In the instant case there is no 'survivorship' or 'gift over' clause in case a remainderman should die without issue. To hold that a share of a nephew or niece who died without issue is to be divested, would result in that share not going to the survivors, but that the testator died intestate as to that share. It is well recognized that the Courts will not presume that a testator intended to provide for an intestacy in his will where a testamentary scheme can be logically deduced. Here the testator knew that one of his nephews had already died leaving three children; he undoubtedly realized that before the death of the life tenant some of his nephews and nieces might die leaving children and it certainly was not outside the realm of possibility that he also realized that before the death of the life tenant some of his nephews and nieces might die childless. Under these circumstances, it cannot be said that the testator died intestate as to any part of his residuary estate.
Under the provisions of the Sullivan will, there is no way in which a child of a child of a deceased nephew or niece could receive any interest in the estate because, in this jurisdiction, the words 'child' or 'children' in a will are construed to include only immediate offspring and not 'issue' or 'descendants' unless the context of the will shows that the testator's intention is clearly and obviously otherwise. Rodler v. Union Trust Co., 73 App.D.C. 350, 119 F.2d 454. In that case the Court said: 'It is settled that the word 'children' used in a Will to express kinship, includes only immediate offspring unless there is evidence that the testator intended a broader sense.' Citing Allen v. Reed, 57 App.D.C. 78, 17 F.2d 666; Billingsley v. Bradley, 166 Md. 412, 171 A. 351, 104 A.L.R. 274; In re Schaufele's Will, 252 N.Y. 65, 168 N.E. 831; Bushman v. Fraser, 322 Ill. 579, 153 N.E. 611.
Of the seven of the ten deceased nephews and nieces leaving surviving children, two died leaving two or more children, one of whom subsequently died before the death of the life tenant. This Court, having decided that the proportionate share of each deceased child has vested, it follows that his or her estate should take the same equal share as the surviving child or children should take, as provided in Section 816 of Title 45 of the D.C. Code, as follows: 'Every estate granted or devised to two or more persons in their own right, including estates created or devised to husband and wife, shall be a tenancy in common, unless expressly declared to be a joint tenancy * * * .' Prior to the enactment by the Congress of the United States of the Code of Laws for the District of Columbia, which took effect on January 1, 1902, there was in force in the District of Columbia a common law rule that a conveyance or devise to two or more persons, whether as a class or by name, without sufficient indication in the instrument of intention that they were to hold in severalty, should be construed as creating a joint tenancy and not a tenancy in common. Noyes v. Parker, 68 App.D.C. 13, 92 F.2d 562. Therefore, had the trust estate under the Sullivan will been created prior to January 1, 1902, the common law would have given the deceased child's share to the survivor or survivors of the children, but under the Code provision enacted in 1902, above quoted, the children take as tenants in common.
The Court concludes, therefore, (1) that divestiture occurs only on death leaving issue and that there is no divestiture by death along without issue; that (a) where remaindermen died leaving children, the remainder interests are divested and their children are substituted in interest, and (b) where remaindermen died without children, their interests are not subject to divestiture but pass to their respective estates; and (2) where a child of a deceased nephew or niece has died, the estate of that child is entitled to its proportionate share.
Under this scheme of distribution, (a) the fifteen living nephews and nieces of the testator are each entitled to one-twenty-fifth (1/25th) share of the residuary estate; (b) the children of seven deceased nephews and nieces are entitled to their respective parent's shares; and (c) the estates of three deceased nephews and nieces, who died without children, are each entitled to one-twenty-fifth (1/25th) share of the residuary estate.
While counsel for both sides concede and the defendants answering admit that the above-described defendants constitute all possible beneficiaries under the uill of the testator, nevertheless, no evidence having been offered on this point, the Court will refer this matter to the Auditor to determine factually the proper persons and the correct amount each shall receive from the said trust pursuant to the scheme of distribution as heretofore set forth and to determine the amount of the fee to be allowed the plaintiff, as trustee, upon final distribution, and the fee to be allowed its counsel of record for legal services rendered.
Counsel for plaintiff will prepare the appropriate orders consistent with this opinion.
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