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daughters whose stirpes were surviving. It will be observed on reading the case that the lord chancellor laid stress upon the devise over in case of the death of a daughter without issue, and that he favored the view that the words in question referred to a survival of the stirpes or stocks rather than to a survival of the individuals. The devise over indicated to his mind that the testator did not intend to die intestate as to any of the shares. This opinion is commented on by Cotton, L. J., in Benn v. Benn, 29 C. D. 839, in which he says that Lord Selborne relied upon the gife over as the main reason for his judgment in that case.
In re Palmer settlements, L. R. 19 Eq. 320; 44 L. J. Ch. 247 (1875), there was a settlement executed by two sisters by which the income of a trust fund was made payable to them equally during their joint lives, and after the death of one of them to the survivor for her life, and if either of them should die leaving children to pay one-half to such children, and if either should die without leaving children to pay that half to the children of the survivor, but if both sisters should die without issue then there was a gift over. The one first dying left children; the survivor of the two left none. It was held that the moiety which represented the share of the survivor passed to the children of the one first dying. The opinion was by Malins, V. C., who held that in this case the word “survivor” meant and could mean nothing but "other.” In Wake v. Varah (1836), 2 C. D. 348; 45 L. J. Ch. 533, the testator gave the residue of his estate to trustees in trust to pay and divide the income equally among his three children during their respective lives, and after the death of each child the share of the fund to the income of which the deceased child was entitled for life was to be in trust for his o: her issue, but
"in case and so often as, any of my said three children shall die without leaving issue, the said trustees or trustee for the time being shall stand seized and possessed of the share to which such child for the time being dying without leaving issue as aforesaid shall become entitled during his or her life, as well originally under the trusts aforesaid as by survivorship or accruer under this present clause, in trust for the survivors or survivor of my said children during their, his or her respective life or lives, and in equal shares if more than one ;"
with a gift over in case all his children should die without leaving issue.
The court of appeals (Baggalley, James and Cleasby) held to the opinion of Lord Selborne in Waite v. Littlewood, su pra, and Doe v. Waine wright, supra, and adjudged that the issue of the second child, although she was not the survivor, became entitled on the death of the third to the whole of the fund. ViceChancellor Hall, from whose judgment the appeal was taken, and whose opinion was affirmed, seems to have relied largely upon the fact that there was a gift over, indicating that the testator had in mind the complete devolution of the title under the will, and that there should be no intestacy.
The next case in point of time was Beckwith v. Beckwith (1877), 46 L. J. Ch. 97, in which the court of appeals (James, Baggalley and Bramwell) declined to follow Wake v. Varah and Waite v. Littlewood. The testator in that case directed his trustees to invest a fund for the benefit of his five daughters, and during the life of each to pay to her the income of a share and to hold the same in trust for her children, but in case there should be no child of that daughter who should attain a vested interest the share should accrue to his other daughters or other daughter surviving in equal shares. The will contained no gift over in the event of all the daughters dying without issue. It was held that the child of the daughter who died first took no interest in the share of the daughter who died next, the reason being that the testator did not provide against intestacy by a gift over, and that, therefore, the word "survivor" should be used in its common ordinary sense. A notable case is Lucena v. Lucena (1878), 7 C. D. 255; 47 L. J. Ch. 203; its facts are almost identical with those in the case at bar. There the testator divided the residuary estate into six shares and provided for the transfer to the sons of immediate title to and possession of their shares, but also provided that the shares of the daughters should remain vested in the trustees upon trust for the daughters for life and afterwards for their issue, and that in case the daughters should die without having received their share and without lawful issue, then such shares to be divided equally among his "surviving children” in the same manner as the original shares.
One daughter died in 1876 without issue. At that time one son only was living, and two daughters had died leaving issue. One son had died leaving issue and one without leaving issue. The controversy was over the distribution of the share of the daughter who had died without leaving issue. Sir George Jessel, M. R., held that the words "surviving children” meant children surriving in person, or surviving stocks, and that the share in question must be divided into thirds between the surviving brother and the issue of the two sisters whose shares were settled. This judgment was reversed, but as to the division only, the court of appeal holding that "surviving children” must be construed "other children,” and that the share must be divided into fifths amongst the representatives of all the brothers and sisters. It was said that the decision of the master of the rolls was correct in so far as he held that the word "surviving" could not receive its strict construction, but that he was wrong with respect to the ascertainment of the persons who were entitled to portions of the share in question, and it was squarely held that under the circumstances of that case the word “surviving” meant “other."
