Majority
p. 202Rachael Hoppock et al., Appellants, v. John C. Tucker, Jr., et al., Executors, etc., et al., Respondents. (Argued November 11, 1874; decided December 15, 1874.)
Headnote
An intent, inferable from the language of a particular clause of a will, may be qualified or changed by other portions of the will evincing a different ... ’ intent.The will of H. divided his residuary estate into six parts corresponding to the number of his children, giving substantially one part to each or to their children. One part (after deducting a specific legacy) he bequeathed “in equal proportions, share and share alike,” to J. H. and W.,children of his deceased daughter, A. M. Held, that while the clause, taken alone, would be construed as a bequest to the persons named, as individuals, yet, as it appeared from the general scheme of the will and various provisions therein that the intent was that the issue of all his children, where they took under the will, should take by representation, the clause should be construed as a bequest to the children of A. M. as a class; and one of them having died without issue, that the other two took the whole.
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Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a decree of the surrogate of New York in the matter of the final accounting of the executors of the last will and testament of Jacob Hoppock, deceased. (Reported below, 1 Hun, 132 ; 3 N. Y. S. C. [T.&C.], 653.)
The appeal relates to the disposition of a bequest in the eleventh clause of the will, to the children of Ann Maria Tucker, who had died previous to the making of the will, leaving the three children named in said clause. One of the said children, William Edgar, died, leaving no descendants, previous to the death of the testator, and the question was, whether the share that would have come to him, had he outlived the testator, lapsed, or survived to his bi’others named as representatives of a class.
The clauses of the will having any reference or bearing upon the questions discussed are as follows :
“ Seventh. I do will, order and direct that my said executors shall and do divide into six equal shares or parts all the rest, residue and remainder of my estate, real and personal, including all my property and effects of every name, nature, character and description not hereinbefore specifically given or bequeathed, of which I shall die seized, possessed or entitled unto at law, or in equity; and in this direction I intend to include all legacies which for any reason shall fail to take effect. And if my said wife, Rachael, shall refuse or neglect to accept the provisions hereinbefore contained in her behalf, in lieu and bar of dower, then and in such event the said sum of $20,000, and the furniture or the proceeds thereof, the use and interest or income of which I have given to my said wife during her life, upon the conditions of her accepting the same in lieu and bar of dower in my real estate, shall also be included and divided with my said residuary estates as of the time of my death. But if my said wife shall accept the aforesaid provisions in manner aforesaid, and thereafter depart this life, then and in such ease, upon and after the death of my said wife, the said sum of $20,000, and the said furniture or
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proceeds thereof shall be deemed part and parcel of my said residuary estates, to be divided as aforesaid in six equal parts or shares, as aforesaid.
“ Eighth. And one of such equal sixth parts or shares of all my said residuary estates and property, I do give, devise and bequeath unto my son Hoses Allen - Hoppock.
“ Ninth. One other of such equal sixth parts or shares I do give, devise and bequeath unto my son Larison Hoppock.
“ Tenth. One other of such equal sixth parts or shares I do give, devise and bequeath unto my daughter Caroline Virginia, wife of Dudley H. Ferguson.
“ Eleventh. Out of one other of such equal sixth parts or shares, I do give and bequeath the sum of $10,000 unto my grandson Edward A. Hoppock, son of my said son Moses Allen Hoppock, and the remainder of the said last mentioned equal sixth part or share of my said residuary estates and property I do give, devise and bequeath in equal proportions, share and share alike, unto John Campion Tucker, Hubert V. W. Tucker and William Edgar Tucker, the children of my. deceased daughter Ann Maria, late wife of John C. Tucker.
