the will, and has all along been under misapprehension as to her rights, she will not be held to have made a conclusive election, even after the lapse of five years, but may still claim her dower.73 33. The widow's right of election under the will of her husband is a personal right, and is not transmissible by descent.74 34. It seems to be the settled doctrine of courts of equity everywhere, not to require a party to choose between opposing interests until they are in such a state as to enable him to see on which side his interest lies.75 The devise of "all my real and personal estate . . . . to be divided among my wife and children, share and share alike," does not require the wife to waive her dower, as the words used refer only to the husband's interest.76 And an election in any case is not binding, unless made with full knowledge.77 35. Many of the states contain provisions for the widow making her election whether to accept or renounce the provisions made for her in her husband's will, within a limited time, and upon failure to do so, providing that she shall only be entitled to such provision as such will makes for her. But in such cases it has been considered that such statutory provision does not apply to a case where no provision is made in the will 78 for the widow. There could, of course, be no occasion to renounce the provision of the will in such a case. 73 Dixon v. McCue, 14 Gratt. 540. The presumption in Alabama seems to be, that a provision for the widow shall be considered in lieu of dower, unless it clearly appears from the will to have been intended as an addition to her right of dower. " Welch v. Anderson, 28 Miss. (7 Jones,) 293. 75 Dunlap v. Ingram, 4 Jones, Eq. 178. 76 Carroll v. Carroll, 20 Texas R. 731. "Wells v. Robinson, 13 Cal. R. 133. See also Kyle v. Taylor, 2 Met. (Ky.) R. 47. 18 Roberts v. Roberts, 34 Miss. R. 322. 36. It was held in Pennsylvania,79 that where the widow devised her late husband's estate, one half to his brothers and sisters, and the children of such as had deceased, and the other half to her own brothers and sisters, and the children of such as had deceased, she having in fact no power to dispose of the estate, the very persons to whom she had devised one half of it being entitled to hold the whole by inheritance from her husband, that if they should elect to take under the will, such election would confirm the devise of the other half of the estate, and also the title of a purchaser under the widow, she having devised the purchase-money in the same manner above stated. And where the testator had given his wife, by will, real and personal estate "in lieu of her dower, or one half" of his estate, she is not entitled to a share in the residue, which he directed to be divided "among the whole of his heirs already named " in the will," proportioned to the amounts given to each in the body" of the will.80 1. The question how far "survivor" may be held equivalent to "other." 2, and n. 1. The rule now seems to be that the word shall have the same natural construction as any other word. 3. This view confirmed by the opinion of Lord Eldon. 4. Shares once vested by survivorship will not so vest again, except by express words. 5. The foregoing propositions illustrated by case of Crowder v. Stone. 6. The comments of Lord Lyndhurst in regard to the construction of "survivor." 7. This class of cases seems to turn a good deal upon the question of vesting. 8, and n. 13. The case of Doe d. v. Wainewright and others considered with reference to cross remainders. 9. The more recent cases incline to hold the word "survivor" to its natural import, unless some other purpose is very evident. 79 Gable's Exrs. v. Daub, 40 Penn. St. 217. 10. No rule is deducible from the cases. 11. Sir James Wigram held it could only be otherwise held to escape consequences which it was very obvious the testator could not have intended. 12. Where the gift over is dependent upon the same event happening to all the prior donees, "survivor "must generally have the force of "other." 13. The courts still resort to this construction, to carry out the clear intent of the testator. 14. The general nature of the provisions of the will may aid in reaching the sense of the word "survivor." 15. Where the primary donees are specified the same is made more obvious. 16. "Survivor" will not be read as other, if the gift over will thus become void for remoteness. 17. This is a natural misapplication of language, but one to be studiously avoided. 18. The words, of survivorship, will ordinarily be referred to the period of distribution. § 70. 