Dexter v. Inches
| Decision Date | 22 June 1888 |
| Citation | 17 N.E. 551,147 Mass. 324 |
| Parties | DEXTER et al. v. INCHES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.H. Gardiner, for children.
In the events that have happened, the clause to be construed is "If said Charles shall leave no widow, and shall leave issue, then, at his decease, the principal or capital sum shall be paid and distributed equally to and among the issue of said Charles." Our contention is that these words should be construed in a sense which we suppose no one whether lawyer or layman, doubts was really testator's intention, and which the court has ascribed to similar language. Bowers v. Porter, 4 Pick. 208; 4 Kent Comm. 278, note b; also 1 Bl.Comm. 447. The argument against us rests only on the fact that "issue" is used oftener than "children" to denote descendants of every degree. But "children" often has that meaning. See Houghton v. Kendall, 7 Allen, 76; Royle v. Hamilton, 4 Ves. 437. And see, also, Thompson v. Simpson, 1 Dru. & War. 459; Sibley v. Perry, 7 Ves. 522. We think that the construction to be given to the gift to the issue of Charles Inches is that they take per stirpes, and that the English cases on which the other side rely are neither consistent with modern principles, nor applicable to the conditions of our law. It is well settled that where a testator has made a gift to "issue," and has, in a subsequent part of the will, defined issue by directing, as here, that the issue shall take their parent's share, the word "parents" shows that by issue he meant children. King v. Savage, 121 Mass. 303; Sibley v. Perry, 7 Ves. 522; Pruen v. Osborne, 11 Sim. 132; McGregor v. McGregor, 1 De Gex, F. & J. 63; Robinson v. Sykes, 23 Beav. 40; Taylor v. Taylor, 63 Pa.St. 481. See, also, Ralph v. Carrick, 5 Ch.Div. 984, 11 Ch.Div. 873. The word "issue" was used in this will either in express reliance on Ellis v. Bridge, 2 Pick. 243, and Bowers v. Porter, 4 Pick. 198, which are recognized and followed in Haley v. Boston, 108 Mass. 576, or because the scrivener attached the same meaning to the word that the court did in those cases. Issue taking by force of the statute take per stirpes. Tillinghast v. Cook, 9 Metc. 148. We must try, as was said in Hall v. Hall, 140 Mass. 270, 2 N.E. 700, "to extract a meaning likely to meet what the testator would have desired." See In re Sibley's Trusts, 5 Ch.Div. 494; Cancellor v. Cancellor, 2 Drew & S. 194; White v. Stanfield, 146 Mass. ---, 15 N.E. 919; Minter's Appeal, 40 Pa.St. 111. The only cases where the construction for which we contend was suggested, but not followed, are Freeman v. Parsley, 3 Ves. 421, and Cancellor v. Cancellor, supra, and the latter is of no authority even in England. See Carter v. Bentall, 2 Beav. 551; Swift v. Swift, 8 Sim. 168; Goldie v. Greaves, 14 Sim. 348; Bryden v. Willett, L.R. 7 Eq. 472; North v. Martin, 6 Sim. 266; In re Hopkin's Trusts, 9 Ch.Div. 131; Pope v. Pope, 14 Beav. 593; Williams v. Teale, 6 Hare, 239; Fairfield v. Bushell, 32 Beav. 158.
R.F. Sturgis, for certain minor defendants.
The word "issue," applied to personal property, has received a construction equally extensive with "descendants," and comprehends descendants of every degree. 1 Jarm.Wills, (5th Amer.Ed. 101;) 1 Pow.Dev. (Jarm.Ed.) 278; Theob. Wills, (3d Ed.) 244; Haydon v. Wilshere, 3 Term R. 372; Hockley v. Mawbey, 1 Ves.Jr. 143; Freeman v. Parsley, 3 Ves. 421; Davenport v. Hanbury, Id. 257; Leigh v. Norbury, 13 Ves. 340; Maddock v. Legg, 25 Beav. 531; Weldon v. Hoyland, 4 De Gex, F. & J. 564. The principle established by these cases has been approved and followed both in the more recent English cases, and also by decisions in this country. Hobgen v. Neale, L.R. 11 Eq. 48; In re Corlass, 1 Ch.Div. 460; Ferry Co. v. Sisson, 17 N.J.Eq. 475; Allender v. Keplinger, 62 Md. 7; Wistar v. Scott, 105 Pa.St. 200. In the case at bar there are no words to restrict the true legal meaning of the word "issue." Roddy v. Fitzgerald, 6 H.L.Cas. 823, 876; Cancellor v. Cancellor, 2 Drew & S. 194; King v. Savage, 121 Mass. 303; Hall v. Hall, 140 Mass. 267, 2 N.E. 700; 2 Williams, Ex'rs, 1115. See Ralph v. Carrick, 11 Ch.Div. 873. It is submitted that in this will not a word can be found to show that the testator meant to restrict the meaning of "issue" in any way. The provision at the close of the will, "in case of the decease of any or either of my children before the receipt of his or her share, leaving issue him or her surviving, such issue shall represent and take the parent's share," cannot be held to bring the case within the rule in Sibley v. Perry, supra, for this phrase was simply in accord with the provisions of Rev.St. c. 62, § 22, and was clearly intended to prevent an intestacy as to a portion of the estate if any of the testator's children died before him. It cannot be made to relate back, and control the meaning of a word used in another clause, where it is surrounded by a different text. 2 Williams, Ex'rs, 1112, note b. The rule in Sibley v. Perry, supra, should not be regarded as an absolute rule of construction, but as merely showing that the word "issue" can be controlled by certain other words; and where there is a gift over in which the same word is used, as in the previous gift, the meaning should be the same. Ralph v. Carrick, 11 Ch.Div. 873. See Ross v. Ross, 20 Beav. 645. It is submitted that, in this commonwealth, the word "issue" has been given its true meaning by statute, and cannot be given a more restricted meaning than "issue per stirpes;" and, as has been said, there are no words used in the will to give "issue" any such meaning. "The word 'issue,' as applied to descent of estates, shall include all the lineal descendants of the ancestor." Pub.St. c. 3, § 3, cl. 11; Rev.St. c. 61, § 13. See Bigelow v. Morong, 103 Mass. 288.
OPINION
This is a bill brought by trustees under the will of Henderson Inches for instructions as to who are the parties entitled under a clause leaving one-eighth of the residue in trust for the testator's son Charles for life, and then proceeding as follows: Charles died, leaving no widow, but leaving three children, and also grandchildren and great-grandchildren, descendants of two of these three children; and the question is whether the grandchildren and great-grandchildren are entitled to share with the children from whom they are descended. The testator gave the residue of his property to his eight children in equal shares, seven of them taking their shares outright, but Charles' share being put in trust for him by a subsequent clause, with the above-recited limitation over, which we have to construe. The will further provides that "in case of the decease of either or any of my children before the receipt of his or her share, leaving issue him or her surviving, such issue shall represent and take the parent's share." The general scheme of the will, then, was one of equal division, in which the issue of any of the other seven children who died intestate would have taken by way of representation, and the issue of any child, including Charles, would have taken by way of representation, if that child had died "before the receipt of his share." However the English courts would construe the word "issue" in the clause before us, occurring in such a will, we cannot bring our minds to doubt that the testator intended issue to take in a...
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