Chapter XVI: Section 5: The Person Who May Take

The only person generally disqualified to receive a legacy is the witness to a will. The law has thought fit to guard a deceased from all imposition, and it is thought if a person took any beneficial interest under a will to which he was one of the witnesses, he could not be a disinterested person to attest its due execution.

In New York, he is disqualified, if such will cannot be proved without his testimony;[183] and, in a case on this head, Caw v. Robertson,[184] where there were _three_ witnesses to the will, each of whom took legacies under it, the Surrogate called the first two, whose names appeared first, which were sufficient, and omitted calling the third. It was decided that he only became entitled to the legacy, as the will could be proved without his testimony.

An executor is not disqualified from receiving a legacy; but in his case, it seems, it will not carry interest.[185]

In wills, legatees are sometimes designated under a general name or class, and a difficulty often arises to determine what individuals shall be included in such a designation. Where a testator uses such general terms, without defining or limiting them, they have a meaning given them by the general rules of construction in law. Indeed, the testator's intention may be frustrated by using certain terms, which may appear to him to include or exclude certain individuals in his bounty, but which may be so enlarged or restricted by the rules of law as to defeat their object. As in the instance where a lady, dying, and intending to give her personal wearing apparel to her servant maid, bequeathed to her _all her personalty_, which under the rules of law meant all her personal estate, which was valued at $60,000, and which under such a term must necessarily go to the servant.

In general, no rule is better settled than that legatees must answer the description and character given them in the will, but it will presently appear, from the cases, that there are many important exceptions to it.

We shall refer to some of these general names or classes, sometimes met with in a will, by which individuals belonging to such classes become entitled to a legacy.

When a testator leaves a legacy to "children,"[186] it is a general rule, that those within that designation _at the time of the testator's death_ become entitled; but if, from the expressions and context of the will, it is ascertained that he intended only those who answered that description _at the date of the instrument_, such intention will be observed.[187] A court of equity, however, is careful that a liberal construction be placed upon such a term, and always, if possible, will hold that it shall include children in existence at the death of the testator, and especially if the testator stood in _loco parentis_ to the legatees.[188]

The general rule, it is claimed in Collin v. Collin,[189] is, that in a will of personal estate the testator is presumed to speak in reference to the time of his death, and not to any previous or subsequent period.

A child in _ventre sa mere_, at the time of the testator's death, is held to be in _esse_, if it is afterwards born alive, and to be equally entitled as those children who were born in the lifetime of the testator.[190]

If there be a postponement of the division of a legacy given to a class of individuals until a certain time after the testator's death, every one who comes under the description at the time when the distribution is made will be entitled, no matter if he was not in _esse_ at the time of the testator's death, unless from the will it be gathered that the testator intended to limit his bounty to those only who were living at the time of his decease.[191]

And where the legacy in the will indicates a present bequest of a fund which is to be distributed at a period subsequent to the death of the testator, those who are in _esse_ at the time of his death will take vested interests in the fund, but subject to open and let in others who may come into being, so as to answer the description and belong to the class at the time appointed for the distribution. Where, however, a fund is bequeathed to children or others as a class, to be divided equally among the persons composing the class, when they arrive at the age of twenty-one, or marriage, only those who shall have been born or begotten when the oldest arrives at the age of twenty-one, or when the first of the class is married, are entitled to share in the fund.[192]

Although, as a general rule, a devise to children, without any other description, means legitimate children, and if the testator has such children, parol evidence cannot be received to show that a different class of persons was intended; still, in these cases, as in all others, it is proper to look into circumstances _dehors_ the will, to see whether there are any persons answering the description of the legatees in the legal sense of the term used; and if it appear that there are not any such persons, it is then allowable to prove the situation of the testator's family, to enable the court to ascertain who were intended by the testator as the object of his bounty. Thus, in Gardner v. Heyer,[193] where the testator died a bachelor, but had for a long time lived and cohabited with M. Smith, by whom he had and left four children, a son and three daughters, who had been by him placed at school and acknowledged as his children, and were generally reputed as such by his friends; and by his will he gave to his son John $10,000, to be paid to him when he arrived at the age of twenty-four, the interest in the meantime to be applied to his maintenance and education; and he also gave to each of his daughters $3,000, payable at the age of twenty-one, and the interest in the meantime to be applied to their education and support; and he directed his executors and trustees to pay $65 to M. Smith, the mother of the children, quarterly, during her life, if she remained single and had no more children; and he devised and bequeathed all the residue of his estate, real and personal, to his executors and trustees, and the survivor of them in fee, in trust, to pay two-thirds of the income thereof to his son John, and one-third to his daughters during their lives, with remainder to their issue; and he gave cross-remainders to the survivors in case any of the children should die without issue; and he also appointed the executors and trustees, guardians of the children during their minority, and earnestly requested that the utmost care should be taken _of their morals and education_. The court declared that there was no doubt as to the legal and equitable rights of the children of M. Smith under the will.

