Gambar halaman
PDF
ePub

SURVIVE-SURVIVING-SURVIVOR 6828

SURVIVE-SURVIVING-SURVIVOR

then declared that, if any of his children other prior interest, it takes effect in those should die without lawful issue, then his, who survive the period of distribution and her, or their share should be equally divide possession, unless a special contrary intent among the survivors. Held, that the word is found in the will. Blatchford v. Newber"survivors” referred to the period when the ry, 99 Ill. 11, 14, 45. estate should be divided after the happening of the event mentioned in the will, to wit,

The word "survivor," used in a will by the death of the wife. Williamson v. Cham which a testator devised all his estate to berlain, 10 N. J. Eq. (2 Stockt.) 373, 375.

two persons, in trust to take care of and

manage the same, and declared that the The rule is that where there is a devise trust should continue for 10 years after his or bequest for life, followed by a devise or death and no longer, and which then pro bequest to survivors, at the termination of vided that at the end of the 10 years all the life estate, the word “survivors” in its of the estate then remaining and the income natural and ordinary meaning refers to the thereof should be distributed and vest in his survivors at the time of distribution; and three sons, naming them, and their heirs, unless, upon taking the whole will into con- and, in case either of the said three sons sideration, the word is plainly used in some should die leaving no issue of their bodies, other sense, this ordinary and natural con- then the devise should go to the survivor of struction must prevail. Ashhurst V. Pot- them, refers to the period when the trust ter, 32 Atl. 698, 699, 53 N. J. Eq. 608. ceases, and not to the time of the death of

the testator. Blanchard v. Maynard, 103 Ill. A limitation over in a will to “my sur

60, 66. viving legatees" after the termination of a fee conditional estate means the legatees Where an estate is granted to persons surviving the first taker, on whose death described as “survivors,” it does not vest without issue the survivors were to take, and until the time designated for the enjoyment not the legatees who survive the testator of the estate, and the word "survivors" has Selman v. Robertson, 24 S. E. 187, 191, 46 in such case reference to that period. CheS. C. 262.

ney v. Teese, 108 III. 473, 482. While the word "survivor," when used In a will by which testator gave to in a will containing a devise to two persons each of his daughters £5,000, the interest to or the survivor, is usually restricted to death be paid to such daughters for life, and if of one of the beneficiaries occurring before they had children the principal to be divided that of the testator, the rule is not a fast one, among them if they should attain 21, and if and yields, like all arbitrary tests, to the a daughter did not have children it was to intention of the testator. Thus in a will by be divided among her "surviving sisters,” the a testatrix, 85 years of age, giving all the quoted phrase meant such sisters as should property to two grandchildren, who were survive children of another sister who died sisters aged 11 and 9 years, and providing under 21, and not merely those who survived that, in case of the death of either without the mother of such children. Carver v. Burheir or heirs, such one's share should go to gess, 31 Eng. Law & Eq. 529. the survivor, the term "survivor" was construed to apply to the death of one of the The word "survivor," where an estate is beneficiaries occurring after testatrix's death, by will conveyed to executors as executors, and therefore the estate of such beneficiary and the trust to them is in their official capassed to the other beneficiary. In re Cram- pacity, with a power surviving to the sole er, 69 N. Y. Supp. 299, 300, 59 App. Div. executor, means those who have accepted the 541.

trust. Herrick v. Carpenter, 52 N. W. 747,

749, 92 Mich. 440. A will directing the trustees, on the happening of a certain event, to dispose of By his will testator gave his widow certhe property and divide the proceeds equally tain property for life, and three unmaramong the “surviving children" of certain ried daughters were given a certain sum persons, meant those surviving at the time each; it being provided that if either of the of the distribution, and not at the time of daughters should die before marriage her the testator's death. Slack v. Bird, 23 N. J. portion should go to the survivors, and that Eq. (8 C. E. Green) 238, 239.

if there should be any increase in the prop

erty it should be divided among testator's It is a settled rule of construction that children and grandchildren. Other specific the word "surviving,” occurring in a settle devises were made. Held, that the word ment in a will, should be referred to the "survivors" did not mean all of the children period appointed by that settlement for the of testator surviving at the death of one payment or distribution of the subject-mat- of the daughters, but referred only to the ter of the gift, and, in the event of such a unmarried daughters. Dodge v. Sherwood, gift, the survivors are to be ascertained in 75 S. W. 417, 419, 176 Mo. 33. like manner by reference to the period of the payment or distribution. So, where a The term "survivor," as used in a will gift to survivors is preceded by a life or whereby a testator devised to each of his

