While the Revised Statutes authorize one to dispose of all his property by will, they make careful provision to protect his descendants from accident or oversight *Page 202 in two classes of cases: 1. When a child, born to the testator after the date of his will, is left unprovided for. (2 R.S. 65, § 49; L. 1869, ch. 22, § 1.) 2. When a child to whom a legacy is given by his parent's will dies during the lifetime of the testator leaving a child or other descendant who survives the testator. (2 R.S. 66, § 52.) In the former case the after-born child, notwithstanding the will, succeeds to the same portion of the parent's estate as if he had died intestate; and in the latter the legacy does not lapse as it would at common law, but vests in the surviving children or other descendants of the child so dying, as if such child had survived the testator and had died intestate. The same care is taken with reference to a devisee or legatee who is a witness to a will. While the gift is void, still if the witness would have inherited in the absence of a will, he takes the same share, not exceeding the value of the gift, notwithstanding the will. (2 R.S. 65, 66, §§ 50, 51.)
There would be no difficulty in this case if the plaintiff's mother had died after the will was made and during the lifetime of the testator, but it is claimed that as a legacy to a deceased person is void, the statute should be limited to a child dying between the date of the will and the death of the testator. The only case upon the subject in this state covers that point specifically by holding that owing to the statute a grandchild takes a legacy through its father, even if the father died before the will was made, and the grandfather, who was the testator, had heard of it when he executed the will. (Barnes v. Huson, 60 Barb. 598.)
In the able opinion written in that case the court said: "To construe this statute with literal and technical accuracy, regardless of anything else, would abrogate it. `Nemo est hæresviventis' is a familiar maxim of law. If none can be the heir of a living person, certainly none can be his devisee or legatee. A will speaks from the death of the testator, and no person not then in existence can, strictly speaking, be either the devisee or legatee of such testator. Hence, if construed technically by its words alone and without reference to its *Page 203 obvious intent and purpose, the entire provision would be rendered nugatory."
After pointing out the object of the statute and the evil to be repressed, the court continued: "Considering the evident purpose and policy of the act, the mischief intended to be remedied and the fact that it is a remedial statute, to be liberally construed, we are of the opinion that its meaning is to prevent the lapse of a devise or bequest to a descendant of the testator, although the proposed devisee or legatee shall have left lineal descendants, who shall be living at the testator's death; and this, whether the death of the proposed devisee or legatee shall have occurred before or after the date or making of the will."
Similar statutes have received the same construction in many of the states as well as in England. (Nutter v. Vickery, 64 Me. 490;Bray v. Pullen, 84 Me. 185; Minter's Appeal, 40 Penn. St. 111; Patrick Bradley's Estate, 166 Penn. St. 300; Cheney v. Selman, 71 Ga. 384; Darden v. Harrill, 10 Lea, 421;Wilderger v. Cheek, 94 Va. 517; Jamison v. Hay,46 Mo. 546; Chenault v. Chenault, 9 S.W. Rep. [Ky.] 775; Mower v.Orr, 7 Hare Ch. 473; Winter v. Winter, 5 id. 306;Barkworth v. Young, 4 Drewry, 1; Wisden v. Wisden, 2 Smale Giff. 404.) In each of these cases the legatee died before the will was made, yet it was held that his children took what he would have taken had he survived the testator. InMurphy v. McKean (53 N.J. Eq. 406) the doctrine of the Maine, Pennsylvania and English cases, as to the effect of the death of a legatee before the making of the will, was expressly adopted, but it was held that the children of the legatee could not take in that case because he died before the statute went into effect.
On the other hand some courts take the other view. (Howland v. Slade, 155 Mass. 415; Almy v. Jones, 17 R.I. 265;Billingsley v. Tongue, 9 Md. 575.)
The argument against lapsing under the circumstances mentioned, as gathered from the various authorities, rests on *Page 204 the beneficial policy of the act rather than the strict meaning of the language used. While the common law makes a technical distinction between death before the will, which makes the gift void, and death after the will, which causes it to lapse, a statute to remedy the mischief aimed at should extend to both, even if its terms seem to narrow it to one. There is no restriction in the statute as to the date of the child's death, provided it is during the testator's lifetime. It is held that the principle is the same and the sense of justice as strong whether the will was made before or after the death of the legatee. The statute is in furtherance of the presumed intention of the testator and aims to prevent the estate of a child "from losing the gift to him and his family from being left unprovided for" by reason of the death of such child at a particular time, or under one state of facts, but not under any other. This, as it is urged, would disappoint the intention of persons in general and, hence, the statute provides for it. It has regard to the class of individuals for whose relief it was enacted, rather than "to any technical distinctions in the manner of failure against which it proposes to guard them." As to them, the result at common law would be the same whether their ancestor died before or after the date of the will, provided he died before the testator. The element of futurity in the words "shall die," as used in the statute, does not refer to the date of the will, but to death during the lifetime of the testator. As the legislature made no other limitation, the courts should not make one, but should construe the statute in accordance with its fundamental purpose, which is to save to lineal descendants of the devisee the benefit of a devise which at common law would fail of effect by reason of the death of the original devisee during the lifetime of the testator. The persons for whose benefit the act was passed are not changed, and their claim to the bounty of the testator is not affected by the mere date of their parent's decease.
