Howell v. Gippord

• Citation: 53 A. 1074,64 N.J.E. 180
• Parties: HOWELL v. GIPPORD et al.
• Decision Date: 26 January 1903
• Court: New Jersey Court of Chancery

53 A. 1074

64 N.J.E. 180

HOWELL

v. GIPPORD et al.

Court of Chancery of New Jersey.

Jan. 26, 1903.

Bill for the construction of the will of Theodore P. Howell, by Samuel C. Howell, executor, against Elizabeth H. Gifford and others, defendants. Decree rendered.

J. B. Kirkpatrick, for complainant.

Halsey M. Barrett, for defendant.

H. Clay Howell. John R. Hardin, for defendant executor of Henry C. Howell.

STEVENS, V. C. This bill is filed to obtain a construction of the will of Theodore P. Howell. He died December 3, 1878, leaving, him surviving, his widow, Elizabeth W. Howell, who died February 12, 1903, and six children. Of these children four (a son and three daughters) died in their mother's lifetime, and two (a son and daughter) survive her. By this will testator gave to his wife for life "the use of the income and interest" of all his estate, real and personal, which interest and income, or so much thereof as she might require, to be paid to her by his executors for her and her daughters' support. The fourth paragraph of his will proceeds as follows: "Fourthly. After the death of my said wife, Elizabeth, I will that the principal sum of my estate, with the accumulations thereof, and of which I have given to her the income thereof, be divided among all my children, each to have an equal share thereof; the parts or shares thereof going to my sons to be paid to them, but with respect to the parts or shares which will thus go to my daughters I wish and direct the same to be kept and retained by my executors, and safely invested, and held in common fund, and the income and interest thereof paid to my said daughters during the term of their respective natural lives, each to have an equal share thereof, and the same to be paid upon the respective individual receipt of said daughters. Upon the decease of either one of said daughters leaving lawful issue her surviving, then after the death of my said wife I direct the portion of my estate of which I have thus given her the income shall be paid to her said children, each to have an equal part thereof; and, if any of said children be under age, then said payment is to be made to its legally constituted guardian. Should any of my said children, son or daughter, die without leaving lawful issue him or her surviving, then the share of the surviving son in such decedent's portion of my estate so held by my executors shall be paid said son or his heirs or legal representatives; but the daughters' shares in said decedent's portion shall be retained by my executors, and continued in the common fund, and the interest and income paid, and finally upon the death of said daughters, respectively, the principal, as hereinbefore is provided for the payment of the income and principal of said daughters' shares of my estate."

Two questions are raised by the bill. The first relates to the shares of Henry C. Howell, testator's deceased son. He died in January, 1900, and left two children,—Elizabeth H. Gifford and H. Clay Howell—both of whom are now living. The question is to whom, under paragraph 4, does Henry C. Howell's share go,—to his executors or to his children? The second question relates to the share of Elizabeth H. Mitchell. She died in October, 1900, after her brother Henry, without leaving issue. The question is, do "the heirs or legal representatives" of Henry take a proportionate part of Elizabeth's share, and, if so, who are meant by this designation?