“ Twelfth. One other of said equal sixth parts or shares of my said residuary estates and property I do give, devise and bequeath as follows, that is to say: Two equal third parts thereof unto my son William Hendry Hoppock, and the remaining equal third part of the said last mentioned one equal sixth part or share of my said residuary estates and property I do give, devise and bequeath unto my executors hereinafter named, and their survivors and survivor, to have and to hold the same during the life of Lavinia Clarkson, wife of my said son William Hendry Hoppock, upon the trusts and to the intents and purposes following, that is to say: to collect, receive and take the rents, issues, profits, interests and income thereof, and during the life of the said Lavinia Clarkson, to pay and apply the same after deducting the lawful expenses of executing these trusts, including all taxes, assessments and other lawful disbursements and charges properly chargeable thereupon, or in reference thereto, in
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manner following, that is to say : to pay the same to or to the nse of the said Lavinia Clarkson, the wife of the said William Hendry Hoppock, upon her separate receipts from time to time. And upon the death of the said Lavinia Clarkson, leaving issue of my said son William Hendry, unto such issue then living to pay, -assign, transfer and convey the principal or body of the said one-third part of the said last mentioned one equal sixth part of my said residuary estates and property; if more than one, unto them, such issue, in equal shares, but if only one, then the whole to such one; and in default of such issue, then unto my said son William Hendry, if he shall then be living; but if he be then dead, in equal shares unto my other children surviving and the issue then living, of any of my children who may then be dead, such issue, if any, representing and taking amongst them the share the deceased parent would have taken if living.
“ Fourteenth. And the remaining one equal sixth part or share of my said residuary estates and property I do give, devise and bequeath unto my said executors, their survivors and survivor, to have and to hold the same during the life of my said daughter Josephine Elizabeth Demaray, wife of Lyman D. Demaray, but nevertheless upon the trusts and to the intents and purposes following, that is so say: * * * And upon the deatli of my said daughter Josephine Elizabeth, all the said one equal sixth part or share of my said residuary estates and property, or so much thereof as may remain * * * I do give, devise and bequeath unto such lawful issue of my said daughter, if any, as shall then be living, if more than one in equal shares; if but one, to that one. But in default of such issue, then to my other children surviving my said daughter, and the issue then living of any deceased child or children of mine, such issue taking by representation, in equal shares.
“ Sixteenth. In the event of the death of any one or more of my children before my decease leaving lawful issue, who shall be living at the time of my death, it is my will and I do give, devise and bequeath unto such issue of every deceased
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child, the principal of the share of my estate which the deceased parent of such issue would have been entitled to or to enjoy the income of, under the provisions of this my will, had such parent survived me, such issue to take by representation, if more than one in equal shares.
“ Seventeenth. In order that there may be a fair and impartial division of my residuary estates and property aforesaid amongst my children, it is my will and I do order and direct that the following charges be made against the respective shares, that is to say: My deceased daughter Ann Maria having during her lifetime received from me the equivalent of $1,000, that sum with interest thereon from the day of my death shall be charged against the share of her children, hereinbefore mentioned and specified, in the final settlement of my estate. And my daughter Caroline Virginia, wife of Dudley M. Ferguson, having received from me the equivalent of $2,000, that sum with interest from the day of my death, shall be charged against her share, hereinbefore specified and mentioned in the said final settlement of my estate. And I do further will, order and direct that all and every other indebtedness which may be owing to me by any of my children, whether on book account, by note, bond or otherwise, shall be charged against the share or interest in my said estates and property of each and every such child, owing or liable for such debts to the extent thereof, in the final settlement of my said estates.”
