White v. Kane

• Decision Date: 28 February 1942
• Citation: 159 S.W.2d 92,178 Tenn. 469
• Parties: WHITE et al. v. KANE et al.
• Court: Tennessee Supreme Court

159 S.W.2d 92

178 Tenn. 469

WHITE et al. v. KANE et al.

Supreme Court of Tennessee.

February 28, 1942

Appeal from Chancery Court, Davidson County; Wm. J. Wade Chancellor.

Suit between Mary Thomas K. White and others and Helen Kane and others for a declaration with respect to the rights of complainants under the lapsed legacy statute, Code 1932, § 8134, in land devised to their mother, who predeceased testatrix. From a judgment holding that the devise passed per stirpes to the issue of deceased devisee, an appeal is taken.

Affirmed.

W. E Norvell, Jr., Bass, Berry & Sims, and F. M. Bass, Gdn. ad litem, all of Nashville, for appellants.

W. P Cooper, of Nashville, for appellees.

CHAMBLISS Justice.

Complainants are four children of Mrs. Annie F. Kane, deceased, and the defendants are her grandchildren, and certain parties interested as proposed purchasers in a declaration decreeing the right of complainants to sell and convey the land involved.

In December, 1932, Mrs. Anna Clare Kane Thompson, owner of the land described herein, the title to which is involved, executed her will devising to her mother, Annie F. Kane, a one-half undivided interest therein. The mother-devisee died prior to the testatrix. Complainants are the three brothers and one sister of the testatrix who claim the land devised by the will of their sister by virtue of and pursuant to the provisions of Code, Section 8134, which is as follows:

"Whenever a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survives the testator, said issue shall take the estate devised or bequeathed, as the devisee or legatee would have done, had he survived the testator, unless a different disposition thereof is made or required by the will."

The bill shows that complainants have contracted to sell and convey their interest in the land described, and their right to convey being questioned, they seek a declaration of their rights in the premises.

We have italicized what appears to be language in the Code Section quoted particularly bearing on the question presented. The devisee, Mrs. Kane, had she not died before the testatrix, would have taken in a representative capacity, as a purchaser would take, with absolute power of disposition. Her children would have taken no interest.

Now the statute provides that the devisee having died before the testatrix, the issue of the devisee shall take as the devisee herself would have taken, that is, in a like representative capacity. Who constitute the "issue" of the devisee in the sense of the term as employed in this statute?

The learned Chancellor held that "issue" as here used is to be construed in the sense of descending heirs, as meaning that the children alive at the time of distribution are to take equally, to the exclusion of remote descendants, unless the latter are issue of a deceased child, in which case they would take this child's share as representing their parents. In other words, the distribution is per stirpes, rather than per capita. The opinion of the Chancellor so well reasons the matter, that we adopt it, as follows:

"As will be seen from the above stated facts, the mother of the testatrix was a devisee under her daughter's will, and having pre-deceased her daughter, her interest in the daughter's estate passed under the lapsed legacy statute which was carried into the 1932 Code as Section 8134.

"The only question before the Court is the construction of the word 'issue' as contained in said Section 8134 of the Code, which was enacted in 1851, and reads as follows:

"'8134 ***. Devise or legacy not to lapse--Whenever a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survives the testator, said issue shall take the estate devised or bequeathed, as the devisee or legatee would have done, had he survived the testator, unless a different disposition thereof is made or required by the will.'

"The word 'issue' used in the statute in its literal meaning, includes all persons who have descended from a common ancestor, and would, therefore, imply a per capita distribution, but the courts have very widely and generally expressed a strong inclination to construe the word wherever possible, as intending a per stirpes and not a per capita devolution.

"Among the Tennessee cases are: Farley v. Farley, 121 Tenn. 324-327 ; Lee v. Villines, 129 Tenn. 625 ; Stewart v. Drake, 1 Higgins 332, 337 [1 Tenn.Civ.App. 332]; and Lea v. Lea, 145 Tenn. 693, 701 [703, 237 S.W. 59, 62].

"Thus, in the Lea case the Court recognized and commented on the liberal meaning of the word 'issue,' but went on to quote a New York case [ Matter of Farmers' Loan & Trust Co., 213 N.Y. 168, 107 N.E. 340, 2 A.L.R. 910] declaring that this presumed meaning 'yields to "a very faint glimpse of a different intention"'. And our Supreme Court added, ([145 Tenn. at] page 703 ):

"'This "faint glimpse" or "slight indication" doctrine is accepted by most of the courts, and while it is the exception to the rule *** the exception to the rule seems to have a more general application than the rule.'

"So, also, our Court in Ridley v. McPherson, 100 Tenn. 402, 405 , says that Mr. Redfield in his work on Wills, Vol. II, page 363, expresses the opinion--'that not one grantor in a thousand would suppose that by using such a word he would be dividing up his estate among all his descendants who might be living at the time of distribution, in such manner as to permit two or three generations--parents and their children and grandchildren--to share concurrently and per capita, equally, as between themselves.'

"As said in the Lea case, the courts generally seek for any indication, however slight, to support a per stirpes interpretation of the word 'issue'--on the ground that this interpretation would not only be in conformity with the long established statutory rules of descent and distribution, but with the presumed intention of the grantor or testator.

"But that is where the word 'issue' is used in deeds or wills, while here, we are dealing with the word in a statute, and accordingly, we are here to seek the legislative intent. Trotter v. State, 158 Tenn. 264 ; Sparkman-Thompson, Inc., v. Chandler, 162 Tenn. 614 .

"And there is a fundamental rule that a statute is to be construed, or

...