Devise and Legacy. A testator, who at the time he made his will had a wife and two daughters, bequeathed to his daughter M $100, and to his daughter L or for her benefit gave all the rest of his property to be enjoyed by her at times and in a manner directed. He further provided as follows: "If the said L shall die without issue before she shall be entitled by this will to receive as aforesaid the whole or some remaining portion of the property . . . I do hereby devise and bequeath all said property and estate not received by her or paid for her behalf at the time of her decease . . . to my wife J. In case of the decease of my daughter L and my wife J to go to my heirs at law." The testator's daughter L died in his lifetime without issue. His wife and his daughter M survived him. Held, that the testator, in referring to the death of his daughter L, meant that death whenever it should happen, whether before or after his own death, and that accordingly all of the residue passed under the will to his widow.
SHELDON, J.
While the provisions of this will are somewhat confused, it is not difficult to perceive the intentions of the testator. He gave to his daughter Mary, the appellant, the sum of $100. He desired all the rest of his property to go to his daughter Lilian, but to be paid to her or for her benefit only at the times and in the manner stated in his will. If she should die leaving issue before she had received the whole or [any] part of what he thus had devised and bequeathed to her, it was to be paid to her children; if she should die without issue, then he bequeathed all his property to his wife. He further provided that in case of the decease of his daughter Lilian and his wife, all his property should go to his heirs at law.
His daughter Lilian died in his lifetime, without issue, but his wife and his daughter Mary survived him. The wife has since died. The question is whether his property goes to his heirs as intestate estate, or otherwise, or whether upon his death it vested in his wife.
If his daughter Lilian had left at her death children who had survived the testator, it is clear that those children would have taken his property, not only by force of the statute, R.L.c. 135, § 21, but under the language of the will itself. Not only would the plain words of the will require this, but it is inconceivable that the testator should have intended the rights of the possible issue of Lilian to depend upon whether she should or should not survive him. But this consideration shows clearly that when he referred to the death of Lilian, he meant that death whenever it should happen, whether before or after his own decease. Accordingly, the rights of his wife, depending upon the other alternative, the death of Lilian without issue, must be the same whether that death should occur before or after that of the testator. If this conclusion were not otherwise manifest, it would be made so by the fact that his property was to go to his heirs at law in case of the decease of his wife and daughter, and only upon the decease of both of them. This included of course their decease during his own lifetime, and makes it certain that the death which he had in mind was not merely a death after his own decease.
It follows that the decree of the Probate Court was correct and must be affirmed.
So ordered.