and then to the son. In case the son should die without leaving lawful issue, the whole of the estate after the wife's death was to pass and descent to the testator's heirs at law. The son, Fenton, died after his father's death, but during his mother's lifetime. He left no issue. The court held that his remainder was divested by virtue of this circumstance. It will be observed that the situation presented in that case was the converse of that encountered in Pyne v. Pyne, supra, and American Security & Trust Co. v. Sullivan, supra. In Central Dispensary and Emergency Hospital v. Saunders, supra, the contingency, i.e., death without issue, on which the remainder was to become divested, actually occurred. In Pyne v. Pyne, the contingency, i.e., death leaving a descendant, did not arise and the remainder was not divested. A parallel situation was confronted in the Sullivan case.
Similar results have been reached in other jurisdictions. Thus, in Gibbens v. Gibbens, 140 Mass. 102, at page 103, 3 N.E. 1, 2, 54 Am.Rep. 453, the will contained the following provision:
'At the decease of my wife, all my estate, real and personal, shall go to and be equally divided among my children; the issue of a deceased child standing in the place of the parent.'
The court reached the conclusion that each child took a vested remainder. It was argued that because of the clause -- 'the issue of a deceased child standing in the place of the parent' -- the interests of the children constituted contingent rather than vested remainders. This contention was overruled. Among the authorities that the court cited were the decisions of the Supreme Court of the United States in Doe v. Considine, and McArthur v. Scott, supra.
In Re Weir's Estate, 307 Pa. 461, 161 A. 730, 731, the testator created a trust fund for the benefit of his wife for life and at her death, to his two daughters 'or their living children'. The court held that each of the daughters took a vested remainder, liable to be divested only if she died leaving children. One of the daughters died childless during the life of her mother. It was held that her interest had not become divested, but passed to her executor upon her mother's death.
Without prolonging this discussion to an unreasonable length, it may be added that numerous other cases have placed a similar construction on provisions of this type. Among them are Hauptman v. Carpenter, 16 App.D.C. 524, Fields v. Gwynn, 19 App.D.C. 99; and Youn v. Munsey Trust Co., 72 App.D.C. 73, 111 F.2d 514.
There is nothing to the contrary of the foregoing views in Howard v. American Security & Trust Co., App. D.C., 171 F.2d 22. There the testator provided that at the death of his wife, the remainder of his estate should be divided among the children 'then alive' of his deceased brother. The court inferred that it was the testator's intent that the participating beneficiaries should be those persons to whom the description in the will applied as of the date of the death of the life tenant. This ruling was based in large part on the peculiar phraseology of the will. The words 'then alive' indicated that the testator decided that only those children were to share in the distribution who would be living when it took place. This provision is entirely different from those encountered in the authorities that have been reviewed and from that confronted in the instant case.
Reverting to the pertinent provision of the will of Alice Garnett, the remainder was given to the grandchildren of the deceased, or their descendants that shall then be living. The word 'descendants' means lineal issue or lineal heirs in the direct descending line, Strout v. Strout, 117 Me. 357, 361, 104 A. 577; Baker v. Baker, 8 Gray Mass., 101, 118 et seq.; In re Dudley's Will, 168 Misc. 695, 6 N.Y.S.2d 489. This clause is very similar to those construed in the decisions that have been discussed. These authorities inescapably lead to the conclusion that the grandchildren of the testatrix were to receive a vested remainder subject to being divested on only one contingency, namely, in case of death leaving descendants, during the existence of the life estate. If a grandchild died without leaving descendants, no divestiture took place. The class was, of course, subject to open up and let in after-born grandchildren. Aubrey Boykin was, however, the only grandchild of the testatrix living at her death. None was born thereafter. The entire remainder interest was, therefore, vested in him. He died before the termination of the life estate, leaving no issue and, therefore, no descendants. Consequently, the contingency on which the remainder was subject to be divested did not arise. As Aubrey Boykin left no will, his vested interest passed to his heirs. Aubrey Boykin left no descendant, brothers or sisters surviving him. His father had also pre-deceased him. Consequently, his mother, Rita Boykin, became his sole heir, D.C. Code 1901, Secs. 948 and 950. As Rita Boykin left a will, the property passed to the devises named in the residuary clause of her will. See Weir's Estate, 307 Pa. 461, 161 A. 730.
It has been argued that since the testatrix devised to Rita Boykin only a life estate, it would defeat the testamentary plan to permit her to take the remainder in fee simple as well, even though it devolves on her by inheritance from her own son. At first blush there appears to be an element of plausibility in this contention. It overlooks, however, some very weighty circumstances. The will was carefully and skillfully drawn. The testatrix must have been aware of the possible consequences of her testamentary disposition. Likewise, she naturally was familiar with the family situation: that Aubrey was her only grandchild; that because of the age of her children, it was unlikely that any additional grandchildren would be born; that Aubrey was a moron and was not likely to marry and have progeny; and that consequently his mother would probably be his heir, if he predeceased her. She must have had the possible eventualities in contemplation. With a knowledge of all these facts, she made the testamentary disposition here under consideration. To frustrate it by a strained construction would be unwarranted.
Accordingly, the court concludes that the real property involved in the clause of the will here in controversy has passed to the devisees named in the residuary clause of the will of Rite Boykin.
Counsel will submit proposed findings of fact and conclusions of law and proposed form of judgment in accordance with the foregoing opinion.
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