1. THERE has been so much discussion upon the force and effect of provisions in wills and deeds, for estates created in favor of" survivors," that it seems improper not to give some, although our space will allow us to give but a brief, summary of the decisions affecting the question. The great controversy seems to have been, whether the word "survivors was to have its natural and literal force and construction, or be, prima facie, held equivalent to the word "other," and so construed in all cases, unless there was something in the context or in the circumstances, to show that it was intended to be received in a strictly literal sense.1 2. But it seems to be now established, by numerous decisions, that the same rule of construction will be applied to the word 66 survivors as to any other. It will be received in its natural and literal import, unless there is something in the context or 1 Barlow v. Salter, 17 Vesey, 479. Sir William Grant, M. R., bere treats it as matter of course to construe the word "survivors" as synonymous with " others," simply because that construction best conformed to the general sense of the clause, making all its provisions operative and reasonable. Mr. Jarman understands it to have been assumed, as the general rule, that "survivors” and "others" were convertible terms, not only in the case just cited, but "on more than one occasion " by " eminent judges." attending circumstances tending to a different conclusion.2 Thus in Ferguson v. Dunbar, Lord Chancellor Thurlow said, that although it was one of those cases in which he had the mortification to see that it was most probably the intention of the testator to have the share of the person dying without issue go to the other children and their respective heirs, in case of the decease of any, this could not be carried into effect without too great a departure from the language of the will. For although the testator meant by the use of the term "survivors" to include the children of deceased children, yet "not having said so, but limited such share to the survivors or survivor,' he must so declare." And a similar construction was adopted by Sir R. P. Arden, M. R., in Milsom v. Awdry.1 3. This question is discussed by Lord Eldon, Chancellor, in a later case, and the construction of the word "survivors" as equivalent to "others" declared to be a "forced construction of the term," and to have been adopted by the courts, with a view to admit after-born children to a participation of the devise over, upon the presumption that such must have been the intention of the testator; but that construction was held to be an "unnatural" one, and to be excluded in that particular case, upon the ground that the legacy, which was mere personalty, created a vested interest in the children existing at the decease of the testator. 4. It seems to have been early adopted as a rule of construction, in regard to shares which had once vested by survivorship, that they should not so vest again, unless by force of express words to that effect. This rule, although an arbitrary one, and one that Lord Hardwicke is said, in ex parte West, to have 2 2 Jarman, (ed. 1861,) 648. 3 3 Br. C. C. 469, and n. 5 Vesey, 465. See also Wollen v. Andrews, 9 J. B. Moo. 248; s. c. 2 Bing. 126. Davidson v. Dallas, 14 Vesey, 576. • Ex parte West, 1 Br. C. C. 575; s. c. 1 Cox, P. Wms. 275, 276 in note. disapproved, in Pain v. Benson, and to have sought to escape from by finding a distinction which Lord Thurlow did not regard as sound, has nevertheless maintained its footing in modern days.8 5. The case of Crowder v. Stone illustrates the foregoing points very fully. The testator gave stock to trustees to be divided, after the death of two persons who had a life interest in it, among A, B, C, D and E, in equal shares; and he directed that if any of them should die without issue, before their shares should become payable, the share of such person or persons should go to, and be equally divided among, the survivor or survivors of them. A died leaving issue, who were living at the time of distribution; then B died leaving a son who died without issue, before the time of distribution. Shortly afterwards and before the time of distribution C died without issue. It was held that B's personal representative was not entitled to any portion of the fund, and that one third of B's share, which on the failure of her issue survived to C, did not, on C's death, survive to the other legatees, but was transmitted to her personal representative; that the words "survivor or survivors " were to be construed in their natural sense, and not as equivalent to "other or others." So that no part of the shares of B and C went over to A's personal representative. 6. In the foregoing case Lord Chancellor Lyndhurst said, in regard to it having sometimes been held that "survivor" shall be construed as equivalent to "other":"It is a construction which the court may sometimes be compelled to adopt, in order to accomplish the intention which appears upon the whole will." But his lordship quoted with approbation the language of Lord Eldon, already referred to, wherein he contrasts that construction with what he calls the "natural meaning" of the terms. And 7 3 Atk. 78. * Lord Lyndhurst, Chancellor, in Crowder v. Stone, 3 Russ. 217. 93 Russ. 217. |