the entire sentence is the word 'income', which precedes the clause above quoted. The pertinent portions of the provision are: 'the income thereof * * * shall be equally divided between my two daughters * * * and in the event of the death of either or both, to the use and benefit of their respective child or children.' 'Income' is the subject matter of the disposition, both in the first and second clauses just quoted.
In construing a will, however, the court is not necessarily bound by its strict literal meaning. It is the duty and function of the court to endeavor to effectuate the intention of the testator insofar as it can be ascertained from the instrument itself. In so doing the court may depart from the precise literal significance of the phraseology used by him. In order to achieve this end, words that are clearly surplusage may be disregarded and words not in the document may be inserted, Walker v. Thomas, 64 App.D.C. 148, 75 F.2d 667, 99 A.L.R. 713; Farrar v. Bingham, 68 App.D.C. 93, 93 F.2d 252; Evans v. Ockershausen, 69 App.D.C. 285, 290 et seq., 100 F.2d 695, 128 A.L.R. 177; Pyne v. Pyne, 81 U.S.App.D.C. 11, 154 F.2d 297.
In Farrar v. Bingham, supra, Mr. Chief Justice Groner observed (68 App.D.C.at page 95, 93 F.2d at page 254), that it is the duty of the court if possible to give effect to the intent of the testator. He added that 'in order to reach this end words may be supplied and omitted and sentences transposed.'
In Walker v. Thomas, supra, 64 App.D.C.at page 149, 75 F.2d at page 668, 99 A.L.R. 713, Mr. Chief Justice Groner summarized the applicable principles as follows:
'The law in this jurisdiction, as well as in all the states of the United States, is that the intention of the testator is the basic and fundamental rule in the construction of wills, and the intention should be determined by construction of the whole will and not from detached paragraphs; and where the intention is apparent, it should be given effect -- and this is true -- even though to do so involves the rejection of the literal meaning of particular words.'
If paragraph Fourth should be construed literally, and the last clause were to be interpreted as giving to the grandchildren only the income for life, there would be no disposition of the remainder in fee simple, and an intestacy would result upon the death of the grandchildren. Manifestly, the testator could not have intended such a frustration. Moreover, it is well settled that incase of doubt the court will adopt a construction which would avoid an intestacy. Accordingly, the court is of the opinion that the last clause of paragraph Fourth should read as though it were phrased as follows:
' * * * and in the event of the death of either or both, the remainder to the use and benefit of their respective child or children.'
In other words, to carry out the obvious intent of the testator it is necessary to insert the words 'the remainder' in the last clause of paragraph Fourth.
It is obvious upon an examination of the entire will that it was the natural desire and the manifest intention of the testator to create a life estate for his widow, to be followed by life estates for his two daughters, and that upon the death of the two daughters, the property should pass to the grandchildren. It is not reasonable to assume that he contemplated the creation of life estates for his grandchildren following the life estates to his daughters, and that upon the death of the grandchildren there should be an intestacy. His intention is accentuated by paragraph Fifth, in which he made provision for the contingency of both daughters dying without descendants. In that event, and only in that event, the estate was to be diverted to a collateral line.
There is another reason which would lead the court to place the foregoing interpretation on paragraph Fourth. If the will should be interpreted as creating life estates for the grandchildren, instead of giving them the corpus in fee simple, the provision would violate the Rule Against Perpetuities as well as the rule against unlawful restraints on alienation. Under the Rule Against Perpetuities an estate may vest after any number of lives in being and 21 years, but no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest, Gray on Rule Against Perpetuities (4th Ed.), Sections 190, 201, 216, 217; Restatement of the Law of Property, Section 374; Burdick v. Burdick, D.C., 33 F.Supp. 921. A life estate left to a class consisting of persons in being, but which may open and let in other members who are not in being at the time of the testator's death, would be obnoxious to the Rule Against Perpetuities. This is due to the fact that under such circumstances the vesting might be postponed beyond lives in being and 21 years, Gray, Rule Against Perpetuities (4th Ed.) Section 205.2; 11 Columbia Law Review 270. In this case the three grandchildren were alive at the time of the testator's death. It is entirely conceivable, however, that other grandchildren might have been born subsequently to that date and, therefore, there would have been a possibility as of the date of the testator's death that the vesting of the fee simple might have been postponed beyond lives in being, if the grandchildren were to take only a life estate.
The literal construction would also be repugnant to the prohibition against unlawful suspension of alienation. In the District of Columbia, this principle has been enacted into statute, which reads as follows, D.C. Code 1940, Sec. 45 -- 102:
' * * * every future estate * * * shall be void in its creation which shall suspend, or may by possibility suspend, the power of absolute alienation of the property, so that there shall be no person or persons in being by whom an absolute fee in the same, in possession, can be conveyed, for a longer period than during the continuance of not more than one or more lives in being and twenty-one years thereafter.'
For the reasons just stated if the testator created life estates for the benefit of the grandchildren, it would have been possible that for a longer period than lives in being and 21 years thereafter there might have been no person or persons by whom an absolute fee could have been conveyed. Naturally, if a will is capable of two constructions, one legal and the other bad for remoteness or for illegal suspension of alienation, it is a fair presumption that the testator intended to create a valid disposition. Gray, Id., Sec. 633. These considerations seem to fortify the conclusion reached by the court that the corpus should be divided at this time, and that each of the three grandchildren takes one-third of the corpus in fee simple.
If, however, the literal construction of the will were to be adopted, namely, that only life estates are created for the benefit of the grandchildren, this provision would be void as repugnant to the Rule against Perpetuities and violative of the rule against unlawful restraints on alienation. The reasons for this conclusion have already been indicated. In such an eventuality there would be an intestacy. It happens, however, that the three grandchildren are also the heirs at law and next of kin of the testator, and would take by intestacy if they did not take under the will.
The court, therefore, concludes that the corpus should be divided at this time and that each of the three grandchildren, -- Susan Cockrell, Fulton Lewis, Jr., and Millard Lewis -- , should receive one-third of the corpus in fee simple.
Counsel will submit proposed findings of fact and conclusions of law, and a proposed form of judgment.
© 1992-2004 VersusLaw Inc.