SURVIVE-SURVIVING-SURVIVOR

6829 SURVIVE-SURVIVING-SURVIVOR

two daughters, and to the heirs of their by way of devise, since the term "survivor" body, forever, certain personal chattels, and imports a definite failure of issue. Abbott provided that, if the daughters should die v. Essex Co., 59 U. S. (18 How.) 202, 216, 15 without having a lawful heir of their body L. Ed. 352. to live, then he devised the said chattels to be equally divided “to the survivors," im As creating executory devise. ports the idea of the longest liver, provided

* Under a will whereby the testator bethe other daughter should leave no children queathed to two sons, to them and their behind her, that is, none living at the time heirs and assigns, certain property, to be of her death; for, if she had left a child, equally divided between them when they hat child or those claiming under it must should arrive at the age of 21 years, and nave taken, but, as there was none living at provided that, if either of them should die her death, then she who should survive before arriving at that age, then the part was the person to take. This, then, is not or share of the one dying should go to the a limitation depending on a remote, but a “survivor" of them, an estate in fee simple very limited, contingency. One which was

was created in the devisees, but by the to happen in a very short period, during clause providing for the passing of the propthe life of a person then living, cannot be erty to the survivor the estate by reason of called a limitation after an indefinite failure the word “survivor” was reduced to an exof issue to a person not then in being. Keat-ecutory devise. Howell v. Howell, 20 N. J. ing v. Reynolds (S. C.) 1 Bay, 80, 87.

Law (Spencer) 411, 420. "Survivors" is a flexible term, and when

As live after. used in a will, as applied to testator's children, does not necessarily mean surviving The primary meaning of the phrase children only, but may, when molded by the “who shall survive me," as used in a will, context and spirit of the will, consistently taken by itself, is, of course, perfectly obwith the literal import, comprehend all his vious, signifying the person or persons mensurviving descendants who were intended to oned who shall be living at the time of the be beneficiaries. Harris v. Berry, 70 Ky. death of the testator. The primary mean(7 Bush) 113. When a bequest is made to ing of the word “survive" is to live beyond one of several children dying without issue, the life or extent of, or to outlive; but it the testator should be understood to mean also has a secondary meaning, namely, to by "survivor" his other children, unless they live after, and as used in the phrase, “it eialso had died without issue, because his ther of my said sons should die without presumed object was that all who should leaving a child which shall survive him," have issue should be entitled to an equal the testator could not have used the word interest, and that nothing but death without "survive" in its ordinary acceptation, but issue should disturb that equality. Graves in the sense of “who shall live after him." v. Spurt, 17 Ky. Law Rep. 411, 413, 31 S. There has been much discussion in the W. 483, 484, 483, 97 Ky. 651 (citing Birney books as to the proper construction of the 5. Richardson, 35 Ky. [5 Dana) 429).

words "survive" and "survivor," when used Where a testator directed bis residuary decisions that the same rule of construction

in wills; but it is now settled by numerous estate to be equally divided among his brothers and sisters by name, or their sur will be applied to these words as to any vivors,” and he knew they had families, the others, namely, that they shall be taken in intent was to give to the survivors of each there is something in the context or attend

their literal and ordinary import, unless -not to the survivors of the brothers and

ing circumstances which shows that they sisters, but to each individual and their sur

were used in a different sense. Bailey v. vivors; and it was intended that each one named should take a part, and that that part, Brown, 36 Atl. 581, 586, 19 R. I. 669. when the devisee was dead, should go to his The word “survive,” in its popular sig. or her family. Appeal of Stoner, 2 Pa. (2 nification, may mean "overliving a specified Barr) 428, 431, 45 Am. Dec. 608.

individual," or "living beyond a specified

event,” or it may mean “still living," or As importing definite failure of issue.

"living at some designated period of time.” A testator by his will gave to his two As used in a devise to the testator's daughsons all his lands, live stock, bonds, etc., ter and her heirs generally, but if she should to be equally divided between them, and die without issue living at her death, “or if provided that, if either of his said sons her child or children surviving her should should die without any lawful heirs of their die before arriving at the age of 21 years, own, then the share of him who may first then over" to the testator's other children, die shall accrue to the survivor and his heirs. the words "surviving her" mean simply The will created an estate in fee simple wbat would otherwise have been implied in the sons, and by reason of the word "sur- from the limitation itself, “f she died leav. vivor" the share of the one who first died ing issue,” Jordan v. Roach, 32 Miss. 481, without issue passed over to the other son 613.

