MCGILL, Ch.
(Syllabus by the Court.)
On motion to dismiss the bill, under chancery rule 224, 6 Atl. Rep. iii. Bill by Alfred Walling, Jr., against Paul W. Burdge, administrator de bonis non, etc., of Phebe Murphy, deceased. Defendant moves to dismiss.
Edward Q. Keasbey, for complainant. Alfred Walling, Jr., pro se.
MCGILL, Ch. The object of the bill, and the motion to dismiss it, is to speedily obtain a construction of the will of Phebe Murphy, deceased. No objection is made because of the lack of necessary parties to the suit. Mrs. Murphy died in 1853, and her will, which is without date, was admitted to probate on the 2d day of November, in the same year. After making provision for the payment of debts, the will continues in these words: "Item. I give and bequeath unto my son Timothy all the property left by my late husband, or such of it as may remain after my decease, except as follows: Item. In the event of my son Timothy dying without issue, it is my will that two thousand dollars be equally divided between my sister Nancy, of Monroe county, New York, and my brother Richard, of New York city. Item. In the event of my brother Richard's decease before coming in possession of this legacy, it is my will that his son John Wesley, or his heirs, receive five hundred dollars, and the remainder to go to my sister Nancy or her heirs." The sister Nancy, and the brother Richard, and Richard's son, John Wesley all died before Timothy. Timothy survived his mother, and died in July, i887, without issue. Nancy left children, and the children of deceased children, who are her heirs at law; and John Wesley left three children, (one of them the complainant,) who are his heirs at law. During his life Timothy invested $2,000 of the moneys of his father's estate that he took under his mother's will upon bond and mortgage, and during his life used only the income therefrom. That fund, invested upon mortgage, has now come to the hands of the defendant as executor of the will of Timothy, and a share of it is claimed by the complainant. The defendant insists that the provision of the will for the gift over, in the event of the death of Timothy without issue, is within the settled rule that, where there is a bequest to one person, and "in case of his death" to another person, such and similar expressions, unexplained by the context of the will, are to be confined to the event of the death happening before the period of payment or distribution. Hawk. Wills, 254; 2 Rop. Leg. 607; 2 Williams, Ex'rs, 1260; 3 Jarm. Wills, (R. & T. Ed.) 606. Thetherefore, A. should take a life-estate, and B. and C. the remainder. In Wow-Ian v. Nelligan, Id. 489, the bequest was: "I give and devise unto my beloved wife, H. N., all my real and personal estate. I make no provision expressly for my dear daughter, knowing that it is my dear wife's happiness, as well as mine, to see her comfortably provided for; but, in case of death happening to my said wife, in that case I hereby request my friends S. and H. to take care of and manage, to the best advantage, for my daughter H., all and whatsoever I may die possessed of." Lord THURLOW held that the words "in case of death," here used, meant dying at any time. Sir WILLIAM GRANT said of the case (Cambridge v. Rous, 8 Ves. 22) that it was evident that the testator intended that the daughter should take some benefit, and that she could only get it by the limiting of her mother to a life-estate. In Lord Douglas v. Chalmer, 2 Ves. Jr. 501, the testatrix bequeathed her residuary personal estate for the use of her daughter, F., and, in case of F.'s death, to the use of F.'s children. In a codicil the testatrix gave a ring to F. and her wearing apparel to A., or, if A. should be dead before her, then over. It was held that F. took only a life-estate in the residuary personal estate, because the codicil made it manifest that, when the testatrix intended to give an absolute legacy, defeasible upon the death of the legatee before her, she declared such intention; and that circumstance raised a strong presumption that, if her meaning had been the same in relation to R., she would have used similar words, and, in addition, that the gift of the ring was unnecessary and inconsistent with an intent to give F. an absolute estate in the residue, but quite consistent with an intention that she should take the residue for life only. In Duhamel v. Ardovin, 2 Ves. Sr. 168, a testator left his property to his son, charged with an annuity to his widow; "but, should the hand of death fall on my widow and son," then over. Lord CRANWORTH held that the event of death intended could not happen in the life-time of the testator, because death was to come to his widow.
I think, after a careful examination of the will before me, that Phebe Murphy intended that the gift over to her brother and sister, or their heirs, was to take effect upon the death of Timothy without issue after her death. It appears to me that if she had intended merely to substitute her brother and sister for her son, if he should have died without issue before her, the substitution would have been as extensive as the gift to the son, and not have been confined to $2,000. I do not think that she contemplated that her son would die before her without issue, because, in that event, she would die intestate of that portion of the gift to him which was not included within the substitution. Her purpose evidently was to dispose of her entire estate by her will. The inclination of the courts is against a construction of a will that will result in partial intestacy. The contingent provision for the brother and sister is in the form of an exception from the estate and interest granted to the son. Its language imports a taking of the entire fund by the son, subject to the loss of $2,000. That loss was to occur by the happening of the contingency of his dying without issue. By the law, if he should die without issue before the testatrix, the legacy to him would lapse, and the loss would be total. In such case he would not take so as to be in position to lose. In order to take and be subject to the exception from his legacy, he must survive the testatrix. The predicament that the testatrix desired to avoid was her son's taking the property bequeathed to him, and then dying without issue, having made disposition of the entire property to the exclusion of those of her blood. She evinces a concern to provide against this situation by the careful provision she made for takers at her son's death, and in this very provision she manifests the contemplation of a distant time. First, her brother and sister were to take the $2,000. But they might die before Timothy. In that case, the heirs of the sister were to take three-fourths, and the son of Richard, the brother, one-fourth, of the $2,000. But even Richard's son might die before Timothy. That event is also provided for by the direction that his heirs shalltake in his stead. Such precise, careful provision indicates the contemplation of a distant future event, more remote than the death of the testatrix, and possibly as remote as the death of her own and her son's generation. The testatrix could hardly have intended the provision in question to be for the event of the death of her son, her sister, her brother, and her brother's son before her, and not have had reference to the death of her son after her death. In the case of Child v. Giblett, 3 Mylne & K. 71, a testator bequeathed the residue of his property to his daughters S. and E., and provided that, in case of the death of either, the whole should go to the survivor of them; and, in the event of their marrying and having children, then to the child or children of them, or the survivor of them, if such child or children should attain the age of 21 years, but, if not, then to the children of G. S. and H. survived the testator, and then S. died without having married, and bequeathed her property to E. Sir JOHN LEACH held that the bequest did not absolutely vest in S. and E. on the death of the testator, but continued subject to the executory bequest over to G. He said: "The testator could not possibly have intended that the children of G. should take, in the event of a marriage of his daughters, and their death without children, in his life-time, and that they should not take in the event of a marriage of his daughters, and their dying without children, after his decease. That would not be a rational distinction." My conclusion is that Timothy did not take the $2,000 absolutely at the death of his mother, and that, as he died without issue, the $2,000 must be distributed to the heirs of Nancy and John Wesley, in their respective proportions. The motion will be denied.