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possession, unless a special contrary intent is found in the will. Blatchford v. Newberry, 99 Ill. 11, 14, 45.

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 among the survivors. Held, that the word "survivors" referred to the period when the estate should be divided after the happening of the event mentioned in the will, to wit, the death of the wife. Williamson v. Chamberlain, 10 N. J. Eq. (2 Stockt.) 373, 375.

The rule is that where there is a devise or bequest for life, followed by a devise or bequest to survivors, at the termination of the life estate, the word "survivors" in its natural and ordinary meaning refers to the survivors at the time of distribution; and unless, upon taking the whole will into consideration, the word is plainly used in some other sense, this ordinary and natural construction must prevail. Ashhurst v. Potter, 32 Atl. 698, 699, 53 N. J. Eq. 608.

A limitation over in a will to "my surviving legatees" after the termination of a fee conditional estate means the legatees surviving the first taker, on whose death without issue the survivors were to take, and not the legatees who survive the testator. Selman v. Robertson, 24 S. E. 187, 191, 46 S. C. 262.

While the word "survivor," when used in a will containing a devise to two persons or the survivor, is usually restricted to death of one of the beneficiaries occurring before that of the testator, the rule is not a fast one, and yields, like all arbitrary tests, to the intention of the testator. Thus in a will by a testatrix, 85 years of age, giving all the property to two grandchildren, who were sisters aged 11 and 9 years, and providing that, in case of the death of either without heir or heirs, such one's share should go to the survivor, the term "survivor" was construed to apply to the death of one of the beneficiaries occurring after testatrix's death, and therefore the estate of such beneficiary passed to the other beneficiary. In re Cramer, 69 N. Y. Supp. 299, 300, 59 App. Div.

541.

A will directing the trustees, on the happening of a certain event, to dispose of the property and divide the proceeds equally among the "surviving children" of certain persons, meant those surviving at the time of the distribution, and not at the time of the testator's death. Slack v. Bird, 23 N. J. Eq. (8 C. E. Green) 238, 239.

It is a settled rule of construction that the word "surviving," occurring in a settlement in a will, should be referred to the period appointed by that settlement for the payment or distribution of the subject-matter of the gift, and, in the event of such a gift, the survivors are to be ascertained in like manner by reference to the period of the payment or distribution. So, where a gift to survivors is preceded by a life or

The word "survivor," used in a will by which a testator devised all his estate to two persons, in trust to take care of and manage the same, and declared that the trust should continue for 10 years after his death and no longer, and which then provided that at the end of the 10 years all of the estate then remaining and the income thereof should be distributed and vest in his three sons, naming them, and their heirs, and, in case either of the said three sons should die leaving no issue of their bodies, then the devise should go to the survivor of them, refers to the period when the trust ceases, and not to the time of the death of the testator. Blanchard v. Maynard, 103 Ill. 60, 66.

Where an estate is granted to persons described as "survivors," it does not vest until the time designated for the enjoyment of the estate, and the word "survivors" has in such case reference to that period. Cheney v. Teese, 108 Ill. 473, 482.

In a will by which testator gave to each of his daughters £5,000, the interest to be paid to such daughters for life, and if they had children the principal to be divided among them if they should attain 21, and if a daughter did not have children it was to be divided among her "surviving sisters," the quoted phrase meant such sisters as should survive children of another sister who died under 21, and not merely those who survived the mother of such children. Carver v. Burgess, 31 Eng. Law & Eq. 529.

The word "survivor," where an estate is by will conveyed to executors as executors, and the trust to them is in their official capacity, with a power surviving to the sole executor, means those who have accepted the trust. Herrick v. Carpenter, 52 N. W. 747, 749, 92 Mich. 440.

By his will testator gave his widow certain property for life, and three unmarried daughters were given a certain sum each; it being provided that if either of the daughters should die before marriage her portion should go to the survivors, and that if there should be any increase in the property it should be divided among testator's children and grandchildren. Other specific devises were made. Held, that the word "survivors" did not mean all of the children of testator surviving at the death of one of the daughters, but referred only to the unmarried daughters. Dodge v. Sherwood, 75 S. W. 417, 419, 176 Mo. 33.

