In re Nicholson's Will
| Decision Date | 31 January 1902 |
| Citation | 88 N.W. 1064,115 Iowa 493 |
| Parties | IN THE MATTER OF THE WILL OF JOHN NICHOLSON, deceased, JOHN DOWNING, by his next friend, Appellee, v. ELIZABETH NICHOLSON, Executrix of the last will and testament of John Nicholson, deceased, Appellant |
| Court | Iowa Supreme Court |
Appeal from Allmakee District Court.--HON. L. E. FELLOWS, Judge.
THIS is a special action in which John Downing, a grandnephew of John Nicholson, deceased, asks the court to declare him to be a devisee under the will of the said Nicholson, and to order distribution of the estate accordingly. The trial court granted the relief asked, and the executrix appeals.
Reversed.
D. J Murphy for appellant.
W. S Hart for appellee.
John Nicholson died testate June 2, 1898. His will was executed May 19th of the same year. This will made certain bequests to relatives and others, and contained the following residuary clause: "After paying all the foregoing amounts, I give and bequeath the balance of my property to be divided equally between all my nephews and nieces." John Downing, the applicant herein, is a son of Mary Fitzpatrick, nee Nicholson; and Mary Fitzpatrick was a daughter of Michael Nicholson, a brother of the deceased. Mrs. Fitzpatrick, applicant's mother, died June, 15, 1883, which, as will be observed, was long prior to the time John Nicholson made his will. John Downing, who is a grandnephew of the deceased, claims that he is entitled to take, under the residuary clause of the will, the share his mother would have received, had she outlived the testator. This clause devises the remainder of his property to testator's nephews and nieces as a class, and applicant is not one of that class. His claim, however, is that he is a substituted legatee, and as such is entitled to the share his mother would have received had she outlived the testator. A devise to nephews will not include grandnephews unless there be something in the context which shows that testator intended to include them, or unless there be such an ambiguity as authorizes extrinsic evidence for the purpose of showing that grandnephews were intended to be included. The case was decided by the trial court on the pleadings, and the facts we have recited are the only ones admitted by the parties. True, something is said in the petition about the intention of the testator; but this is denied in the answer, and therefore cannot be treated as a fact in the disposition of the case. The proposition of law announced is too plain for controversy, and we need only cite in its support In re Woodward, 117 N.Y. 522 (23 N.E. 120, 7 L. R. A. 367), and cases therein cited. Applicant practically concedes this rule, but he relies on section 3281 of the Code, which reads as follows: "If a devisee die before a testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest." The mischief this statute was enacted to cure was the common law rule to the effect that a devise to one who dies before the death of the testator lapses. McMenomy v. McMenomy, 22 Iowa 148. Nearly every state in the Union has adopted statutes similar to this, although few are as comprehensive. Some of them apply only to cases where the original beneficiary was a child or other lineal descendant of the testator; some to cases where the beneficiary is a child or other relative, and dies leaving issue surviving the testator (and in some of the states of this group the statute applies only to certain classes of relatives, who are clearly pointed out by the statute); and some to all cases, no matter what relation the beneficiary is to the testator, or whether the beneficiary leaves descendants or not. See statutes and cases cited and referred to in 18 Am. & Eng. Enc. Law, pp. 755, 756, et seq. The remedy for this mischief of the common law was first adopted in this state with the Code of 1851, which was in the same language as the statute under consideration, save that in place of the word "property" the word "amount" is used. Section 2319 of the Revision is a copy of section 1287 of the Code of 1851, and this same language is carried into section 2337 of the Code of 1873. For more than 50 years it has been the policy of this state to prevent lapses where a devisee dies before the death of the testator, and this has been done by the use of the broadest and most comprehensive language. We are now, for the first time, called upon to determine whether or not this section applies to a devise to a class, and, if so, whether or not it applies to such devisees when one of that class is dead at the time testator made his will; and this without the aid of other extrinsic evidence, save such as identifies the persons belonging to the class, and identifies the claimant as a grandnephew of the testator. On entering this field, we, as usual, find quite a number of conflicting decisions, and are again reminded that it seems almost impossible to write a statute in language so clear that it may not be the subject of controversy.
Since a will speaks from the day of the testator's death, the members of the class, where the devise is to a class, are prima facie to be determined upon the death of the testator. Ruggles v. Randall, 70 Conn. 44 (38 A 885); Richardson v. Willis, 163 Mass. 130 (39 N.E. 1015); Buzby v. Roberts, 53 N.J.Eq. 566 (32 A. 9). But this is not an unyielding rule, even at common law. The will itself may indicate a contrary intent, and if that be so this intent will be adopted and enforced. In re Swenson's Estate, 55 Minn. 300 (56 N.W. 1115); Bailey v. Brown, 19 R.I. 669 (36 A. 581). Under the common law rule, the members of the class to whom testator left his residue estate would be determined upon the day of his death; and, as applicant herein is neither a nephew nor a niece, he would be excluded. Applicant's counsel contend, however, that the statute which we have quoted modifies this rule to this extent: that, although the members of the class are to be determined as upon the day of the testator's death, yet, as the applicant is an heir of one of that class, who would have taken under the will, had his mother survived, he is entitled to her share, and that the decree of the trial court, so holding, is correct. Some of the cases hold that the general common law rule with reference to gifts to a class is not affected by these statutes, for the reason that they are only intended to apply where something is given by will to one who dies before the testator, and have no application to gifts to a class, where the gift is, in legal effect, only to the members of that class in existence at a designated time. See In re Harvey's Estate [1893] 1 Ch. 567; Martin v. Trustees, 98 Ga. 320 (25 S.E. 522). This is also the rule in England. Olney v. Bates, 3 Drew. 319; Browne v. Hammond, Johns. Eng. Ch. 210. But in other states these statutes are held applicable to gifts to a class as well as to individuals. Howland v. Slade, 155 Mass. 415 (29 N.E. 631); Bray v. Pullen, 84 Me. 185 (24 A. 811); Strong v. Smith, 84 Mich. 567 (48 N.W. 183); Parker v. Leach, 66 N.H. 416 (31 A. 19); In re Bradley's Estate, 166 Pa. 300 (31 A. 96); Jones v. Hunt, 96 Tenn. 369 (34 S.W. 693); Wildberger v. Cheek's Ex'rs, 94 Va. 517 (27 S.E. 441). The numerical weight of authority seems to favor this rule, although it also will yield to the intent of the testator as found in the context of the will, or as shown by competent and legitimate evidence. White v. Institute, 171 Mass. 84 (50 N.E. 512); Bigelow v. Clap, 166 Mass. 88 (43 N.E. 1037); Almy v. Jones, 17 R.I. 265 (21 A. 616, 12 L. R. A. 414). The reason for this general rule appears to be that, as the statute is remedial in character, it should receive a liberal construction, so as to advance the remedy and suppress the mischief; that wills are presumed to be drawn with reference to existing laws and that in arriving at a testator's intent we must presume that he had knowledge of the law, and drafted his will accordingly; that in gifts of the class in question a testator is presumed to treat all members of the class as surviving, although some of them be dead, and that, in the absence of other evidence, this presumption will be conclusive; and that there is no substantial difference between a gift to all of a class and a gift to each member thereof, naming them. where there is such conflict in authority, much may be said in support of either rule. Despite the temptation, we will not enter into a further discussion of the matter, but content ourselves with saying that we prefer the doctrine announced by the greater number of the cases as a rule of general application, but that, like all other rules on the subject, it...
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