Stevenson v. Stevenson

Burch, J.

(Concurring specially) :

The decision must turn on the interpretation given the will. What was the intention of the testator ?

The entire estate was given to Harriet for her life, and at her death to the three sons in equal shares. The testator then dealt with certain situations which might arise, including the very one which occasioned this litigation: What if one of the sons, whose enjoyment of his share of the estate was deferred until his mother’s death, should die first, leaving issue or descendants? The testator had a notion that under these circumstances the share would lapse. This-was something which he did not wish to occur, so he inserted this provision in the will: “I direct that his share shall not lapse.” Completing the precaution, the testator added this provision, “but shall be paid to such descendants in equal proportions.”

The thing which obtruded upon the testator’s attention in case a son should die before the life tenant, leaving descendants, and the thing which he took particular care to provide should not occur, was “lapse.” What is it? The legal, the popular and the dictionary meanings are all the * same. To lapse is to fail, to become ineffectual or void, to fail to pass from one proprietor to another, and specifically in case of a devise, to fail to take effect because of the death of the devisee'. Therefore the provision of the will, “I direct that his share shall not lapse,” means this: “In case a son shall die, leaving descendants, before his mother’s life estate terminates, I direct that the share which I have given him shall not fail, or become ineffectual or void, or fail to take effect, because of his death.” This is the very opposite of a devise of property to pass upon the happening of an uncertain and dubious event — surviving a life tenant, *85and the very opposite of vesting an estate to be devested upon the happening of a contingency — death before a life tenant. On the other hand, the purpose clearly indicated was to vest in a son dying, before his mother, his share of the estate as effectually as if death did not intervene.

There is no ambiguity in the will thus far. There remains to be considered the concluding provision of the third clause, “but shall be paid to such descendants in equal proportion.” This provision, instead of overthrowing, confirms and carries out the one preceding it, whereby the creation of vested remainders was fortified. Use of the word “paid” indicates that technical and legal precision of language was not always attained. The testator used the word “issue,” which is a term of very general signification, and in wills frequently means “heirs.” To help phrase his thought, the testator attached to the general term the alternative, “or descendants,” and then used the expression, “such descendants,” to indicate whoever had been referred to. The primary and dominant thought, clearly and forcibly expressed, having been to prevent a devise from failing on account of the death of the devisee, the supplemental provision is more consistent with the idea of descent of a vested share of the estate than with the idea of a devise over to descendants of a lapsed share. If the meaning were less clear than it appears to me to be, the rule that a testator must leave no doubt of his ihtention to create a contingent instead of a vested remainder, might be invoked.