SURVIVE-SURVIVING-SURVIVOR

6830

SURVIVE-SURVIVING-SURVIVOR

conse

The word "surviving," as used in a de- , alive, must administer the estate as in other vise to children in trust for their children, cases under the orders of the probate court the share of any child dying without children Blanton v. Mayes, 58 Tex. 422, 423, 425. to go to the surviving heirs, meant the then surviving heirs, not those who should be aft Others synonymous. erwards born and who survive a future con

There has been much discussion as to tingency. In re Malseed’s Estate, 15 Wkly. the effect of provisions in wills in favor of Notes Cas. 368.

"survivors." The controversy has been “Survive,” as used in a will declaring whether the word should have its literal and that, in case B. and C. should die leaving no natural meaning, or whether it should prima heirs of either of their bodies, then all the facie be construed as equivalent to the word lands, etc., “before given to them shall be "others,” in the absence of circumstances or and remain to the children of my brethren something in the context showing that it and sister who shall then survive,” should was used in a strictly literal sense. There not be construed to confine the dying with is a line of older cases, as in Wilmot v. Wil. out issue to the time of the death, on the mot, 8 Ves. Jr. 10, holding to the latter view. ground that the word “survive” intends that Some eminent judges have also held that the person who is to take should be living the words were convertible terms; but where with the testator and outlive the rest of the word "survivor" has been given the the children. Hawley v. Inhabitants of force of “other,” thus letting in the issues Northampton, 8 Mass. 3, 31, 5 Am. Dec. 66. of a deceased member of a class by inher

itance from the parent, it has been usually The word "survivor," as used in a will done, as was the case in Harris v. Berry, 70 by which the testator gave the residue, aft. Ky. (7 Bush) 114, to avoid some er payment of all debts, to his executors and quences which it was quite certain the testato the survivor of them, means one who tor did not intend. It was necessary, in should survive the death of the testator. order to effect an intention appearing upon Forster v. Winfield, 23 N. Y. Supp. 169, 170, the entire will. The later cases, however, 3 Misc. Rep. 435.

hold that the word "survivor,” when unex. “Surviving sons," as used in the clause plained by the context, is to be given its nat. of a will providing that on the decease of ural meaning, and interpreted according to either of testator's three sons, leaving law

its literal import. As this rule may often ful issue, the issue should take, and in de defeat the unexpressed intention of the tesfault of issue the portion of a deceased son tator, courts readily listen to any argument, should be paid over to “my surviving sons,'

drawn from the context or other provisions requires an actual survival. Hendricks v.

of the will, showing that "survivor" was Hendricks, 79 N. Y. Supp. 516, 518, 78 App. used by him as synonymous with "other"; Div. 212.

but, unless this appear, it may now be re

garded as the settled rule that its literal Where a devise or bequest is made to meaning is to be given to it. Gorham v. several persons absolutely, the words "sur- Betts, 5 S. W. 465, 466, 86 Ky. 164. vivor or survivors" do not refer often to the date of the testator's death, and, of

"Survivors," as used in a will providing course, indicate that the property devised or that on a certain contingency property was bequeathed is to go to the person or persons of my children, was to be taken in its or

to be divided equally among the survivors who survive the testator. In re Foley, 10 N. Y. Supp. 12, 13, 2 Con. Sur. 298.

dinary sense, and not construed to mean

“others." The word in a will is to be conAs outlive.

strued in its natural sense, unless the will In its ordinary, as well as legal sig- in a different sense.

itself shows that it was used by the testator nification the word “survivor” means one 2 Hare, 14, 24.

Leemning v. Sherratt, 80 outlives another; one of two or more persons who lives after the others have While it is true that, in order to propdeceased. By will a testator bequeathed to erly carry out the intention of the testator, three persons, and the survivor of them, all the word “survivors" in a will has somehis estate upon certain trusts, which were times been regarded as synonymous with specified. Only one of the parties named "others." yet it is now established that the qualified; the other two having declined the same rule of construction will be applied to trust. The three to whom the bequest was the word "survivors” as to any other. It made in trust were named as executors of will be received in its natural and literal the will, which provided that no further ac- import, unless there is something in the contion should be had in the district court, or text or attending circumstances tending to a other court having jurisdiction of probate different conclusion. To construe it as an matters, than the registration and probating equivalent to "other" is a construction which of the will. Under such circumstances the the court will sometimes be compelled to executor who qualified, the others being still I adopt, in order to accomplish the intention

[ocr errors]

