Hoppock v. Tucker — 8 N.Y. Sup. Ct. 132

Majority

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RACHEL HOPPOCK and others, Appellants, v. JOHN C. TUCKER and others, Respondents.

Headnote

Will—intention — words must give way to—legatees taking as a class or as individuals.

Where the general scheme of a will shows that the testator intended to treat certain legatees as a class, the fact that the several legatees are specifically named in the bequest, and that the gift is to them “ in equal proportions, share and, sha/re alike,’’ will not have the effect of preventing the intention, to treat them as a class, from prevailing.

Appeal from a decree of the surrogate of Hew York, made September 9, 1873, in the matter of the final accounting of the executors of the last will and testament of Jacob Hoppock, deceased.

The testator, after making certain specific bequests, in the seventh clause of his will, directs his executors to divide the residue of his estate (including all legacies which for any reason should fail to take effect, and also a sum set aside as a provision for his widow, in lieu of dower, in case she did not accept it, and if she accepted it, then that sum on her death) into six equal shares. The eighth, ninth, tenth and eleventh clauses of the will are as follows:

“ 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 Moses Allen Hoppock. Hinth, 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

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shares I do give, devise and bequeath unto my daughter Caroline Virginia, wife of Dudley M. 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.”

By the twelfth, thirteenth and fourteenth clauses of said will the remaining two-sixths are given: of one-sixth, two-thirds to his son William Henry Hoppock, and the remaining one-third in trust for the life of Lavinia, wife of Wm. H. Hoppock. The last remaining sixth to his executors, in trust for his daughter Josephine E. Demarcy. In the seventeenth clause he directs: ccIn 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,” etc.

William Edgar Tucker died before the testator.

The surrogate, by his decree, awarded the share of William Edgar Tucker to John Campion Tucker, Jr., and Hubert V. W. Tucker, holding that the intention of the testator was that the three last-mentioned persons should take as a class, and that the death of either before the testator would work, in law, a survivorship in favor of the others of that class.

Joseph A. Welch, for the appellant.

The general rule is that property given by a will to a plurality of persons as tenants in common, if one died in lifetime of testator, his share becomes intestate estate. (1 Jarman on Wills, 295 ; Roper on Legacies.) The words “ in equal proportions” or “share cmd share alike,” create a severance of the interests. (2 Jarman on Wills, 162; 2 Kent Comm., 351; Westcott v. Cady, 5 Johns. Ch., 334 ; Right v. Compton, 9 East, 276; Lashbrook v. Cock, 2 Mer., 70 ; Perkins v. Baynton, 1 Bro. C. C., 118; Campbell v. Campbell, 4 id., 15; Bunch v. Hurst, 3 Desaus., 228 .) Legatees are to be treated as a

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class, only when the individuals intended are to he ascertained by contingent events. (1 Jarman on Wills, 295-6.) The designation of the individuals makes them individual legatees. (Downing v. Marshall, 23 N. Y., 373 -4.)

John E; Parsons, for the respondent.

The intention of the testator must govern. (Barber v. Barber, 3 Myl. & C., 688-697.) The rule, that designation by name makes bequests to individuals and not to a class, not denied, unless a contrary intention appears in the will. (Bain v. Lescher, 11 Sim., 397; Knight v. Gould, 2 Myl. & C., 295.) The whole will must be considered. (Williams on Exrs., 971; Finlay v. King's Lessee, 3 Pet., 346 ; Smith v. Bell, 6 Pet., 68 .) The words “m equal proportions, share and share alike," are not important. The Tuckers take as tenants in common. There is no survivorship, unless they take as a class; if they take as a class, it does not matter whether they take by language which makes them tenants in common or joint tenants. (Dooming v. Marshall, 23 N. Y., 366 , 373, 374.)

The testator, after first making provision for the payment of his debts and funeral and testamentary charges and expenses, and for his widow during her life, and after making certain specific bequests, proceeds to divide the residue of his estate, real and personal, into six equal shares or parts. His language indicates in strong and clear terms his intention that this equal division shall apply to and embrace every remaining portion of his property, including not only the provision for his widow if she does not accept the same in lieu of dower, and the remainder thereof after her decease if she shall accept, but also “ all legacies which for any reason shall fail to take effect.” There can be no doubt, therefore, but that the division to be made into six equal shares is to embrace the whole residue, for the purpose of carrying out the scheme of disposition contained in the next following provisions of the will. Nor can there be any doubt that the number of his children dictated and controlled the number of shares. The testator had had six children (one of whom was deceased), amongst whom or their families he set about making a distribution of the