The answer to the first question is not doubtful. Henry took a vested interest in his share from the time of his father's death, payment being postponed during his mother's life. This share was subject to be devested only by his death in his mother's lifetime without leaving issue. The bare reading of the clause makes this evident: "After the death of my said wife * * * I will that the principal sum of my estate, with the accumulations thereof, * * * be divided among all my children, each to have an equal share thereof; the parts or shares thereof going to my sons to be paid to them. * * * Should any of my said children, son or daughter, die without leaving lawful issue him or her surviving, then the share of the surviving son in such decedent's portion shall be paid," etc. The gift to the survivors is found in the direction to pay or retain, and this payment is to be made on the happening of one contingency only, viz., death without leaving lawful issue. As the contingency did not happen, the gift became, at Henry's death, indefeasible. It was to go over if he died leaving no issue, and, as he left issue, the vested estate which he took in the first instance continued. If it had not been so earnestly Insisted that the cases of Baldwin v. Taylor, 37 N. J. Eq. 78, and Denise v. Denise, Id. 163, were opposed to this view, I should not have thought the case open to argument. That these cases are inapplicable to the present situation will be seen on a little consideration. In the first place, there can be no question but that the estate vested in Henry at testator's death. It is true that the will provides, "After the death of my said wife I will that the principal sum be divided, * * * the parts or shares going to my sons to be paid to them," etc., and that this direction, standing alone, if no life estate had been interposed, would have made the gift contingent; but, as the purpose of the postponement was to let in the interest of the widow, the estate vested at once. Post v. Herbert's Exr., 27 N. 3. Eq. 542; Miller v. Worrall, 50 N. J. Eq. 134, 44 Atl. 890 (affirmed on appeal). It is immaterial, says Chancellor Green in Howell's Ex'rs v. Green's Adm., 31 N. J. Law, 574, whether the gift to the legatee for life is of the fund or of the interest or use of the fund. The precise point raised on behalf of Henry's children is that they take an estate by implication arising out of the words, "should any of my children die without leaving lawful issue," etc., the argument is that, as testator had not in terms provided for the care of children dying leaving issue, and has only given the estate over in case they die without leaving issue, he must have intended the issue to take if he left any, and consequently he must be assumed to have given it to the issue. It is difficult to put this contention in plausible form, as applied to a cause like the present; for we at once ask ourselves, why imply an estate in the issue of the son, when, in express words, we find it given to the son himself? In Denise's Ex'rs v. Denise, 37 N. J. Eq. 163, testator gave to each of his seven children an equal share of his residuary estate, and then provided that, in case any of his said children should die without leaving lawful issue, the share of such as might die without issue was to be divided amongst the survivors, share and share alike. It was held that an estate by necessary implication was given to the issue of two children who died in their father's lifetime. Vice Chancellor Van Fleet said: "No bequest, it will be observed, is made to the survivors unless the first legatee died without leaving lawful issue. It is clear, then, the survivors do not take. The contingency on which they were to take has not happened. Where, then, did the testator intend the shares of such of his children as should die before distribution, leaving issue, should go? It is plain that he did not intend to die intestate as to any part of his estate. A devise or bequest may arise from implication. * * * To create a bequest in that way the implication on which it is founded must be a necessary one." He then says: "I think it is quite apparent the testator intended that the issue of any of his children who should die before distribution should take that share of his residuary estate which his will gave to their parent." This case appears to me to go to the verge of the law, and to rest upon no other foundation than the assumption that testator did not intend to die intestate. It may be doubted whether the assumption can properly be made since the passage of the act which provides (Gen. St. p. 3703, § 34) that, when a legatee being a child or other descendant of the testator shall die during the life of the testator, the legacy shall not lapse, but the estate bequeathed shall vest in such child or children in the same manner as if such legatee had survived the testator and had died intestate; but assuming, as I must assume here, that the decision is correct, the case in hand is easily distinguishable. The will gave Henry Howell an estate absolute and indefeasible, except on a contingency, which has not happened, and consequently the only ground upon which the vice chancellor rested his decision, viz., the supposed necessity of averting intestacy as to a portion of the estate, is here wanting. What is really sought, therefore, is, not to obtain a construction which will avert intestacy, but one which will, by implication, first cut down the estate given, and then assign to Henry's children a part of that which the will, in terms at least, gave to Henry himself. In the Denise Case no life interest had been interposed, and the testator's sons had died in their father's lifetime. Their shares never vested in them. Under the law as it was before the enactment above mentioned, testator would have died intestate as to their shares of the residue unless a gift by implication had been raised in their issue, and it was this consequence which it was thus sought to avert. Death without issue meant, necessarily, death in the lifetime of testator. In the case in hand it means death in the lifetime of the tenant for life. Salisbury v. Petty, 3 Hare, 86, 93.

The decided cases are in harmony with the conclusion I have reached on what seems to be the natural and obvious meaning of the words themselves. Thus, in the case of Barnfield v. Wetton, 2 Bos. & Pul. 324, testator devised to his wife for life, and from and after her decease he gave all his copyhold messuages and premises unto...