Joseph A. Welch for the appellants.
The words, “in equal proportions,” or the words, “ share and share alike,” create a tenancy in common among the three legatees named. (2 Jar. on Wills, 162; Wms. on Exrs., 1463; 2 Kent’s Com., 351; Westcott v. Cady, 5 J. Ch., 334 ; Right v. Compton, 9 East, 276 ; Lashbrook v. Cock, 2 Mer., 70 ; Perkins v. Boynton, 1 Bro. C. C., 118 ; Campbell v. Campbell, 4 id., 15 ; Bunch v. Hurst, 3 Des., 288 .) The designation of the individuals intended as the objects of the gift by their proper names constituted them persones designates. (1 Jar. on Wills, 296;
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Wms. on Exrs., 1216, 1467, 1472; Roper on Legacies, 487 ; Chapeau's Estate, 1 Tucker, 410; Hart v. Marks, 4 Bradf., 161 ; Myers v. Myers, 23 How. Pr., 410 ; Downing v. Marshall, 23 N. Y., 373 , 374; Ashling v. Knowles, 3 Drewry, 593 ; Barber v. Barber, 3 Myl. & Cr., 688; Knight v. Gould, 2 Myl. & K., 295; Gibson's Trust, 2 J. & H., 656, 662; Viner v. Francis, 2 Cox, 190; Ham's Trust, 2 Sim. [N. S.], 106 ; Bain v. Lescher, 11 Sim., 397; Armstrong v. Eldridge, 3 Bro. C. C., 215 ; Denn v. Gaskin, Cowp., 657; Doe v. Sheffield, 13 East, 526, 537; Shaw v. McMahon, 2 C. & L., 528, 532; Leach v. Leach 35 Beav., 185, 186; Mcbane v. Wobank, 2 J. Ch., 293 ; Frazer v. Frazer, 2 Leigh, 642 .) The three legatees were not intended to receive the property as a class. (1 Jar. on Wills, 295, 296; Doe v. Sheffield, 13 East, 336; 3 Drewry, 593.) The clause in the seventh section, taken with the five succeeding sections, constitutes a limitation over of the legacy to W. E. Tucker to the persons and in the manner specified in those sections. (Wms. on Exrs., 1207-1209 [1094]; 1 Roper on Legacies, 484, 489, 492; Van Beuren v. Dash, 30 N. Y., 426 ; Mowatt v. Carow, 7 Paige, 328; Taylor v. Wendell, 4 Bradf., 325 , 331; Martha May's Appeal, 41 Penn. St., 512 ; Sibley v. Cook, 3 Atk., 572; Bridge v. Abbot, 3 Bro. C. C., 224; Palin v. Hills, 1 Myl. & K., 470; Toplis v. Baker, 2 Cox, 121; Le Jeune v. Le Jeune, 2 Keen, 701; Mackinnon v. Peach, id., 555 ; Humberstone v. Staunton, 1 V. & B., 388; Gettings v. McDermott, 2 Myl. & K., 69 ; Cort v. Winder, 1 Coll., 321; Smith v. Smith, 8 Sim., 353; Willing v. Bain, 3 P. Wms., 113; Potter's Trust, L. R. [8 Eq.], 52.) If this share has lapsed it should be distributed as intestate estate. (Gill v. Bronever, 37 N. Y., 549 ; 1 Jar. on Wills, 538 ; Brown v. Bigg, 7 Ves., 279; White v. Howard, 46 N. Y., 162 ; Hatch v. Bassett, 52 id., 359.)
Jno. E. Parsons for the respondents.
The testator’s intent, as indicated by the whole will, is to prevail in construing it. (Wms. on Exrs., 971; Finlay v. King's Lessee, 3 Pet., 346 ;
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Smith v. Bell, 6 id., 68; 4 Kent’s Com., 534; Lasher v. Lasher, 13 Barb., 109 .) The later provisions of an instrument control the earlier. (1 Jar. on Wills, 411; 2 Pars, on Con. [3d ed.], 26, note; Doe v. Biggs, 2 Taunt., 109; Sherratt v. Bentley, 2 Myl. & K., 149 ; Constantine v. Constantine, 6 Ves., 100.) If the Tuckers take as a class, it does not matter whether they take by language which makes them tenants in common or joint tenants. (Downing v. Marshall, 23 N. Y., 366 , 373, 374; 1 Jar., 295, 296; Doe v. Sheffield, 13 East, 526 ; Viner v. Francis, 2 Bro. C. C., 658 ; 3 Hare, 348.)
We have examined the question involved with care, and have arrived at the conclusion, though with some hesitation, that in view of the general scheme and of the various provisions of the will, that the bequest of one-sixth of the residuary estate (less $10,000, bequeathed to Edward A. Hoppock), to the children of the testator’s deceased daughter, Ann Maria, was intended as a bequest to them as a class, and not as individuals, and that the specification of their names must be subordinated to that intent. The clause contains a double description antagonistic in legal meaning. The description by names is a perfect bequest to them as individuals, while the other description as children of the deceased daughter, standing by itself, is a perfect bequest to them as a class. It must be conceded that the clause as it is written, with its double description free from the influence or control of other portions of the will, would, according to the adjudicated cases, be construed as a personal legacy to each child. (Ashling v. Knowles, 3 Drewry, 593; Vinn v. Francis, 2 Cox, 190; Denn v. Gaskin, Cowp., 657; Bain v. Lescher, 11 Sim., 397.)