In re Walker's Estate (1879), 12 C. D. 205; 48 L. J. Ch. 598, Vice-Chancellor Hall follows Waite v. Littlewood, and Lucena v. Lucena, in a case in which there was a bequest to the testator's children for life with remainder to their respective children with a clause of accruer for the shares of any of the testator's children dying without leaving issue in favor of his surviving children. This was held to carry an accruing share to the then living children of the testator and children of those then dead, even though the will contained no gift over on the death and failure of issue of all the testator's children.
In re Bilham (1901), 2 Ch. 169; 70 L. J. Ch. 518, the chancery division applied Waite v. Littlewood and Lucena v. Lucena to a case in which a testatrix gave a life interest in a fund to her three daughters with remainder to the children of each, with a gift over on the death of any tenant for life without leaving children to the surviving tenants for their lives, and then to the children of the surviving tenants for life in like manner as their original shares were given, with an ultimate gift over on the failure of issue of all the tenants for life.
All the English authorities are collected and discussed in Harrison v. Harrison (1901), 2 Ch. 136; 70 L. J. Ch. 551. The court of appeal, Cozzens-Hardy, J., quotes from the opinion of Mr. Justice Kay, In re Bowman, 41 C. D. 525: "It seems to me that the decisions establish the following propositions—first, where the gift is to A, B and C equally for their respective lives, and after the death of any of them, then to his children, but if any die withoui children, to the survivors for life with remainder to their children, only children of survivors can take under the gift over; second, if to similar words there is added a limitation over if all the tenants for life die without children, then the children of a predeceased tenant for life participate in the share of one who dies without children after their parent; third, they also participate, although there is no general gift over, where the limitations are to A, B and C equally for their respective lives, and after the death of any to his children, and if any die without children to the surviving tenants for life and their respective children, in the same manner as their original shares."
After a discussion of the authorities the writer concludes that the first two propositions are established by the authorities, but that the third is not warranted by them, and he declined to follow it. There is no reported English case dealing with the subject since Inderwick v. Tatchell, supra, in 1903, and I leave the discussion of the English cases with the feeling that there is not there any hard and fast rule for our guidance, nor anything which can do more than merely indicate in a general way the direction of the thought of the English judges on the point in question.
I have found no case in our state, nor has the diligence of counsel been more successful, in which the question at issue has been at all discussed. Perhaps but little light can be obtained from a discussion of the cases, because, after all, all the canons of construction fail when opposed by what appears to be the plain intent of the testator. There are some cases in other states to which, perhaps, reference should be made.
In Carter v. Bloodgood, 3 Sand. Ch. 293, the testator gave the residue of his estate to trustees, they to pay the annual income to his six children equally during their lives, and at the
death of either of them without issue that share to become part of the residue, the income of which was to be equally divided among the surviving children, and if either of his children should die leaving issue that share to be equally divided amongst those children. One daughter died without issue; then another died leaving one child, a son; and then two other daughters died without issue. It was there held that the words "surviving" children meant “other” children, and that the son of the deceased daughter was entitled to a share of the fund.
There is, likewise, the case of Ridgely v. Ridgely (1905), 59 Atl. Rep. 731, in which the court of appeals of Maryland seems to have decided the question in favor of the view adopted by Mrs. Cook, while only two years earlier the case of Wilson v. Bull (1903), 97 Md. 128,, held under the wording of the will in question that the words "surviving brothers and sisters” must be used in their ordinary meaning.
The paramount rule for the construction of testamentary instruments is that the court must strive to ascertain the intention of the testator as expressed by the words of the instrument. Such intention, if so ascertainable, will prevail over technical rules and will disregard the common, ordinary meanings of words and adopt such meaning as can be deduced from the testator's intention. This has long been the settled rule in England and America and needs no citation of authorities for its support.
I think that anyone who reads this will, not having in mind any legal rules of construction, but for the purpose of ascertaining the testator's mind, will be struck by the idea that his main thought was to make an equal division of his estate among the seven branches of his family, and that in case any specific beneficiary should not attain to title to and possession of a share, that share should not go out of the family and should not be subject to intestacy, but quite on the contrary thereof should pass under the terms of the will to the various stocks whom he had in mind as specific and direct beneficiaries; and that he did not mean that the interest of any of the female beneficiaries should be subject to be finally vested by reason of the chance of mere survivorship. How could he have any idea as to who the ultimate