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six parts into which he had directed his estate to be divided. To each of his living children he gives directly, or in trust for his or her benefit, one of such equal sixth parts, carefully making provision for the issue of such child in case of his or her death before the death of the testator. His deceased child was “Ann Maria, late wife of John C. Tucker,” who had left her surviving three children, John Campion Tucker, Hubert Y. W. Tucker and William Edgar Tucker, all of whom were living at the time of the making of the will. Out of the sixth part (which may be said to represent Ann Maria’s share) the testator gives $10,000 to his grandson, Edward A. Hoppock, and the remainder of such sixth part he gives, devises and bequeaths, “ in equal proportions, share and share alike, unto John Campion Tucker, Hubert Y. W. Tucker and William Edgar Tucker, the children of my deceased daughter, Ann Maria, late wife of John C. Tucker.”

William E.. Tucker having died before the testator, unmarried, leaving no descendants, and leaving him surviving his two brothers, the only surviving children of said Ann Maria, the question is whether the share that would have come to William, had he outlived the testator, has lapsed or has survived to his brothers as representing a class, to wit, the children of Ann Maria.

The seventh clause of the will sheds a strong light upon the intention of the testator, both as respects his design to make the division include the whole residue of his property, and to divide it so that his six children should stand upon what he deemed to be an equal and impartial footing. It must be seen, I think, from that provision of the will, that the testator intended that each child, or the family of each child, should take the share given to him or them in such manner that it should pertain to his or her children as a class, and not as separate individual legatees.

The testator says : “ 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 ! 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

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and specified in the final settlement of my estate.” The testator then proceeds to make like charges against the shares of his other children, so as to accomplish his manifest purpose of giving to each child, whether living or dead, when the will takes effect, what he intends shall be a fair and impartial portion. It is manifest that, in his mind, it was Ann Maria’s share that he was giving to his children, just as it was intended to be Caroline Virginia’s share that, under the sixteenth clause, should go to her children in equal shares, provided she should chance to die before the testator. And so in respect to each of the other children.

It cannot- be questioned that, in giving to Ann Maria’s children so much of the one sixth, parceled out to represent her share, apt words are used, unless their significancy is to be controlled by a manifest intention to the contrary, to constitute the several persons named individual legatees or 'persones, designad®,.

The several children of Ann Maria are named, and the gift is to them “in equal proportions, share and share alike;” and ordinarily, under numerous authorities, those words would be construed to be a gift to each grandchild of a separate and individual interest as tenant in common.

This is the doctrine of the elementary books and of authorities too numerous to be cited. But it is another question whether, where the scheme of the will, in all its various provisions taken together, shows that the grandchildren were not named with such an intention, the accident of naming them must have the effect to prevent the intention, to treat them as a class, from prevailing. If, for instance, the testator had followed the eleventh clause, in which the children of Ann Maria are severally named, by the words “ they take as a class representing their mother,” there could be no doubt that the intention thus expressed would control the ordinary or technical force of any preceding nomination of persons. What the testator has done, seems to me to be as potent a declaration of his intention, though not as clear, as the one supposed.

There is no special force in the words “in equal proportions, share and share alike,” taken by themselves, because if the three sons of Ann Maria had not been named, those words would have had no effect beyond fixing the proportions of the children as a class. They are entitled to no other effect now, for whether the

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Tuckers take as a class or take as individual legatees, those words have their full force as standards of measurement, which is all they were intended for.

The several names of the children of Ann Maria are followed by words of classification, “ the children of my deceased daughter, Ann Maria.” They were all of her children. It was her share that the testator was disposing of after dividing his whole residuary estate into six equal shares, representing the number of all his children, and counting the deceased daughter, Ann Maria, as standing for one of the shares; and in consummating his purpose of a fair and impartial division “ amongst my [her] children,” he specifies the amount that has been received by Ann Maria in her lifetime, which shall be charged “ against the share of her ehilclrenP He nowhere treats that share any otherwise than as he treats the shares of other children, except as he diminishes it by the legacy. It would defeat, as it seems to me, the intention of the testator if the rule of construction claimed by the appellants were applied. The object of all rules of construction is to reach with certainty and precision the intent of the testator. In the absence of countervailing intent, manifest in the will itself, the general rules of the decided cases are to be followed and applied as the best means of determining intent; but where the intent is manifest the legal effect of words must give way before it.

We think the conclusion of the surrogate was right, and that the decree should be affirmed.

Daniels and Lawrence, JJ., concurred.

Decree affirmed.