Rivenett v. Bourquin
| Decision Date | 06 March 1884 |
| Court | Michigan Supreme Court |
| Parties | RIVENETT and others v. BOURQUIN and others. |
Property was left by will to the four children of the testatrix, none of whom were married at date of the will, with the proviso "that if any of my children die before me, my estate shall be divided among the survivors or their legal representative, share and share alike." One daughter married, and died before her mother, leaving two children. Held, that they took under the will the share that their mother would have taken had she survived the testatrix.
Error to Wayne.
F.A Baker, for appellants.
James H. Pound, for appellees.
On the fifteenth day of July, 1858, Victorie Rivenett made her last will. She then had four children, two daughters and two sons neither of whom were married. After giving her wearing apparel and certain other personal property particularly specified to her daughters, in equal shares, she then bequeathed her real estate and all her other personal property to her four children, by name, "in equal proportions to each, share and share alike;" and then added the following clause: "And in the event of either of my said sons or daughters dying before my death, then and in that case my said estate shall be divided among the survivors, or their legal representatives, share and share alike." The daughter Emma married Frederick Bourquin in 1860, and died in 1873, leaving two children George and Emma Bourquin, as her only heirs at law. The testatrix died on the sixth day of December, 1881. The main question under the will is, are Mrs. Bourquin's two children entitled, under the will of their grandmother, to the share their mother would have taken had she survived the testatrix? The judge of probate for the county of Wayne decided that the two grandchildrenwere entitled under the will to the share bequeathed to her mother; and on appeal to the circuit court for the county of Wayne the decision of the probate court was affirmed.
The case now comes before us on special findings of fact and law by the circuit judge. Comp.Laws, � 28, being section 5812, How.St., reads as follows: "When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator, unless a different disposition shall be made or directed by the will." Under this section the intention of the law-making power is unmistakable. It is very clear that not only are lapsed legacies avoided in the cases mentioned in the statute, but its provisions necessarily settle the question made in this case in favor of the children of Mrs. Bourquin, unless by the clear and unequivocal language of the will a different interpretation is made to appear. If there is any reasonable doubt about the question, the statutory construction must prevail, and the judgments of the two courts already given should be sustained. A large number of authorities might be here collated on either side of the question presented, but a review of the conflicting opinions would rather tend to confuse than elucidate the proper solution of the question, and could serve no useful purpose. The natural feeling of the testatrix towards her grandchildren, as shown by the testimony, pretty well indicates what should be the proper construction of the clause of the will we are now considering. When important rights are created by the use of language conveying the intention of the parties, under the ordinary and commonly-accepted meaning of the same among persons not acquainted with its technical legal signification, that meaning should be applied in construing the instrument under which such rights are created. To do otherwise would be not to apply, but to prevent, the law.
By the term "legal representatives" in this will was evidently meant the lawful heirs; a different construction is not claimed by either party. It is only in case of the death of one of the four children of the testatrix that she desired any of the property to go to "legal representatives" of any of her children. If the "legal representatives" intended are confined to those of the survivors, as claimed by counsel for appellant, then the term has no meaning in the will, because survivors could have no legal representatives. A will must be so construed that each word means something, if possible, and this cannot be done unless the words "legal representatives" mean the legal heirs of Emma Bourquin, which will entitle her children to their mother's share (had she lived) in the estate of the testatrix; and this, I think, is the true construction of the will.
The following are some of the cases and authorities which may be consulted with interest upon the questions involved, as they are not free from doubt: 2 Redf. Wills, 44, 45, 78, 79 Johnson v. Johnson, 3 Hare, 157; 1 Jarm. Wills, 328; Branson v. Hill, 31 Md. 190; Moore v. Lyons, 25 Wend. 119; Bridge v. Abbott, 3 Brown, Ch.Cas. 224; Smith v. Palmer, 7 Hare, 225; King v. Cleaveland, 26 Beav. 26; Holloway v. Radcliffe, 23 Beav. 163; King v. Cleaveland, 4 DeGex & J. 477; Winter v. Winter, 5 Hare, 306; Edwards v. Symonds, 6 Taunt. 213; Garey v. Whittingham, 5 Beav. 268; Locker v. Bradley, Id. 593; Stopford v. Chaworth, 8 Beav. 331; Salisbury v. Petty, 3 Hare, 93; Jarvis v. Pond, 9 Sim. 549; Coulthurst v. Carter, 15 Beav. 421; Ive v. King, 16 Beav. 54; Barnes v. Ottey, 1 Mylne & K. 464; Gray v. Garman, 2 Hare, 268; Harrison v. Foreman, 5 Ves. 207; Cotton v. Cotton, 2 Beav. 67; Bond's Appeal, 31 Conn. 183; Ram, Wills, 96; Gittings v. McDermott, 2 Mylne & K. 69; Doe v. Wilkinson, 2 Term R. 209; Doe v. Dring, 2 Maule & S. 448; 2 Jarm. Wills, 742; Bender v. Dietrick, 7 Watts & S. 284; Howard v. Amer. Peace Society, 49 Me. 288; Areson v. Areson, 3 Denio, 458; Minter's Appeal, 40 Pa.St. 111; Lessee of Hauer v. Sheetz, 5 Bin. 546; Russell v. Long, 4 Ves.Jr. 551; Roebuck v. Dean, 2 Ves.Jr. 264; Fisher v. Hill, 7 Mass....
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