SURVIVE-SURVIVING-SURVIVOR

6831

SURVIVE-SURVIVING-SURVIVOR

which appears on the whole of the will. , and that the words "survivor" and "surAnderson v. Brown, 35 Atl. 937, 939, 84 Md. vivors" should be construed to mean "other" 261.

and “others," so that, on the death of the

sole surviving child, the share of a child The word “survivor,” in a will, when un previously deceased without issue should be explained by the context, will be construed equally divided among all of testator's grandin its natural sense; but if, when inter-children then living per stirpes. Cooper v. preted according to its literal sense, the Cooper (Del.) 31 Atl. 1043, 1046, 7 Houst. 488. tendency is to defeat the actual intention of the testator, courts will readily listen to the

"Survivors," as used in a deed convey. arguments drawn from the context for read. ing property to trustees for the benefit of the ing the word “survivor” as synonymous grantor's wife for her life, and providing with the word "other.” Duryea v. Duryea, that after her death the property should be 85 III. 41.

held in trust for the benefit and behoof of

her children by the grantor, or the survivors The word "survivors" held to be the of them which shall be living at the time of equivalent of "others" in a will.

In re De- her decease, includes both the children of vine's Estate, 48 Atl. 1072, 1075, 199 Pa. 250; the grantor and their issue, and is not conAppeal of Nichols (Pa.) 48 Atl. 1072, 1075; fined to children alone, and all the children Appeal of Bruner, Id.; Appeal of Williams, of the grantor, as well as all the children of Id.

any deceased child, stand on the same footIt is said in Lapsley v. Lapsley, 9 Pa. ing. Kenip v. Bradford, 61 Md. 330, 333. (9 Barr) 130, where testator gave certain "Surviving children,” as used in a wili rcalty to his four sons for life, but pro- providing for the payment of the income vided that, if any of “my sons shall die and interest from the residue of his estate without issue, their portions shall be di- to his daughters and son, naming them, in vided equally between the surviving broth- equal proportion during their natural lives, ers," that the word "survivors" in such and at the death of either of them without cases means “others.” In re Bacon's Es- lawful issue his or her share to continue to tate, 52 Atl. 135, 139, 202 Pa. 535.

be a part of the residuary estate, the income

of which should be equally divided among "Survivors,” as used by a testatrix in the "surviving children,” should be construgiving all her real and personal estate to ed to mean “the others"—that is, the testaher daughter and “her heirs, and half the tor's own children living, and the children navigation money for her natural life, and, of his deceased children and that he intendin case she dies without issue, all to be ed by his residuary bequest to put each divided between" four of the nephews and branch of his family on a footing of exact nieces, who are named, the part of one only equality, giving life interests to his children for life, and to be divided between the and the capital their respective issue, per survivors, means "others.” Barlow v. Sal- stirpes. “Where property is given to a pluter, 17 Ves. 478, 482.

rality of persons, with a devise or bequest Testator devised to each of his five chil- over, in certain events, of the shares of dydren certain land for life, remainder to the ing objects to the survivors, the word 'surchildren of each in tail, the share of any those who die before as those who survive

vivors' is construed 'others,' so that as well child dying without issue that could take the objects in question are entitled, providas his immediate devisees to go to "the surviror or survivors" of his children during ed, of course, that their death did not haptheir natural lives, and after their decease their shares to the operation of the limita

pen under circumstances which subjected to the children of such “survivor or survivors, forever (and) of any of my

tion over." Carter v. Bloodgood's Ex'rs (N. children who may be dead, leaving children Y.) 3 Sandf. Ch. 193, 299. claiming their parent's share, to be equally The word "survivors," in a devise, “if divided between the child or children of) either of the aforesaid legatees die without my surviving child or children as aforesaid, issue, the portion which she or they were and the child or children” of “any that may entitled to is to go to the survivors equally," be dead, claiming the right of their parent means the surviving devisees, to the excluor parents, share and share alike”; and then sion of the children of a deceased devisee. followed a devise over in case all his chil. Best v. Conn, 73 Ky. (10 Bush) 36. dren should die without descendants. The next item declared an intention to create

The word “survivor," in the absence of

part cross-remainders among his children, so that any explanation by a testator in an they and their children should continually of his will, must be interpreted according to inherit

, and that no other person should take its literal meaning, and points to those who any part of the estate while any of his chil

outlive the first devisee. Bayless v. Presdren or their lawful issue should remain. cott, 79 Ky. 252, 256. Held, that the parenthetical words should The word "survivors,” in a statute for be inserted to elucidate testator's meaning, the settlement and distribution of estates

SURVIVE-SURVIVING-SURVIVOR

6832

SURVIVING WIFE

sum

which provides that, if any of the children, and, if any should die without leaving dehappen to die before he or she becomes of scendants, then to pay over the capital of age, the portion of such child deceased shall such child's share to his or her surviving be equally divided among the survivors, brothers and sisters. Held, that the words means the surviving children, as the distri- "surviving brothers and sisters” did not and bution among children is the subject-matter could not include the children of the deceasof the whole provis Runey v. Edmands, 15 ed child Mullarky v. Sullivan, 32 N. E. 762, Mass. 291, 292.

