The Curiosities and Law of Wills

by John Proffatt

In wills, legatees are sometimes designated under a general name or class, and a difficulty often arises to determine what individuals shall be included in such a designation. Where a testator uses such general terms, without defining or limiting them, they have a meaning given them by the general rules of construction in law. Indeed, the testator’s intention may be frustrated by using certain terms, which may appear to him to include or exclude certain individuals in his bounty, but which may be so enlarged or restricted by the rules of law as to defeat their object. As in the instance where a lady, dying, and intending to give her personal wearing apparel to her servant maid, bequeathed to her all her personalty, which under the rules of law meant all her personal estate, which was valued at $60,000, and which under such a term must necessarily go to the servant.

In general, no rule is better settled than that legatees must answer the description and character given them in the will, but it will presently appear, from the cases, that there are many important exceptions to it.

We shall refer to some of these general names or classes, sometimes met with in a will, by which individuals belonging to such classes become entitled to a legacy.

When a testator leaves a legacy to “children,”[186] it is a general rule, that those within that designation at the time of the testator’s death become entitled; but if, from the expressions and context of the will, it is ascertained that he intended only those who answered that description at the date of the instrument, such intention will be observed.[187] A court of equity, however, is careful that a liberal construction be placed upon such a term, and always, if possible, will hold that it shall include children in existence at the death of the testator, and especially if the testator stood in loco parentis to the legatees.[188]

The general rule, it is claimed in Collin v. Collin,[189] is, that in a will of personal estate the testator is presumed to speak in reference to the time of his death, and not to any previous or subsequent period.

A child in ventre sa mere, at the time of the testator’s death, is held to be in esse, if it is afterwards born alive, and to be equally entitled as those children who were born in the lifetime of the testator.[190]

If there be a postponement of the division of a legacy given to a class of individuals until a certain time after the testator’s death, every one who comes under the description at the time when the distribution is made will be entitled, no matter if he was not in esse at the time of the testator’s death, unless from the will it be gathered that the testator intended to limit his bounty to those only who were living at the time of his decease.[191]

And where the legacy in the will indicates a present bequest of a fund which is to be distributed at a period subsequent to the death of the testator, those who are in esse at the time of his death will take vested interests in the fund, but subject to open and let in others who may come into being, so as to answer the description and belong to the class at the time appointed for the distribution. Where, however, a fund is bequeathed to children or others as a class, to be divided equally among the persons composing the class, when they arrive at the age of twenty-one, or marriage, only those who shall have been born or begotten when the oldest arrives at the age of twenty-one, or when the first of the class is married, are entitled to share in the fund.[192]

Although, as a general rule, a devise to children, without any other description, means legitimate children, and if the testator has such children, parol evidence cannot be received to show that a different class of persons was intended; still, in these cases, as in all others, it is proper to look into circumstances dehors the will, to see whether there are any persons answering the description of the legatees in the legal sense of the term used; and if it appear that there are not any such persons, it is then allowable to prove the situation of the testator’s family, to enable the court to ascertain who were intended by the testator as the object of his bounty. Thus, in Gardner v. Heyer,[193] where the testator died a bachelor, but had for a long time lived and cohabited with M. Smith, by whom he had and left four children, a son and three daughters, who had been by him placed at school and acknowledged as his children, and were generally reputed as such by his friends; and by his will he gave to his son John $10,000, to be paid to him when he arrived at the age of twenty-four, the interest in the meantime to be applied to his maintenance and education; and he also gave to each of his daughters $3,000, payable at the age of twenty-one, and the interest in the meantime to be applied to their education and support; and he directed his executors and trustees to pay $65 to M. Smith, the mother of the children, quarterly, during her life, if she remained single and had no more children; and he devised and bequeathed all the residue of his estate, real and personal, to his executors and trustees, and the survivor of them in fee, in trust, to pay two-thirds of the income thereof to his son John, and one-third to his daughters during their lives, with remainder to their issue; and he gave cross-remainders to the survivors in case any of the children should die without issue; and he also appointed the executors and trustees, guardians of the children during their minority, and earnestly requested that the utmost care should be taken of their morals and education. The court declared that there was no doubt as to the legal and equitable rights of the children of M. Smith under the will.

A bequest to an unborn, illegitimate child, the mother being described, is valid, unless the child be pointed out as having a certain father, for then it is void, the bastard being in point of law nobody’s child—filius nullius.[194]