the heirs of Mrs. Bridget Feeney?

'(c) Do the said Mike O'Boyle and John O'Boyle take the entire residuary estate, or do they each take one-third of the residuary estate, with the other third of said residuary estate passing to decedent's heirs at law as intestate property?'

On the questions involved, we are asked by counsel for plaintiff in error, by well-reasoned briefs, to substitute our construction of the will before us for that of the concededly able judge of the county or probate court. This we are slow to do unless it appears that his construction is inconsistent with what seems to be the entire scheme of the will. So far as the decisions of this court are concerned, we are without pattern, or precedent on the exact questions that have here arisen. Decisions of other tribunals, while based on closely similar testamentary expressions, are helpful, although they come to us under slightly different environment of the testator, and, in many instances, without controlling statutes.

This cases rests squarely on the answer to two questions: Did the legacy of Bridget Feeney, a sister of the testator, lapse and sink into the residue of the estate upon her death prior to that of the testator? If her legacy lapsed and became a part of the residue, of which, by the residuary clause, she was a named legatee, did her share of the residue further lapse into the residue, or did it become intestate estate?

Under certain circumstances our legislature has provided against the lapse of a legacy as well as providing for the disposition of a legacy if lapsed. When applicable, these statutory provisions must control. These provisions are by 1949 amendments and are under section 1 (Section 45) and section 2 of chapter 254, Session Laws of 1949, and are:

"Section 45. Whenever a devisee or legatee in any last Will, being a descendant of the testator, shall die before such testator, and no provisions shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take per stirpes the estate devised or bequeathed, as the devisee or legatee would have taken had he survived the testator, and if there be no such issue at the time of the death of the testator, the estate disposed of by such devise or legacy shall be considered, treated and be deemed a part of the residue of the estate of such testator.'

'Section 2. If any devise or legacy under any will shall lapse, such devise or legacy shall be considered, treated and be deemed a part of the residue of the estate of the testator.'

Bridget Feeney was a sister of the testator, to whom he was unquestionably devoted. They lived together for many years and her love and affection for him was shown by her care and attention in his failing days. His preference to her is clearly and unmistakably evidenced by providing that she be the first taker under the will; by the increased amount of the specific legacy, which was augmented by his gift to her of $2,500 life insurance; and finally by intending that she share equally in any residue of his estate. The specific legacy to her provided that it was '* * * for herself, her heirs, personal representatives and assigns, forever; * * *.' The residuary clause provided '* * * unto my sister, Mrs. Bridget Feeney, my beloved brother, Mike O'Boyle and my beloved brother, John O'Boyle, share and share alike and in equal portions, for themselves, their heirs, personal representatives and assigns, forever.'

Plaintiffs in error are John Feeney and Patrick Feeney, respectively a minor son and the husband of Bridget Feeney, deceased. It is shown that the testator became mentally incompetent and finally insane prior to the death of his sister, Bridget Feeney, and, therefore, no opportunity was presented for a change in his will after the happening of the event of his sister's death, and such event not being contemplated.

At this point it is helpful to quote the findings of the learned trial judge, with a part of which we are in harmony:

'First. It is the opinion of the court that the legacy to Mrs. Feeney did lapse; that the language used is language of limitation or description and not language of substitution. The authorities seem to agree that ordinarily if the language in this will had been to Mrs. Feeney 'and' her heirs, etc., that in most instances this would have created language of limitation and not substitution whereas, on the other hand, if the word 'or' had been used, it would have constituted language of substitution and not that of limitation or description. The authorities are not uniform in this construction, but that appears generally to be the rule. On the other hand, in the case at bar, neither the word 'and' nor 'or' was used. In such instance Mr. Murdock quotes cases which are in point to show that generally this constitutes language of limitation and not of substitution, unless of course there is language in any other portion of the will which indicates a contrary intent, which I am unable to find. Strengthening this view is the fact that the clause in the will first above quoted concludes with the expression 'and assigns,' which would raise the presumption that the preceding commas were to be construed as 'and' rather than as 'or.' In other words, it is more logical to assume that since the clause ends with 'and,' that that word should be brought forward to substitute for commas, rather than to bring the word 'or' into this language, for no reason at all.

'Second. There seems some authority for the proposition that, since Mrs. Feeney, who predeceased the testator, is also one of the three named residuary beneficiaries, that her specific legacy, having lapsed, would not pass into the residuary clause, as would be true in all other cases. This rule is announced in certain Illinois cases. It seems to the court that this is purely an arbitrary rule, and that the contrary rule named in Massachusetts and other authorities is much more reasonable. In other words, the purported reason for this distinction recited in the Illinois cases is the improbility of assuming that a testator would refer in a residuary clause to someone who is dead. As I view the matter, this is no more improbable than the fact that he would refer to someone who was dead in a specific or general legacy clause. In either...