763, 132 N. Y. 408. Where testator gave property to trus

Atestatrix bequeathed a upon tees, to be divided, after the death of per- trust for her daughter A. for life, and after sons who had life interests in it, among A., her death for her children, with a gift over, B., C., D., and E., in equal shares, and direct in default of children, to "the other or othed that, if any of them should die without ers of them, the said B., C., D., and E., equalissue before their respective shares should ly to be divided between them.” Held, that become payable, the share of the one so dy- the words “other or others" could not mean ing should be equally divided among the sur- surviving children at the death of the life vivor and survivors of them, the words "sur-tenant, since that construction would entirely vivor and survivors” were to be construed include the children of a daughter who died in their natural sense, and not as equivalent during the lifetime of a tenant for life, and to "other and others"; so that, A. having hence the share which belonged to A. durdied leaving issue who were living at the ing her life should be divided into fourths time fixed for the distribution of the fund, and given to B., C., D., and E. In re Haand B. having died leaving a son, who died gen's Trusts, 46 Law J. Ch. 665. without issue before the period of distribution, and C. having died without issue before

SURVIVABILITY. the period of distribution, no part of the shares of B. and C. went over to A.'s per “Assignability" and "survivability" of sonal representative. Crowder v. Stone, 3 things in action are convertible terms. TaRuss. Ch. 217, 224.

nas v. Municipal Gas Co., 84 N. Y. Supp.

1053, 1058, 88 App. Div. 251. "Survivors," as used in a will devising testator's residuary estate to his children equally, and providing that, in case of death,

SURVIVING HUSBAND. the share of the deceased child should go to "Surviving husband," as used in stat. his or her children, if any, and, in case of utes and legal phraseology, has the same Tailure of issue, be divided among the sur-force and meaning and the same legal effect vivors of the testator's children, equally, as "widower.” In re Ray's Estate, 35 N. Y. means the "survivors” absolutely and liter- Supp. 481, 482, 13 Misc. Rep. 480. ally, and should not be construed as meaning "others." Leeming v. Sherratt, 2 Hare, 14,

SURVIVING MEMBER. 15.

"Surviving members," as used in Act The phrase "children or survivors of May 18, 1887, providing that insurance comthem,” in a will in which testator gave all panies on the assessment plan shall deposit his estate to his wife for life, and directed with the Auditor a copy of its constitution that all remaining after her death should be and by-laws, which must show that all individed by his executors equally among bis demnities to beneficiaries are in the main children or the survivors of them, was con provided for by assessments on all “surviv. strued not to include a child of one of testa. ing members," are the antithesis of deceastor's children who had died prior to the death

ed, and not of lapsed, members. A surviv. of testator's wife. Sinton v. Boyd, 19 Ohio ing member is one who has always paid up St. 30, 36, 2 Am. Rep. 369.

his assessments and is still a member of the The word "survivor,” as used in a will company. Surviving members are those who protiding that the above devises “to my child who have continued to be members of the dren, being to them, their heirs and assigns, company by keeping up their policies and and, if 'any die without issue, then to the paying their assessments. Mutual Ben. Life survivor or survivors of them in equal Ins. Co. v. Marye, 8 S. E. 481, 482, 85 Va. 643. shares," did not include an heir of one of the children dying, but, on the death of one of SURVIVING PARTNER. the three without heirs, confines the survivorship to such children. Guernsey v. Guern

As personal representative, see "Persey, 36 V. Y. 267.

sonal Representative." Testator left a remainder to be divided

SURVIVING WIFE. in equal shares, the income to be applied to the use of his children surviving him during A woman who has been divorced cannot the life of each severally, and on the death be deemed a “surviving wife"; but, unless of each child to pay over the capital of the there has been a judicial decree dissolving share of such child to his or her descendants, the marriage relation, a wife who outlives

« SebelumnyaLanjutkan »