CHAPTER XVIII

LIMITATIONS TO CLASSES

VINER v. FRANCIS.

(Court of Chancery, 1789. 2 Cox, 190.)

John Wiggington by will gave to his brother Samuel Wiggington £6000 in trust for the use and benefit of his children, to be equally divided between them, either in his lifetime or at his death, when, and in such manner as he should judge most convenient and beneficial to them. He gave to his sister Martha Selby £3000, the interest of which he gave to her for her own use during her life; and at her death he desired the principal might devolve to her son Miles Selby, unless she should have more children, and then the same sum to be shared equally between them. He then added, "Item, I give unto the children of my late sister Mary Crowser, the sum of £2000 to be equally divided. among them. Note, to the above three legacies I desire £100 may be paid to each within one month after my decease, to buy mourning, &c." And after giving several other legacies, he gave the residue, after payment of debts and legacies, thus: "I give unto my brother Samuel Wiggington one third of the residue, and one third more to my sister Martha Selby, and the other third I give to the children of my late sister Mary Crowser, equally to be divided between the children of my brother Samuel Wiggington, my sister Martha Selby, and the children of my late sister Mary Crowser."

At the date of the will there were three children of Mary Crowser living, viz., John, Elizabeth, and William. William died after the date of the will, in the lifetime of the testator; and it was contended that one-third of one-third of the £2000 given to the children of Mary Crowser lapsed into residue, and that one-third of the residue lapsed, and was payable to the next of kin, as undisposed of.

MASTER of the Rolls [Sir RICHARD PEPPER ARDEN]. There is no doubt in this case on the bequest to the children of Samuel Wiggington, for all his children were living at the death of the testator. It was once indeed thought that a bequest to "the children of A.” might extend to all children born at any future time; but Devisme v. Mello, 1 Brown Cha. Rep. 537, has settled that such children shall take, as are born at the time the distribution of the fund is to take place. The doubt in this case arises on the clause which gives "to the children of my late sister Mary Crowser" the sum of £2000 to be equally divided. As I said before, the general rule as settled by Devisme v. Mello is, that the children living at the time of the distribution of the

fund, shall take; if it is to be distributed at the time of the testator's death, then such children as shall be then living; if distributable at the death of some other person, then the testator is to be supposed to mean such children as shall be living at the time of the death of such other person. Then the question is, whether a gift to the children of his late sister Mary Crowser is or is not indicative of an intention different from that which would be imputed to him under the general rule, that is, whether he meant the particular children living at the time he made his will, to take the fund equally between them, or whether it was not the same thing as if he had given the £2000 "to the three children of my late sister;" for in that case it would have been a legacy to three personæ designatæ. Now when a testator gives a fund to be divided amongst his own children, he shall be supposed to mean such children as shall be living at the time of his death. If so, why should I suppose that the sister being dead, he meant anything else than what would be imputed to him in the other case? This is not like the case of Lord Bindon v. Earl of Suffolk, 1 P. W. 96, for there the gift is to the five grandchildren, which shows that he had particular objects in view. But the general rule, I take it, comes to this, to exclude all children, who, although living at the date of the will, yet die before the testator, and to include all those who are living at the time of the distribution, although born after the will or the death of the testator.1

SPRINGER v. CONGLETON.

(Supreme Court of Georgia, 1860. 30 Ga. 976.)

The defendant in error, Burton A. Congleton, filed this bill to recover of the executor of Jesse Cherry, deceased, part of a residuary legacy claimed to be due John Choice, one of the legatees under the will of deceased, and which the said Choice had assigned to the said Burton A. Congleton for value.

It appears by the bill, that there were six legatees named in said will; among them the said John Choice and Naomi Lilly; but it is alleged that there were really only five legatees entitled to take under said will the said Naomi Lilly having died without issue before the death of, and unknown to the testator. It is further alleged that there was due said John Choice, who resides in the State of Alabama, on the first day of January, 1853, by said executor, as the one-fifth part of said residuum, the sum of three thousand dollars or other large sum with interest thereon, except two thousand dollars paid him by the executor in 1845, which, however, did not include any part of the share left to Naomi Lilly; that at that time it was not known to either

1 See, also, Dimond v. Bostock, L. R. 10 Ch. App. 358 (gift in trust for all the nephews and nieces of the testatrix's late husband who were living at the time of his decease, except A. and B., as tenants in common).

