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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 414 The main ground upon which the appellants rest their appeal, is that by the statute the devises to those devisees who died before the testatrix, did not lapse, but that the estate so devised, vested in the children or other heirs at law of the devisee, in the same manner, and to the same extent as if such devisee had survived the testatrix.
By the statute (3 R.S. 5th ed. p. 146, § 4) it is enacted: "Whenever any estate, real or personal, shall be devised to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate."
The decision of the questions raised, depends entirely on the question, what was meant by the legislature in using the word descendants in this section. The same word is used in both clauses of the section, and the same interpretation must be given to it. If the sisters, and nephews and nieces of the testatrix can be considered as descendants, then the statute would operate, and the estate would pass in like manner to their children or collateral relatives; but if they are not descendants within the meaning of the term as so used, then the statute does not apply.
There can be no doubt but that prior to the passage of this statute these devises would have lapsed, in consequence of the death of the devisee before the testatrix; nor did it alter the rule that the devise was made to the devisee and his heirs. (Page v. Page, 2 Stra. 820; Mowatt v. Carow, 7 Paige, 328; Bishop v. Bishop, 4 Hill, 138.) *Page 415 And this rule still remains in force, unless it be held that brothers and sisters, and nephews and nieces are descendants of the testatrix.
The meaning of the word "descendant," as given by Webster is, "any person proceeding from an ancestor in any degree, issue, offspring in the line of generation."
The use of the word descendants in a devise has received the limited construction which confines it to issue. In Cropley v.Clare (Amb. 207), a devise of real estate to the descendants of A, c., was held to apply to those who proceeded from the testator's body. In Legarth v. Haworth (1 East, 120), the word descendants was confined to children and grandchildren.
In Haydon v. Willshere (3 Durn. East, 372), the word issue is held to be co-extensive with descendants. (2 Hilliard on Real Property, 573; Davenport v. Hanbury, 3 Vesey, 257;Leigh v. Norbury, 13 Ves. 340.) No case has been cited to us, nor have I been able to find any, where a devise to descendants has ever been construed as meaning any more than issue or lineal descendants. But all the cases confine the term to issue of the body. Nor is there any use of the word in the revised statutes that will admit of any other construction. Thus in the chapter of descents (1 R.S. 751), land descends to the lineal descendants, and afterwards to collateral relatives. So in the third and fourth sections, land descends to the children living, and descendants of such children as shall have died. In the third section it is provided if the intestate dies without descendants, then the inheritance shall go to the father. The sixth section provides that if there is no brother or sister, and no descendants of a brother or sister, the inheritance shall descend to the mother. So in section fourteen of 1 R.S. p. 735. In the case of illegitimate persons dying without descendants, the estate descends to the mother. In all these cases, and wherever else the word is used in connection with title to real estate, I think it is apparent that the legislature meant to confine the *Page 416 term "descendants" to the issue, and not to extend it to collateral relatives.
But we are urged, even if the construction contended for by the appellants be not admissible, to extend the statute to this case because it is within the equity of the statute, if not within its meaning.
It does not appear to me that we are warranted to adopt such a rule in a case of this kind. The law, until the passage of the act relied on, was the other way. The legislature altered it so far as to give to the issue of a devisee the estate which such devisee would have taken if he or she had survived the testatrix. So far it was an equitable provision. But I do not see any propriety in extending the rule to collateral relatives in whom the testatrix might have no interest, and to whom she might not have been related. To extend that provision to collateral relatives would not certainly carry out the intent of the testatrix. It was given to the devisees to benefit them, but the court has no right to presume that the same cause would have induced the testator to bestow her estate on distant collateral branches of the family.
It is also urged, on the part of the appellants, that the devise being to the devisees and their heirs, the title should pass notwithstanding the death of the devisee. Such a form of devise was necessary, before the revised statutes, to express the intent to give a fee, and the same form is used now, in many instances, to avoid doubt as to the intent of the testator. The mere fact that other words may be used to show such intent, is no reason why any other interpretation should be given in the use of such words now, from what they received formerly.
The law, as it existed previously, did not pass any estate to the heirs of the devisee where he died before the testator, and the use of the same words should not have any such effect, although they may be unnecessary to pass a fee to the devisee if he had lived.
Nor is it at all clear that it would be carrying out the *Page 417 intent of the testatrix to adopt the views of the appellants. It probably would be in the case of those devisees who died leaving issue, but there is nothing from which we can conclude that the testatrix would have given her property to the collateral relatives. There is no propriety in adopting a conclusion of this kind, because it would be more equitable, when it is plain from the will and the statute that neither in terms authorizes such a construction.
In regard to the residue of the will, there is no ground for interfering with it because one or two specific devises have failed. The others are perfect in themselves, and the devisees are entitled to their shares. This is not a case in which the plan of the whole will is affected by the failure of one or more to take the portion devised to them. Any such rule would subvert every will, if for any cause a devise of part is bad.
I am for affirming the judgment of the supreme court.