A bequest to an unborn, illegitimate child, the mother being described, is valid, unless the child be pointed out as having a certain father, for then it is void, the bastard being in point of law nobody's child--_filius nullius_.[194]

A bequest by a husband to his "beloved wife," not mentioning her by name, applies exclusively to the individual who answers the description at the date of the will, and is not to be extended to an after taken wife.[195]

A testator was betrothed to a lady, and by a codicil to his will, after mentioning her name, and alluding to his intended marriage with her, he gave £3,000 _to his wife_. Before the marriage he died, and it was held that the lady was entitled to the legacy.[196]

A gift to "my servants," it is thought, will extend to those in testator's service at the date of the will, though they leave it before his death.[197] Redfield prefers to comprise, by such a phrase, only those who are in the testator's service at the time of his decease, no matter whether they were his servants at the time of his making his will or not.[198] The best rule would be not to admit those who entered the testator's service recently before his death, nor those who left before that time, but to hold only those entitled who were in his service when the will was made as well as at his death.

Difficulties sometimes arise from the want of explicitness in pointing out a legatee by a testator, and again from a mistake in naming or designating him. The general rule upon the subject is, that when the name or description of the legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake will not disappoint the bequest. The error may be rectified and the true intention of the testator ascertained in two ways: 1. By the context of the will; 2. To a certain extent by parol evidence.

1. The mistake may be rectified by the context. Thus an error in the _name_ of the legatee may be obviated by the accuracy of his _description_: as where a legacy is given to "my namesake _Thomas_, the second son of my brother," and the testator's brother had no son named Thomas, but his second son is named _William_, there is sufficient certainty in the description to entitle the second son.

And again, where the testator bequeathed to his brother, Cormac Connolly, and to his two sisters, Mary and Ann, a certain residue, and afterwards by a codicil bequeathed as follows: "To my nephew, Cormac Connolly, the son of my brother, Cormac Connolly, the sum of five hundred dollars for his ecclesiastical education, which sum is to be taken from what I have bequeathed to my brother Cormac, and to my sisters Mary and Ann." And it appeared the testator never had a brother named Cormac, but that he had a nephew, Cormac, who was the son of his only surviving brother James, who was pursuing classical studies in Ireland with a view to an ecclesiastical education, and who was the only nephew of that name; it was held that the legatee intended by the testator by the name of his brother, Cormac, was the father of his nephew, Cormac, and that his brother James was the person entitled to share in the residuary estate.[199]

So, an error in the _description_ may be obviated by the certainty of the _name_; as, where a legacy was given to "Charles Millar Standen and Caroline Eliz. Standen, _legitimate_ son and daughter of Charles Standen, now residing with a company of players," and it appeared they were _illegitimate_ children, their claim was nevertheless supported.[200]

The mistake may, to a certain extent, be rectified by parol evidence. The admissibility of parol evidence in these cases has given rise to much discussion; it forms one of the exceptions to the general rule, not to admit parol evidence where a will is void for uncertainty. This is treated of under the _seventh proposition_ of Wigram on Wills,[201] in a very exhaustive manner, and the cases fully examined. We will merely here point out when such evidence is admissible and when it is rejected. The rule is thus laid down: Where the object of a testator's bounty, or the subject of disposition, is described in terms which are applicable indifferently to more than one _person_ or _thing_, evidence is admissible to prove which of the persons or things so described was intended by the testator.

Thus, when a _blank_ is left for the Christian name of the legatee, parol evidence is admissible to supply the omission, as in the case of Price v. Page,[202] in which the testator bequeathed "to ---- Price, the son of ---- Price, the sum of £100." No person but the plaintiff claimed the legacy, and he produced evidence from which it appeared that he was the son of a niece of the testator; that his father and grandfather's names were Price; that the testator had no other relation of that name, and that he had been before frequently the object of the testator's care; that the testator said he had and would provide for the plaintiff. Upon this evidence, Lord Alvanley determined in favor of the claim.

When the omission consists of the _entire_ name of the legatee, parol evidence cannot be admitted to supply the blank; for that would amount to a bequest by oral testimony. Thus, in Winne v. Littleton,[203] A bequeathed all his personal estate to his executor, leaving a blank, and died without naming _any_ person executor. The legacy was adjudged to be void. And in Hunt v. Hort,[204] a woman devised her houses in the city and at Richmond to her niece, dame Margaret Hort, and Richard Baker, her attorney, in trust to sell. She then gave some pictures specifically, and thus proceeded: "My other pictures to become the property of Lady ----." The testatrix then made her niece, Harriet Hunt, her residuary legatee, and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was of opinion that he could not supply the blank by parol evidence, and observed that, where there was only a title given, it was the same as a total blank.

If, however, a legatee be described by initials of his name only, parol evidence may be given to prove his identity. This was done in the case of Abbott v. Massie,[205] where the bequest was: "Pint Silver Mug and all my China to Mrs. G., and £10 for mourning." Mrs. Gregg claimed the legacies, and (the Master having refused to admit testimony) offered to show that she was the person intended. Exception was taken to his ruling, upon which the court declared that he ought to receive evidence to prove who Mrs. G. was.

The principle upon which parol evidence is admitted in these cases is a presumption of possible ignorance in the testator of the Christian name of the legatee, or of his being accustomed to calling a person by the name of Mrs. B, a presumption which, being raised upon the face of the will, may be confirmed and explained by extrinsic evidence. Upon this ground, it is consistent with the established doctrine that such evidence is admissible to remove _latent_ ambiguities, but cannot be admitted to explain _patent_ ambiguities in a will. This is founded on Lord Bacon's well-known maxim: "_Ambiguitas verborum latens verificatione suppletur._"