By her last will and testament, Mrs. Sophia Rhodes provided for
her husband by securing to him the income from one-half her estate,
subject to which the whole was devised and bequeathed to her only
son; in the event of her son's predecease, the entire estate to
trustees in trust for the husband for life, and on his death to the
Young Women's Christian Home; in the event testatrix survived
husband and son, then to the Home. The mother and son survived the
husband, and perished in a shipwreck, going down together. The
estate was claimed by the next of kin of Mrs. Rhodes, by the next
of kin of the son, and by the Young Women's Christian Home.
Held:
(1) That there is no presumption of survivorship in the case of
those who perish by a common disaster, in the absence of proof
tending to show the order in which dissolution took place, and,
actual survivorship being unascertainable, descent and distribution
take the same course as if the deaths had been simultaneous.
(2) Whether by a particular will a condition precedent, a
condition subsequent, or a conditional limitation is imposed is, in
the absence of unmistakable language, matter of construction
arrived at in view of the familiar rules that the intention of the
testator must prevail, and that intestacy should be prevented if
legally possible.
(3) As the state of facts at the time of Mrs. Rhodes' death did
not substantially differ from what the will showed she contemplated
when
Page 187 U. S. 402
it was executed, the interpolation of some phrase covering the
contingency of inability to ascertain survivorship is unnecessary,
and her intention as sufficiently declared on the whole will may be
carried into effect.
(4) The use of the words, "if she survived," instead of the
words, "if they did not survive," is not material, and, on
principle, the estate of Mrs. Rhodes should go as directed as if
she survived her son in the absence of proof to the contrary. The
property remained where it was vested, there being no evidence that
it had been divested.
These are appeals from a decree of the Court of Appeals of the
District of Columbia on a bill of interpleader exhibited in the
Supreme Court of the District by the administrators with the will
annexed of the estate of Sophia Rhodes, deceased. At the conclusion
of the administration, there remained in the hands of the
administrators a fund of $14,891.89 for distribution, which was
claimed by the Young Women's Christian Home, a corporation of the
District of Columbia created by act of Congress, the next or kin of
Sophia Rhodes, and the administrator of the estate of Eugene
Rhodes, deceased, and the interpleader was filed to determine the
rights of the parties.
The will of Sophia Rhodes was executed at Washington, May 10,
1894, and read as follows:
"In the name of the bountiful Giver of all. Amen."
"I. Sophia Rhodes, of the City of Hutchinson, in the State of
Kansas, temporarily residing at Washington, in the District of
Columbia, being now of sound and disposing mind and memory, do
make, publish, and declare this my last will and testament, hereby
revoking all former wills or testamentary dispositions of my
property."
"I now dispose of the property and estate which it has pleased
Almighty God to entrust to me, as follows, viz.:"
"
Imprimis. I will that all my just debts and funeral
expenses shall be paid by my executor hereinafter named, out of the
first money from my estate that shall come into his hands."
"
Item 1. I give, devise and bequeath unto my husband
Oliver Wheeler Rhodes, during his life one-half (1/2) of the income
from all my properties and estate in the next following item of
this last will and testament disposed of, to be paid
Page 187 U. S. 403
over to him from time to time by my executor hereinafter named,
who, for this purpose, shall also act as trustee."
"
Item 2. I now give, devise, and bequeath unto my only
and beloved son, Eugene Rhodes, all my property, real, personal,
and mixed, of whatsoever nature, kind, or description, including
moneys, credits, and evidences of indebtedness of which I may be
possessed at the time of my death, to be his absolutely, to hold
and to dispose of as unto him may seem good and proper, and subject
only to the provisions of item 1 of this last will and
testament."
"
Item 3. In the event of the death of my son, Eugene
Rhodes, before the decease either of myself or of my husband, I
then give, devise, and bequeath all my property, everything I own
on earth, as follows, viz.:"
"1st. I give, devise, and bequeath all my pictures and paintings
to the Young Women's Christian Home, in the City of Washington,
District of Columbia. It is my will that the said pictures and
paintings may, so long as the said home shall exist, be the
ornaments of the said home, with my name as the giver connected
with them during that time."
"2d. All the rest and residue of my property, real, personal,
and mixed, I give, devise, and bequeath to Michael H. Fitch, of
Pueblo, Colorado, to have and to hold, in trust nevertheless, to
invest the same to the best of his knowledge and experience, and to
pay over the rents and profits arising therefrom to my husband,
Oliver Wheeler Rhodes, during his, my said husband's life, and on
the death of my said husband to turn over the said property,
moneys, etc., with whatsoever accumulation thereon may be existing,
to the Young Women's Christian Home, of Washington, in the District
of Columbia, to be the property of the said home absolutely."
"
Item 4. In the event of my becoming the survivor of
both my husband, Oliver Wheeler Rhodes, and of my son, Eugene
Rhodes, I then give, devise, and bequeath all my property, real,
personal, and mixed, of whatsoever nature, kind, or description, to
the Young Women's Christian Home, of the City of Washington, in the
District of Columbia, to have and to hold the same absolutely and
forever, for the good of that institution.