The term "survivor," as used in a will whereby a testator devised to each of his

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SURVIVE SURVIVING SURVIVOR

As creating executory devise.

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," imports the idea of the longest liver, provided the other daughter should leave no children behind her, that is, none living at the time of her death; for, if she had left a child, that child or those claiming under it must have taken, but, as there was none living at her death, then she who should survive was the person to take. This, then, is not a limitation depending on a remote, but a very limited, contingency. One which was to happen in a very short period, during the life of a person then living, cannot be called a limitation after an indefinite failure of issue to a person not then in being. Keating v. Reynolds (S. C.) 1 Bay, 80, 87.

"Survivors" is a flexible term, and when used in a will, as applied to testator's children, does not necessarily mean surviving children only, but may, when molded by the context and spirit of the will, consistently with the literal import, comprehend all his surviving descendants who were intended to be beneficiaries. Harris v. Berry, 70 Ky. (7 Bush) 113. When a bequest is made to one of several children dying without issue, the testator should be understood to mean by “survivor" his other children, unless they also had died without issue, because his presumed object was that all who should have issue should be entitled to an equal interest, and that nothing but death without issue should disturb that equality. Graves v. Spurr, 17 Ky. Law Rep. 411, 413, 31 S. W. 483, 484, 485, 97 Ky. 651 (citing Birney v. Richardson, 35 Ky. [5 Dana] 429).

Where a testator directed his residuary estate to be equally divided among his brothers and sisters by name, or their "survivors," and he knew they had families, the intent was to give to the survivors of each -not to the survivors of the brothers and sisters, but to each individual and their survivors; and it was intended that each one

named should take a part, and that that part, when the devisee was dead, should go to his or her family. Appeal of Stoner, 2 Pa. (2 Barr) 428, 431, 45 Am. Dec. 608.

As importing definite failure of issue.

A testator by his will gave to his two sons all his lands, live stock, bonds, etc., to be equally divided between them, and provided that, if either of his said sons should die without any lawful heirs of their own, then the share of him who may first die shall accrue to the survivor and his heirs. The will created an estate in fee simple in the sons, and by reason of the word "survivor" the share of the one who first died without issue passed over to the other son

Under a will whereby the testator bequeathed to two sons, to them and their heirs and assigns, certain property, to be equally divided between them when they should arrive at the age of 21 years, and provided that, if either of them should die before arriving at that age, then the part or share of the one dying should go to the "survivor" of them, an estate in fee simple was created in the devisees, but by the clause providing for the passing of the property to the survivor the estate by reason of the word "survivor" was reduced to an executory devise. Howell v. Howell, 20 N. J. Law (Spencer) 411, 420.

As live after.

The primary meaning of the phrase "who shall survive me," as used in a will, taken by itself, is, of course, perfectly obvious, signifying the person or persons mentioned who shall be living at the time of the death of the testator. The primary meaning of the word "survive" is to live beyond the life or extent of, or to outlive; but it also has a secondary meaning, namely, to live after, and as used in the phrase, "if either of my said sons should die without leaving a child which shall survive him," the testator could not have used the word "survive" in its ordinary acceptation, but in the sense of "who shall live after him." There has been much discussion in the books as to the proper construction of the words "survive" and "survivor," when used in wills; but it is now settled by numerous decisions that the same rule of construction others, namely, that they shall be taken in will be applied to these words as to any their literal and ordinary import, unless there is something in the context or attending circumstances which shows that they were used in a different sense. Bailey v. Brown, 36 Atl. 581, 586, 19 R. I. 669.