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said Choice or said Springer, that said Naomi Lilly had not survived said testator.

The bill charges that the executor, in order to defeat the collection of the share which would have gone to the said Naomi Lilly, procured Samuel Crawford, of Marion county, to take out letters of administration on the estate of said Naomi, deceased, and paid over to him as such, the sum of two thousand dollars or other large sum of said estate, and which payment was illegal and void. Prayer for ne exeat, on the ground that said Springer, executor, was threatening and preparing to remove out of the State.

The defendants demurred to the bill on the grounds following: 1st. There is no equity in said bill.

2d. The complainants cannot maintain said bill, because the same is illegal and champertous, as appears from said bill.

3d. Because said complainants are entitled to no share or part of the interest devised to Naomi Lilly under the will of Jesse Cherry, deceased.

The Court overruled the demurrer, and counsel for defendants excepted.

STEPHENS, J. This case turns solely upon the construction of the last clause in the will. Did the testator intend to give the estate to certain persons whom he names, and who happened to be children of his two sisters? or did he intend to give it to a class described as children of his two sisters, including all who fell within the class, and none who did not fall within it, the names of the children being mentioned only as a supposed correct enumeration of the individuals who composed the class? He says, "it shall be divided with my two sisters' children, Elizabeth Joice and Martha Lilly, to wit," naming the children, and Naomi Lilly among them. This is a gift to a class, "sisters' children," and to individuals also, "Naomi," etc., the two ideas. being supposed by the testator to be so perfectly coincident and harmonious, that the one is really used as a description of the other. But we think the class was the leading idea. The blood seems to have been the motive, and we think the intention was that the gift should go to all who were children of those two sisters, and to none who were not children, that is to say, to all who answered the description, and to none who did not answer it, at the death of the testator, that being the time at which the will speaks. The blood of those two sisters being the motive of the gift, it is fair inference that the description by enumeration of individuals, was subordinate to the general description which is necessarily precisely co-extensive with that motive. The motive of the gift throws a strong light upon the extent of it. We naturally expect the gift to go as far as the motive carries it and no further. Naomi was not one of the children of the two sisters, at the death of the testator, though she had before been one of them, and he supposed that she still was. She, therefore, was not within the motive of the gift, and for that reason, we think she was not within the gift.

The other children of the two sisters were within the motive and nobody else was, and we think the other children took the whole gift. There were a number of cases cited by the plaintiff in error to the effect that a residuum given to several in joint-tenancy, will go to the survivors when one of them dies before the death of the testator, but when given in tenancy, in common, (as this is) it does not go to the survivors, but the portion of the deceased tenant in common lapses, and creates an intestacy quoad hoc. That doctrine is not applicable to this case. In all those cases, the question was as to the effect of the death of a person who, as an individual, was known to have been certainly intended as a legatee; but here the very question is what individuals were intended? Were the intended legatees the very persons named and no others, or were they the persons included in a described class? Contrary to the testator's expectation, there turns out to be a conflict between his two descriptions of the legatees, and the real question is, which description must yield to the other? A different state of surrounding circumstances might throw a different light on the words used in this will; but under the few facts which appear in this case, we think that the objects of the testator's bounty were only those who, at his death, were children of his two sisters. Judgment affirmed.2