Page 187 U. S. 404
It is my will that my pictures and paintings shall be disposed
of in this event as provided in paragraph 1st, of item 3, of this
last will and testament."
"
Lastly. I hereby constitute and appoint my only son,
Eugene Rhodes, the sole executor and trustee of this my last will
and testament, and it is my will that my said sole executor and
trustee shall administer and execute this last will and testament
without giving bond therefor."
The facts were stipulated, and may be shortly stated thus:
Oliver Wheeler Rhodes died at Washington, January 27, 1895, at
which time his wife, Sophia Rhodes, and their only child, Eugene
Rhodes, were in Heidelberg, Germany. They sailed for home from
Bremen on the steamship
Elbe at three o'clock P.M. on
Tuesday, January 29, 1895. About half-past 5 o'clock the next
morning, the Elbe collided with another steamship, and sank in
about twenty minutes after the collision. Mrs. Rhodes was about
fifty-two years old, corpulent, and short of breath, and her son
was about twenty-three years old, a single man, and rather a good
swimmer. His body came up in a fishing net off the coast of Holland
some six weeks after the collision, but his mother's body was never
recovered. Of the persons who survived the shipwreck, only two had
any knowledge of the mother and son at the time of the disaster.
One of them saw Mrs. Rhodes come out of her cabin just after the
collision with a blanket over her night dress, and some minutes
later saw her son. The other saw the mother and son on deck after
the collision, the son endeavoring to put a shawl around his
mother, and she with her arms thrown around her son's neck. This
person was the last to get into the last boat to leave the ship,
and, when it had gotten some distance away, the ship went down with
a lurch and everyone on board was drowned. He testified that
"both of these parties died together, and, so far as this
affiant was able to learn, after he saw these parties on the deck
clasped in an embrace that would never be loosened until after
death, no one else saw them."
The Supreme Court of the District held that there was no
presumption of survivorship as between the mother and son; that the
will manifested an unmistakable desire to guard
Page 187 U. S. 405
against intestacy, and that the intention of Mrs. Rhodes was
clearly apparent that, if her husband and son should not survive
her so as to receive the property, or if it remained under her
control at the time of her death, it should go absolutely to the
charity she had named, the Young Women's Christian Home, and
decreed accordingly. From this decree Barbara Faul and Andrew
Wasner, next of kin of Mrs. Rhodes, and John L. French,
administrator of Eugence Rhodes, carried the case to the Court of
Appeals of the District, which concurred in the view that there was
no presumption of survivorship as between the testatrix and her
son, but held that, the terms of the will
"vesting the estate in Eugene Rhodes immediately upon
testatrix's death, we agree that it raises a
prima facie
right in the personal representatives of the son, and imposes the
burden upon her next of kin of displacing them by proof of his
mother's survival,"
and that the representatives and next of kin of the son were
entitled to the entire fund. The decree was thereupon reversed, and
the cause remanded to the court below with a direction to enter a
decree in conformity with that conclusion. 18 App.D.C. 9.
Page 187 U. S. 410
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The rule is that there is no presumption of survivorship in the
case of persons who perish by a common disaster, in the absence of
proof tending to show the order of dissolution, and that
circumstances surrounding the calamity of the character appearing
on this record are insufficient to create any presumption on which
the courts can act. The question of actual survivorship is regarded
as unascertainable, and descent and distribution take the same
course as if the deaths had been simultaneous.
Underwood v.
Wing, 4 De Gex M. & G. 633;
Wing v. Angrave, 8
H.L. Cas. 183;
Newell v. Nichols, 12 Hun. 604;
Johnson
v. Merithew, 80 Me. 111;
Cowman v. Rogers, 73 Md.
403;
Russell v. Hallett, 23 Kan. 276;
In re
Willbor, 20 R.I. 126; 1 Greenl. (15th ed.) §§ 29,
30.
Conceding this to be so, the next of kin of Mrs. Rhodes contend
that her estate has passed to them as in case of intestacy, because
it does not appear that the son survived the mother or that the
mother survived the son, and the estate was given to the son only
in the one event, and to the Young Women's Christian Home only in
the other. This view was rejected by the District Supreme Court in
holding that the intention of the testatrix was plain that the
Young Women's Christian Home should take in the event that the
husband and son did not survive her, and should be carried out, and
the Court of Appeals rejected it in holding that the will, by its
terms, vested the
Page 187 U. S. 411
estate in Eugene Rhodes immediately on the testatrix's death,
and that a
prima facie right existed in the personal
representatives of the son, which was not displaces by proof of the
mother's survival.
The cardinal rule is that the intention of the testator
expressed in his will, or clearly deducible therefrom, must prevail
if consistent with the rules of law. And another familiar rule is
that the law prefers a construction which will prevent a partial
intestacy to one that will permit it, if such a construction may
reasonably be given.