The word "survive," in its popular signification, may mean "overliving a specified individual," or "living beyond a specified event," or it may mean "still living," or "living at some designated period of time." As used in a devise to the testator's daughter and her heirs generally, but if she should die without issue living at her death, “or if her child or children surviving her should die before arriving at the age of 21 years, then over" to the testator's other children, the words "surviving her" mean simply what would otherwise have been implied from the limitation itself, "if she died leaving issue." Jordan v. Roach, 32 Miss. 481, 613.

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 afterwards born and who survive a future con

tingency. In re Malseed's Estate, 15 Wkly.

Notes Cas. 368.

"Survive," as used in a will declaring that, in case B. and C. should die leaving no heirs of either of their bodies, then all the lands, etc., "before given to them shall be and remain to the children of my brethren and sister who shall then survive," should not be construed to confine the dying without issue to the time of the death, on the ground that the word "survive" intends that the person who is to take should be living with the testator and outlive the rest of the children. Hawley v. Inhabitants of Northampton, 8 Mass. 3, 31, 5 Am. Dec. 66.

The word "survivor," as used in a will by which the testator gave the residue, after payment of all debts, to his executors and to the survivor of them, means one who should survive the death of the testator. Forster v. Winfield, 23 N. Y. Supp. 169, 170, 3 Misc. Rep. 435.

"Surviving sons," as used in the clause of a will providing that on the decease of either of testator's three sons, leaving lawful issue, the issue should take, and in default of issue the portion of a deceased son should be paid over to "my surviving sons," requires an actual survival. Hendricks v. Hendricks, 79 N. Y. Supp. 516, 518, 78 App.

Div. 212.

Where a devise or bequest is made to several persons absolutely, the words "survivor or survivors" do not refer often to the date of the testator's death, and, of course, indicate that the property devised or bequeathed is to go to the person or persons who survive the testator. In re Foley, 10 N. Y. Supp. 12, 13, 2 Con. Sur. 298.

As outlive.

In its ordinary, as well as legal sig nification the word "survivor" means one who outlives another; one of two or more persons who lives after the others have deceased. By will a testator bequeathed to three persons, and the survivor of them, all his estate upon certain trusts, which were specified. Only one of the parties named qualified; the other two having declined the trust. The three to whom the bequest was made in trust were named as executors of the will, which provided that no further action should be had in the district court, or other court having jurisdiction of probate matters, than the registration and probating of the will. Under such circumstances the executor who qualified, the others being still

Others synonymous.

There has been much discussion as to

There

the effect of provisions in wills in favor of "survivors." The controversy has been whether the word should have its literal and natural meaning, or whether it should prima facie be construed as equivalent to the word "others," in the absence of circumstances or something in the context showing that it was used in a strictly literal sense. is a line of older cases, as in Wilmot v. Wilmot, 8 Ves. Jr. 10, holding to the latter view. Some eminent judges have also held that the words were convertible terms; but where the word "survivor" has been given the force of "other," thus letting in the issues of a deceased member of a class by inheritance from the parent, it has been usually done, as was the case in Harris v. Berry, 70 Ky. (7 Bush) 114, to avoid some consequences which it was quite certain the testator did not intend. It was necessary, in order to effect an intention appearing upon the entire will. The later cases, however, hold that the word "survivor," when unex

plained by the context, is to be given its natural meaning, and interpreted according to its literal import. As this rule may often defeat the unexpressed intention of the testator, courts readily listen to any argument, drawn from the context or other provisions of the will, showing that "survivor" was used by him as synonymous with "other"; but, unless this appear, it may now be regarded as the settled rule that its literal meaning is to be given to it. Gorham v. Betts, 5 S. W. 465, 466, 86 Ky. 164.

"Survivors," as used in a will providing that on a certain contingency property was to be divided equally among the survivors of my children, was to be taken in its ordinary sense, and not construed to mean "others." The word in a will is to be construed in its natural sense, unless the will itself shows that it was used by the testator in a different sense. Leeming v. Sherratt, 2 Hare, 14, 24.