2 See to the same effect the following cases: Warner's Appeal, 39 Conn. 253 (devise "to the sons of my two sisters deceased, H. & C."-H. and C. being the names of the two sons); Swallow v. Swallow, 166 Mass. 241, 44 N. E. 132 (bequest "to the heirs of I., my late husband, namely, M., S. and D."); Schaffer v. Kettell, 14 Allen (Mass.) 528; Hoppock v. Tucker, 59 N. Y. 202 (bequest "in equal proportions, share and share alike," to J. H. and W., children of his deceased daughter, A. M.; but other parts of the will furnished a special context and scheme which led to the conclusion that this was a gift to a class); Page v. Gilbert, 32 Hun (N. Y.) 301 (to my wards Carrie E. and Harry A. Gilbert, now living with me, children of Eliza H. Gilbert, late of Delavan, Wisconsin, deceased"); Bolles v. Smith, 39 Conn. 217 (to A., B., and C., sons of my deceased brother R., equally, they paying all the other legacies"); Chase v. Peckham, 17 R. I. 385, 22 Atl. 285 (to my nephews T., J., H., H., B., and H., all the rest of my estate, share and share alike, they paying out of the same all my just debts, funeral charges, and the expenses of settling my estate"); Roosevelt v. Porter, 36 Misc. Rep. 441, 73 N. Y. Supp. 800 (to my nephews and nieces [naming them], to be equally divided between them, share and share alike, except that no part of my estate shall go to Cornelius Roosevelt or his issue, and I do hereby exclude him and his issue from having or receiving any share of my estate); People v. Byrd, 253 Ill. 223, 97 N. E. 293, but cf. McClure's Appeal, 72 Pa. 414, 421.

In the following cases, where named individuals, who in fact belonged to a class, were included with other persons described as a class, the gift was to all as a class: In re Jackson, Shiers v. Ashworth, L. R. 25 Ch. Div. 162; Theobald on Wills (7th Ed.) 788.

But where the named individuals were not within the description of those designated as a class, and the gift was to them and to others as a class, the gift was not to all as a class, and upon the death of the one named before the death of the testator the legacy lapsed. In re Allen, Wilson v. Atter, 44 L. T. 240; Theobald on Wills (7th Ed.) 788. But see Porter v. Fox, 6 Sim. 485, post, p. 1031; Talcott v. Talcott, 39 Conn. 186; Pardue v. Givens, 54 N. C. 306; Elphinstone on Deeds, 357.

WELD v. BRADBURY.

(Court of Chancery, 1715. 2 Vern. 705.)

Wickstead Weld, the plaintiff's father, devised his stock without doors to be sold by his executors, and after debts and legacies paid, the surplus arising by sale to be put out at interest; and one moiety to be paid to the younger children of the plaintiff, living at his death, and the other moiety to the children of J. S. and J. N.

Neither J. S. nor J. N. had any child living at the making of the will, or at the death of the testator.

PER CUR. [LORD Cowper, L. C.]. It must be intended an executory devise, and to be to such children, as they, or either of them should at any time after have, and the children to take per capita, and not per stirpes, they claiming in their own right, and not as representing their parents.3

HILL v. CHAPMAN.

(Court of Chancery, 1791. 3 Brown, Ch. Cas. 391.)

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The testator, John Spackman, made his will, dated 15th January, 1785, and thereby gave the residue to his trustees, the defendants, in "trust for the benefit of all his grandchildren, by his daughter Sarah, equally to be divided between them, and laid out for their respective benefit" ["as aforesaid."] The testator made two codicils to his will, and by the latter, dated 19th November, 1785, he gave annuities to his servants to the amount of £30 a year, and directed £1000 Three per cent Bank Annuities to be set apart to pay these annuities.

The plaintiffs were the children of the testator's daughter, Sarah Hill, born before the death of the testator.

The defendants were the trustees, and a child born after the death of the testator (but during the life of the annuitants), who was brought before the court, by a supplemental bill.

And the question was, whether the after-born child should take a share of this £1000.

LORD CHANCELLOR [THURLOW]. Where a supplemental bill brings a new person or a new interest before the court, it is open to the parties to make any objection to the decree that might have been made at the first hearing.

It is intelligible, that by "the children of A." the testator means children then born; if you go further, it must extend to all possible chil

Same as to realty, Shepherd v. Ingram, ante, page 230.

4 After having given distinct legacies to the children of his daughter, Sarah Hill, nominatim, directing the mode of investment, and the time when each legatee should have the possession; see the report in 1 Ves. Jun, 405, and the MS. reports of the judgment.-Belt's Note.