The reasoning on the other side of the question is based mainly on the common-law principle that a legacy to a deceased person is a nullity, and that the statute speaks of *Page 205 lapsed legacies, but not of void legacies. I prefer the broader view that gives full force to the general purpose of the statute, which was to save to the descendants of devisees and legatees the gifts which their parents would have taken had they survived the testator. The other provisions of the statute reflect light upon the subject and show the liberal and comprehensive object of the legislature. I think the weight of reason and authority is in accordance with the conclusion indicated.
Moreover, the case of Barnes v. Huson (supra), which was very carefully considered, has stood as the law of the state for more than thirty years, without interference by the legislature or the courts. It should not now be overruled, for the public have had the right to rely upon it, and non constat the testator in question relied upon it when he made his will, and refrained from making specific mention of the plaintiff because he thought it unnecessary. If the rule is changed, the change should be made by the legislature. (Sutherland on Statutory Construction, §§ 313-316.)
It is, however, claimed that as the bequest in this case was to a class, and the name of the plaintiff's mother was not specifically mentioned, the statute has no application. Some cases take this view, relying upon the common-law rule that a gift to a class includes only those members thereof who are alive when the testator dies. (Matter of Nicholson, 115 Iowa 493;Davie v. Wynn, 80 Ga. 673; Tolbert v. Burns, 82 Ga. 213;Almy v. Jones, 17 R.I. 265.)
Other cases take the opposite view, including some of those which hold that the statute does not apply when the legatee dies before the date of the will. (Howland v. Slade,155 Mass. 415; Re Stockbridge's Petition, 145 Mass. 517; Bray v.Pullen, 84 Me. 185; Moses v. Allen, 81 Me. 268; In reBradley's Estate, 166 Penn. St. 300; Wilderger v. Cheek,94 Va. 517; Jamison v. Hay, 46 Mo. 546; Woolley v. Paxson,40 Ohio St. 307; Strong v. Smith, 84 Mich. 567.)
The same arguments used to solve the other question should control this also. The statute, as both parties agree, should be *Page 206 read into the will so that it speaks as a part of the will. Its object is to do away with those technical rules of the common law which defeat natural justice and the presumed intention of the testator by throwing his property away from those of his own blood by direct descent. The policy of the law, as shown not only by the statutes cited, but by the Statutes of Descents and Distributions, is to send the property of a decedent to his children, and, if they are dead, to his children's children. Construction should not be so strict and conservative as to defeat this beneficent purpose, but should be liberal, looking toward the object rather than the letter, in accordance with the general rule applicable to remedial legislation. There is no substantial difference between a gift to all the members of a class, naming none, and a gift to each member of a class, naming each one. When a testator has but two or three children, it is easy and natural to mention each by name, but when he has nearly a dozen, as the testator in this case had, the average man would describe them as a class, yet the actual intention would be the same in both cases. As the statute applies to the descendants of every deceased child, it should apply to the descendants of a child who is described with certainty although not by name. Since the deceased child is treated in effect as taking a legacy for the purpose of transmission to his descendants, in violation of the rule at common law, so, although described as a member of a class only, he should be treated as taking for the same purpose, although at common law the result would be otherwise. There is the same reason for substituting the heirs of a deceased child in the one case as in the other, for in neither would there be a gift to the descendants were it not for the statute, and the intention of the statute, as I interpret it, is that it should apply to both. It covers "any gift to any child, though no living at the testator's death."
It goes without saying that the statute speaks upon the subject only when the will does not, for if the testator manifests a clear intention that the descendant of a deceased child shall not take its parent's share, notwithstanding the statute, his *Page 207 intention will be carefully followed. In this case as he did not say directly or indirectly that the plaintiff should not take the share of her deceased mother, I think the statute speaks for him and declares that she shall. It follows that the judgment appealed from should be affirmed, with costs.
GRAY, O'BRIEN and HAIGHT, JJ., concur with CULLEN, Ch. J.; BARTLETT and WERNER, JJ., concur with VANN, J.
Judgment reversed, etc.