While it is true that, in order to properly carry out the intention of the testator, the word "survivors" in a will has sometimes been regarded as synonymous with "others." yet it is now established that the same rule of construction will be applied to the word "survivors" as to any other. It will be received in its natural and literal import, unless there is something in the context or attending circumstances tending to a different conclusion. To construe it as an equivalent to "other" is a construction which the court will sometimes be compelled to adopt, in order to accomplish the intention

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which appears on the whole of the will. Anderson v. Brown, 35 Atl. 937, 939, 84 Md. 261.

The word "survivor," in a will, when unexplained by the context, will be construed in its natural sense; but if, when interpreted according to its literal sense, the tendency is to defeat the actual intention of the testator, courts will readily listen to the arguments drawn from the context for reading the word "survivor" as synonymous with the word "other." Duryea v. Duryea,

85 Ill. 41.

The word "survivors" held to be the equivalent of "others" in a will. In re Devine's Estate, 48 Atl. 1072, 1075, 199 Pa. 250; Appeal of Nichols (Pa.) 48 Atl. 1072, 1075; Appeal of Bruner, Id.; Appeal of Williams, Id.

and that the words "survivor" and "survivors" should be construed to mean "other" and "others," so that, on the death of the sole surviving child, the share of a child previously deceased without issue should be equally divided among all of testator's grandchildren then living per stirpes. Cooper v. Cooper (Del.) 31 Atl. 1043, 1046, 7 Houst. 488.

"Survivors," as used in a deed conveying property to trustees for the benefit of the grantor's wife for her life, and providing that after her death the property should be

held in trust for the benefit and behoof of her children by the grantor, or the survivors of them which shall be living at the time of her decease, includes both the children of the grantor and their issue, and is not confined to children alone, and all the children of the grantor, as well as all the children of any deceased child, stand on the same foot

It is said in Lapsley v. Lapsley, 9 Pa. ing. Kemp v. Bradford, 61 Md. 330, 333.

(9 Barr) 130, where testator gave certain realty to his four sons for life, but provided that, if any of "my sons shall die without issue, their portions shall be divided equally between the surviving brothers," that the word "survivors" in such cases means "others." In re Bacon's Estate, 52 Atl. 135, 139, 202 Pa. 535.

"Survivors," as used by a testatrix in giving all her real and personal estate to her daughter and "her heirs, and half the navigation money for her natural life, and, In case she dies without issue, all to be divided between" four of the nephews and nieces, who are named, the part of one only for life, and to be divided between the survivors, means "others." Barlow v. Salter, 17 Ves. 478, 482.

"Surviving children," as used in a wili providing for the payment of the income and interest from the residue of his estate to his daughters and son, naming them, in equal proportion during their natural lives, and at the death of either of them without lawful issue his or her share to continue to be a part of the residuary estate, the income of which should be equally divided among the "surviving children," should be construed to mean "the others"-that is, the testator's own children living, and the children of his deceased children-and that he intended by his residuary bequest to put each branch of his family on a footing of exact equality, giving life interests to his children and the capital to their respective issue, per stirpes. "Where property is given to a plurality of persons, with a devise or bequest over, in certain events, of the shares of dying objects to the survivors, the word 'sur

those who die before as those who survive the objects in question are entitled, provid

vivors' is construed 'others,' so that as well

Testator devised to each of his five children certain land for life, remainder to the children of each in tail, the share of any child dying without issue that could take as his immediate devisees to go to "the survivor or survivors" of his children during ed, of course, that their death did not haptheir natural lives, and after their decease pen under circumstances which subjected to the children of such "survivor or sur- their shares to the operation of the limita

vivors,

forever (and) of any of my children who may be dead, leaving children claiming their parent's share, to be equally divided between (the child or children of) my surviving child or children as aforesaid, and the child or children" of "any that may be dead, claiming the right of their parent or parents, share and share alike"; and then followed a devise over in case all his children should die without descendants. The next item declared an intention to create The word "survivor," in the absence of cross-remainders among his children, so that any explanation by a testator in any part 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

tion over." Carter v. Bloodgood's Ex'rs (N. Y.) 3 Sandf. Ch. 193, 299.

