sctiaeffer v. sciiaeeeer.

• Decision Date: 10 December 1903
• Citation: 54 W.Va. 681
• Parties: sctiaeffer v. sciiaeeeer.
• Court: West Virginia Supreme Court

54 W.Va. 681

sctiaeffer

v.sciiaeeeer.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1903

Decided December 10, 1903.

1. Survivorship.

Does survivorship in a will relate to the death of a testator or of the death of tenant for life or o her point of time? (p. 683).

2. The Word "or" in a Will.

A will gives tester's widow a life estate, with power to sell some realty and consume its proceeds, and then says, "at the death of my wife what, real estate and personal property may he left shall he sold, and divided equally among my children, or their children, or their representatives."

Testator's children took no absolute or vested estate during the life tenancy, and such estate could vest only in those living at its close, and a deed of trust for debt given by a child tlyiog before the life tenant has no effect upon testator's property against children of such child, (p. 6^4).

i

Appeal from Circuit Court, Jefferson County.

Bill by William Sehaeffer's Administrator against Emanuel (582

Schaeffer's Administrator. Decree for plaintiff and defendant appeals.

Reversed.

D. B. Lucas and J. M. Mason, for appellant.

D. C. Westenhaveb Joseph Trapnell and Forrest W. Brown, for appellee.

Brannon, Judge:

William Schaeffer made a will by which he gave to his wife for life, all his real and personal property, with power to sell some and use its proceeds, and then provided that "at the death of my wife what real and personal property may he left shall he sold and divided equally among my children, or their children, or their representatives." The testator died leaving his widow. Two of his sons, John W. and Emanuel, gave deeds of trust to secure debts on their interest in their father's estate, and then died during the life time of said widow. One of the said sons left a daughter, Deborah Merchant, and the other left children one named Cora Merrit. The administrator with the will annexed of the testator having sold the land filed a bill to construe the will and give him directions how to dispose of the fund, there being conflicting claimants, the creditors of the dead sons claiming under said deeds of trust payment of their debts out of the fund, on the theory that the sons who made said trust deeds had vested estate in the land, while their children denied that their fathers had any estate for the deeds of trust to operate upon. A decree was pronounced holding that the sons took a vested estate at their father's death, and that the deeds of trust were effective, and directing their satisfaction out of the fund.

I fad the two sons a vested property in the estate of thei? father, so that flu deeds of trust given by them would be good against their children? Did the will vest those sons with an estate1 at their father's death, or had they only a contingent remainder after their mother's life estate, to become vested only in case they should survive her? Counsel for the trust creditors say that the worels "or their children" are words of survivorship and that they show that the testator had in contemplation that some of his children might die, and that the question is the time of such death; in other words, did he flunk of such death occurring before his own death or afterwards.

They say that he contemplated it as occurring before his own death, and that he used those words to prevent a lapse of the legacies by their death in his life time. Viewing it as a question of survivorship they make the burden of their argument and seek to control the case by the principle found in Kirby v. Martin, 11 Oat. 67, that "in a devise or bequest to survivors at the death of a devisee or legatee for life, in the absence of the expression of a particular intent on the part of the testator, the survivorship has relation to the death of the testator." Counsel say that estate absolute vested in the sons at the testator's death. It is not demanded in this case that we say whether or not that principle is sound; for if we treat the case as one of survivorship, even under that rule we can say that the survivorship does not relate to the death of the testator, but to that of the1 life tenant, because that rule says its application depends upon whether the will manifests another intent, as the will in hand does.

However, speaking for myself, I am at present ready to say that the rule is not sound. Once it was, but not now. Numerous English decisions once upheld it. Jarman on Wills, p. * 1538, (6 ed. 667), after giving numerous cases stating that rule says: "The sequel will serve to show that no rule of construction, however sanctioned by repeated adoption, is secure of permanence, unless founded in principle", and states that the rule is not based on reason, and. that "the reader, on a perusal of later cases, will find himself probably impelled to the conclusion where there is a gift of personal estate to a person for life or any unlimited interest, and after the determination of such interest to certain persons naminatim, or to a class of persons as tenants in common, and the survivors of them, these words are construed as intended to carry the subject of gift to the objects who are living at the period of distribution." On star page 15 17 Jarman says, after a review of many cases: "In this state1 of the authorities one need scarcely hesitate to affirm that the rule that reads a gift to survivors simply as applying to objects living at the death erf the testator, is confined to those eases in which there is no other period to which survivemship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who sur- vivo the period of distribution, and of those only." American cases recognize this change. Branson v. Hill, 31 Md. 181; Wren v. Hyn.es, 2 Mete. 121). Several Virginia decisions support Martin v. Kirby. Stone v. Lewis, 84 Va. 474; Gish v. Mooman, 89 Va. 315; Chapman v. Chapman, 90 Va. 409; Crews v. Hatcher, 91 Va. 378. But the latest, Cheatham, v. (tower, 94 Va. 383, does not. In it a will gave "my nephew, T. M. C, during life, my mansion house * * * and at his death to his surviving children." Held, that the remainder after the life estate1 passed to the children of T. M. C. living at his death, whether living at testator's death or not. Likely Jameson, v. Jameson, 80 Va. 51 is against it. More does the rule apply as to personalty, to be realized by a sale of land, as in this case, after the testators death, and then divided. "Here the property to be distributed is not in a condition to be divided as directed by the testator until the death of a life tenant, and hence only those who survive him can take." 1 Underbill on Wills, section 350.

But he. the case of a plain case of survivorship as it may, I think this is a case of substitution, not survivorship. We1 have not the case of a survivor of several persons alike in interest, but a case where some persons are substituted in default or place of others.

Take the will. What was the testator's intent? That at the death of the widow life tenant the property should go to the testator's children, if then living, and if not, then to their children. If he intended to give unconditionally and at once-to his children a vested estate, why not simply give to them? He did not do so. He used more words than those necessary to do this. He says "my children or their children". He meant something by these additional words. What did he mean by these added words "or their child rem"? He did not mean "and" their children. We; cannot change "or" info "and"; for this is only done to execute plain intent; but in this ease that is obviously not the case. We must give "or" its natural, usual gramatieal effect, a disjunctive effect. The testator did not mean to give his executor arbitrary power to choose either his own children, or their children. Tie plainly meant to give to his own children, if living at daie of distribution after death of his widow, and if not, then to their children. Do we risk any thing in saying that such was the purpose? Let us see if authority will not so interpret that little word "or." "The term (substitution) is generally applied to limitation intended to provide for the death of prior devisees or legatees before the period of distribution. Thus, a direct gift to A or his children goes to A, if be survive the testator, and to bis children, if he does not. If the gift be preceded by a life estate, the substitutional gift takes effect whether A dies in the life-time of the testator or the tenant for life." 29 Am. & Eng. Ency. L. (1st ed.) 494. A will gave a wife a life estate, and directed a sale after her death, and gave fixed legacies to two grandchildren, and the balance to go to his six children "or their heirs." It was field that the word "or" interposed between the first legatee and the heirs was a word of substitution, and that the only persons entitled to share were those children living at the distribution and the children of dead ones. The word "or" was held to be equivalent to "in case of the death of." It is stated there that where a legacy is not palpable at once on the death of the...