The law infers this intent from the specification of names, and regards the descriptive portion of the clause as intended for identification. But there is no rule of law that gives to the terms an inflexible intent. (Knight v. Gould, 2 Myl. & K., 295.) An intent inferable from the language of a particular clause may be qualified or changed by other portions of the
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will, evincing a different intent. The substance and intent rather than words are to control. (L. R. [8 Eq. Cas.], 52-58.) The intention of the testator is the first and great object of inquiry, and to this object technical rules to a certain extent are made subservient. (4 Kent’s Com., 534; Smith v. Bell, 6 Pet., 68 .) Til is presents a ease for the application of these general and familiar rules. The language used is in a certain sense equivocal. Standing alone the law would give it a certain meaning, but it would do so only in obedience to a supposed intent. If by the light reflected from other provisions a different intent is discoverable, the reason of the rule fails and a different result is reached. The provisions which seem to us to favor the intention to treat the children of his deceased daughter, Ann Maria, as a class are : 1st. The division of his residuary estate into six parts corresponding to the number of his children, and giving to each or the children of each (substantially) one part. 2d. The language of the seventeenth clause of the will in which the testator provides for deducting advances made to each child from the share of each, and declares that “ my deceased daughter, Ann Maria, having during her lifetime received from me the equivalent of $1,000, that sum, with interest thereon from the day of my death, shall be charged against tile share of her children hereinafter mentioned and specified,” and this is declared to be for the purpose of making a fair and impartial division of his residuary estate. This clause shows not conclusively but persuasively, that the testator regarded the children of his daughter as such as taking a share by the previous elapse. He speaks of the share of the children by his daughter, and directs the advance of $1,000 to their mother to be deducted from their share. They are treated as representatives of their mother both in language and in the direction. The advance was to be deducted from their shares. This direction could not be strictly followed if the interest of the deceased child was a personal legacy which, upon his death, either lapsed or fell into the residuary estate under the clause providing, for legacies which “ for any reason shall fail to take effect.”
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The “share” from, which the deduction was to be made would be divided into three parts, the surviving children each having one, and the other passing under the residuary clause or distributed as in case of intestacy, and the advance would have to be divided and deducted from each portion. Although such an adjustment might be made if necessary to carry out the clear intent, yet it is significant as showing that the testator regarded the share of the children as an undivided portion of his estate from which the advance was to be made as a whole. If this was intended as a personal legacy to each child, this clause as we must suppose from the careful details of the will, would have provided for a proper adjustment of the advance between these children, and, instead of the statement that the share was bequeathed to them as children, we should expect a reference to the bequest to eaeli child. 3d. The provision in the fourteenth clause bequeal hing one of the six shares of his residuary estate, in the event of the death of his daughter Mrs. Demaray without issue, to his surviving children, and the living issue of any deceased child or children, embraces the children of Mrs. Tucker, and provides expressly that they shall take by representation, and there is a similar provision as to another share in the twelfth clause. The rule of taking by representation is also prescribed for the issue of his living children by the sixteenth clause. The counsel for the appellant argues from these provisions that having specifically prescribed the rule of representation in them, and omitted it in the eleventh clause containing the bequest to the children of Mrs. Tucker, it is to be presumed that the testator intended to make a distinction. I cannot concur with this view. We cannot suppose that the testator intended that these children should take a comparatively small legacy as a class, while the principal legacy was given to them as individuals. If any reason can be imagined for a distinction between these children and the issue of his other children no possible reason can be supposed for prescribing a a different rule for these children in taking different legacies. These provisions and the general scheme of the will, that the
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issue of all his children should take by representation, satisfies me, not that the omission to prescribe the rule in the eleventh clause was intended to make the bequest personal, but that the language employed was not designed to have that efi'ect, and that the description of the persons as the children of his deceased daughter was intended to be controlling. This construction makes the will harmonious in all its provisions and accords with the general scheme to apply the same rule to the issue of all his children. The distinction between language constituting a class and persones designates, is somewhat artificial and not very familiar, and was doubtless overlooked. The testator intended to dispose of his entire estate. This is apparent from the provision that in case the widow refuses to accept the bequest to her in lieu of dower, it is to go into the residuary estate, and from a similar provision as to all legacies which fail to take effect. It is quite clear therefore that the legacy to the deceased child of Mrs. Tucker could not be disposed of as in case of intestacy, against the expressed intent to dispose of all the property; and the clause referred to, making provision for legacies which failed to take effect, may be referred to specific legacies. If this is so it would strongly corroborate the construction that the bequest in question was intended to be made to these children as a class, but it is unnecessary to pass upon this question. We think the other provisions of the will are sufficient to indicate the same intent on the part of the testator. We concur with the views of Davis, J., in the court below. ■
The judgment must be affirmed.
All concur.
Judgment affirmed.