Stout v. Cook
Decision Date | 11 February 1910 |
Citation | 75 A. 583,77 N.J.E. 153 |
Parties | STOUT v. COOK et al. |
Court | New Jersey Court of Chancery |
Action by Gideon L. Stout, executor, against Margaret S. Cook and others for the construction of a will. Decree rendered.
Edward M. Colie, for complainant. John R. Hardin (Joseph D. Lee, on the brief), for defendants Margaret S. Cook and others. William J. Magie, for defendants Thomas H. Stout and others. Mark A. Sullivan (Robert H. Griffin, on the brief), for defendant Audrey Osborn.
The bill in this case is filed to obtain a construction of the will of John W. Stout, who died in 1861. He left a widow and seven children, among whom was his daughter Augusta, who married one Appleton, and who died in December, 1907, without issue. At the time of her death the children of the testator who were living were Gideon L. Stout, one of the complainants, and Thomas Stout, a defendant. The four other children were dead, one of them, Jacob, having died without ever having had issue, but leaving the defendant Audrey Osborn, whom he had adopted as his daughter in accordance with the laws of the state of New York in 1900. Amelia, Margaret, and Abby, three of the children, died, leaving issue, all of whom are made parties defendant to this suit. The litigation arises over the disposition of the share of the testator's estate, the life estate in which had been enjoyed by Mrs. Appleton. On her death without issue three sets of claimants to the fund have arisen: (1) Her two brothers who actually survived her; (2) the issue of her three sisters who predeceased her; and (3) Audrey Osborn, who claims to take as the adopted daughter of Jacob Stout, one of the testator's children.
The paragraph of the will which causes the dispute is as follows:
It will be observed that the general scheme of the will was to provide for the descendants of the testator, not equally as amongst the children who survived him, but equally among the stirpes or stocks of his issue. As to his sons he provided for an immediate vesting of their shares and for immediate possession thereof. As to the daughters there was a settlement of an equal share upon them during the terms of their respective lives, with remainder to their issue and a devise over in default of issue. The devise over is to those persons whom the testator bad in mind when he used the term "surviving children" and eventually the issue of such surviving children per stirpes. The problem is to determine who were meant by the testator when he used the term "surviving children." An examination of the decided cases shows that the phrase or its equivalent has been very often used in wills, and has been very often the subject of litigation. One of the English judges remarked that the cases on the subject were so numerous and so conflicting that he did not think the wit of man could reconcile them. This is owing to the fact that it is difficult to frame a general rule according to which all cases involving the construction of particular words and phrases may be decided. There is sufficient variation in the wording of wills to account for the different manner in which the words which are in dispute in this case have been construed. Lord Halsbury said in Inderwick v. Tatchell, [1903] A. C. 120, 72 L. J. Ch. 393: I may say in passing that this idea was given expression to in a case in which the facts were quite similar to those in the case in hand; the prime difference being that the devise over was to "their then surviving brothers and sisters." Notwithstanding the fact that each will in the matter of construction must stand upon its own footing, many attempts have been made by the courts and text-writers to formulate a rule which should have a more or less general application touching the construction of the words in question. It must be admitted that generally these words must be given their common ordinary meaning, unless there is something in the text which requires that a different meaning should be given to them. This is so held in Holcomb v. Lake, 24 N.J.Law, 686, and in other cases cited in the briefs before me, and also so held very strongly in the several opinions delivered in the case of Inderwick v. Tatchell, above cited. I think it is equally clear that the words in question refer to such persons as shall answer the description at the time of the distribution of the fund, and not at the death of the testator. Ashhurst v. Potter, 53 N.J.Eq. 608, 32 Atl. 698; Slack v. Bird, 23 N.J.Eq. 238; Dutton v. Pugh, 45 N.J.Eq. 426, 18 Atl. 207, affirmed sub nom. Jones v. Jones, 46 N.J.Eq. 554, 21 Atl. 950. The New York and Massachusetts cases are not a safe guide on this point. They seem to favor another view. See, also, Cripps v. Wolcott, 4 Mad. 11, and In re Duke, 16 C. D. 112.
We are therefore to inquire who were the persons who answer the description of surviving children at the date of the death of Mrs. Appleton. Mr. Jarman (3 Jarman on Wills, 547) states a rule of construction which Mrs. Cook and those belonging to her class urge should be applied to this case. It is expressed in these words: —citing for his authority Doe v. Wainewright, 5 T. R. 427, Cole v. Sewell. 4 D. & W. I., 2 H. L. O. 186, ana Wilmot v. Wilmot, 8 Ves. 10. A much better expressed statement is found in 2 Williams on Executors, § 1332. The writer says: Watson in his Compendum of Equity (volume 2, p. 1222) extracts tills from the cases: "When following the limitation or gift to the survivor or survivors, and if any should die without issue or...
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...the adopted child from taking property bequeathed or devised to the issue of the adopting parent. 9. The decisions in Stout v. Cook, 77 N.J. Eq. 153, 75 A. 583; Id., 79 N.J.Eq. 573, 81 A. 821; Id, 79 N.J.Eq. 640, 81 A. 824; In re Book's Will, 89 N.J.Eq. 509, 105 A. 878; Id, 90 N.J.Eq. 549, ......
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...or issue of the testator. Jenkins v. Jenkins, supra; Wallace v. Noland, 246 Ill. 535, 92 N.E. 956, 138 Am.St. Rep. 247; Stout v. Cook, 77 N.J.Eq. 153, 75 A. 583. These cases apply the rule that a will takes its meaning from the statute in force at the time it was drawn, where it appears tha......
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Holden v. First Nat. Bank & Trust Co. of Minneapolis (In re Holden's Trust), 32132.
...of the testator. Jenkins v. Jenkins, supra; Wallace v. Noland, 246 Ill. 535, 92 N.E. 956,138 Am.St.Rep. 247;Stout v. Cook, 77 N.J.Eq. 153, 75 A. 583. These cases apply the rule that a will takes its meaning from the statute in force at the time it was drawn, where it appears that the testat......
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