The word "survivors," in a devise, "if either of the aforesaid legatees die without issue, the portion which she or they were entitled to is to go to the survivors equally," means the surviving devisees, to the exclusion of the children of a deceased devisee. Best v. Conn, 73 Ky. (10 Bush) 36.

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 proviso. 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 trustees, to be divided, after the death of persons who had life interests in it, among A., B., C., D., and E., in equal shares, and directed that, if any of them should die without issue before their respective shares should become payable, the share of the one so dying should be equally divided among the survivor and survivors of them, the words "survivor and survivors" were to be construed in their natural sense, and not as equivalent to "other and others"; so that, A. having died leaving issue who were living at the time fixed for the distribution of the fund, and B. having died leaving a son, who died without issue before the period of distribution, and C. having died without issue before the period of distribution, no part of the shares of B. and C. went over to A.'s personal representative. Crowder v. Stone, 3 Russ. Ch. 217, 224.

"Survivors," as used in a will devising testator's residuary estate to his children equally, and providing that, in case of death, the share of the deceased child should go to his or her children, if any, and, in case of Iailure of issue, be divided among the survivors of the testator's children, equally, means the "survivors" absolutely and literally, and should not be construed as meaning "others." Leeming v. Sherratt, 2 Hare, 14, 15.

The phrase "children or survivors of them," in a will in which testator gave all his estate to his wife for life, and directed that all remaining after her death should be divided by his executors equally among his children or the survivors of them, was construed not to include a child of one of testator's children who had died prior to the death of testator's wife. Sinton v. Boyd, 19 Ohio St. 30, 36, 2 Am. Rep. 369.

The word "survivor," as used in a will providing that the above devises "to my children, being to them, their heirs and assigns, and, if any die without issue, then to the survivor or survivors of them in equal shares," did not include an heir of one of the children dying, but, on the death of one of the three without heirs, confines the survivorship to such children. Guernsey v. Guernsey, 36 N. Y. 267.

Testator left a remainder to be divided in equal shares, the income to be applied to the use of his children surviving him during the life of each severally, and on the death of each child to pay over the capital of the share of such child to his or her descendants,

A testatrix bequeathed a sum upon trust for her daughter A. for life, and after her death for her children, with a gift over, in default of children, to "the other or others of them, the said B., C., D., and E., equally to be divided between them." Held, that the words "other or others" could not mean surviving children at the death of the life tenant, since that construction would entirely include the children of a daughter who died during the lifetime of a tenant for life, and hence the share which belonged to A. during her life should be divided into fourths and given to B., C., D., and E. In re Hagen's Trusts, 46 Law J. Ch. 665.

SURVIVABILITY.

"Assignability" and "survivability" of things in action are convertible terms. Tanas v. Municipal Gas Co., 84 N. Y. Supp. 1053, 1058, 88 App. Div. 251.

SURVIVING HUSBAND.

"Surviving husband," as used in statutes and legal phraseology, has the same force and meaning and the same legal effect as "widower." In re Ray's Estate, 35 N. Y. Supp. 481, 482, 13 Misc. Rep. 480.

SURVIVING MEMBER.

"Surviving members," as used in Act May 18, 1887, providing that insurance companies on the assessment plan shall deposit with the Auditor a copy of its constitution and by-laws, which must show that all indemnities to beneficiaries are in the main provided for by assessments on all “surviving members," are the antithesis of deceased, and not of lapsed, members. A surviv ing member is one who has always paid up

his assessments and is still a member of the company. Surviving members are those who who have continued to be members of the company by keeping up their policies and paying their assessments. Mutual Ben. Life Ins. Co. v. Marye, 8 S. E. 481, 482, 85 Va. 643.

SURVIVING PARTNER.

As personal representative, see "Personal Representative."

SURVIVING WIFE.

A woman who has been divorced cannot be deemed a "surviving wife"; but, unless there has been a judicial decree dissolving the marriage relation, a wife who outlives

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