Kenaday v. Sinnott, 179
U. S. 616.
In this case, we think it is apparent that Mrs. Rhodes designed
to dispose of her entire property, to provide for her husband by
securing to him for life an income from one-half of her estate, to
provide for her son by leaving him the estate absolutely, subject
to the husband's income, and, if her son died before his father,
that the husband should have the income of the whole estate for his
life, and at his death, the estate should go to the Young Women's
Christian Home. But that, if her husband and son should both be
dead when she died, the estate should go at once to the charitable
institution -- that is to say, that if they did not survive her,
the property on her death was immediately to take that
destination.
But the argument is that the testatrix's wishes cannot be
carried out, inasmuch as it is insisted each of the devises and
bequests was on the express condition of survivorship, and to give
effect to the alleged intention would require the interpolation of
some phrase covering the contingency of inability to ascertain
survivorship, which interpolation would be wholly inadmissible.
This, however, is matter of construction, and if the state of
facts at the time of Mrs. Rhodes' death did not substantially
differ from what the will shows she contemplated when it was
executed, then no interpolation is required, and the property must
go according to the intention necessarily deducible.
The applicable principle is well expressed by Mr. Justice
Page 187 U. S. 412
Gray, then Chief Justice of Massachusetts, in
Metcalf v.
Framingham, 128 Mass. 370.
The case is stated in the headnotes thus:
"A testator bequeathed personal property in trust for the
benefit of his wife's sister and her husband during their lives, as
follows: during her life, to pay the net income to her
semi-annually; in case she should die before him, to transfer
one-half of the principal to a charitable institution, and to pay
the income of the remainder to him during his life; in case he
should die before her, then at her death to transfer the whole of
the principal to the same institution. She died before her husband,
and one-half of the principal was paid to the institution and the
other half kept in trust for him.
Held that, on his death,
the institution was entitled to this part of the principal also,
and that it did not pass to the residuary devisees, although a
similar bequest for the benefit of another husband and wife
contained an express direction for a transfer of the second half of
the principal to the charitable institution upon the death of the
survivor."
Gray, C.J., said:
"The decision of this question doubtless depends upon the
intention of the testator, as manifested by the words that he has
used, and an omission to express his intention cannot be supplied
by conjecture. But if a reading of the whole will produces a
conviction that the testator must necessarily have intended an
interest to be given which is not bequeathed by express and formal
words, the court must supply the defect by implication, and so
mould the language of the testator as to carry into effect, as far
as possible, the intention which it is of opinion that he has on
the whole will sufficiently declared."
"It is a question in each case," said Mr. Justice Matthews in
Robison v. Female Orphan Asylum, 123 U.
S. 702, "of the reasonable interpretation of the words
of the particular will, with the view of ascertaining through their
meaning the testator's intention." In that case, Robison left a
will providing, thirdly, that his widow should have the income of
all his estate, with the right to spend it, but not to have it
accumulate for her heirs; fourthly, that, if his sisters, Ann Smith
and
Page 187 U. S. 413
Eleonora Cummings Robison,
"be living at the death of myself and wife, Jane S. Robison
aforesaid, that they or the one that may be then living shall have
the income of all my estate so long as they may live, and at their
death to be divided in three parts, one-third part of the income to
go to the Portland Female Orphan Asylum"
and one-third to each of two other institutions. Both sisters
died before the testator.
It was ruled that the fact that the sisters died before their
brother,
"whereby the legacy to them lapsed altogether, is not material,
because if property be limited upon the death of one person to
another, and the first donee happen to predecease the testator, the
gift over would, of course, take effect notwithstanding the failure
by lapse of the prior gift;"
that, unless it appeared on the face of the will
"that the gift to the defendants was not intended to take effect
unless the prior gift to Ann Smith and Eleonora Cummings Robison
took effect, the former must be considered as taking effect in
place of and as a substitute for the prior gift, which, by reason
of the contingency, has failed;"
and that, considering the third and fourth subdivisions
together, the limitations were to be taken as a complete
disposition of his estate, in the mind of the testator, who did not
intend to die intestate as to any portion thereof, giving to the
widow an estate for life, with an estate over for life to the
sisters, contingent on surviving the widow, and with the ultimate
remainder to the charitable institutions.
In
Newell v. Nichols, 12 Hun 604,
aff'd in 75
N.Y. 78, a wife had died leaving a husband and two children, a son
and a daughter. By her will, she created three funds -- one of
$30,000, the income of which was to go to her husband, and, on his
death, the principal to the heirs of her body then living, and in
default of such heirs to certain named remaindermen; another fund
of $15,000, the income to be paid to the daughter during her life,
the principal to be paid at her death to the heirs of her body then
living; in default of such heirs, to her appointees by will, and in
default of appointment, to the heirs of the body of the testatrix
then living, and in default of such heirs, then to the same
remaindermen; while a third sum of $15,000 was settled upon the son
as to the income, with the same provisions
Page 187 U. S. 414
as to the principal at his death as in respect of the daughter.
The husband and children were lost at sea, and there was no
evidence of survivorship between them. The case was decided at
special term by Van Vorst, J., whose careful and elaborate opinion
was adopted by the court in general term, and fully approved by the
Court of Appeals. It was held that the intention of the testatrix
plainly was that the limitation over to the remaindermen should be
effectual if for any reason the children could not take, and that
the death of the children without issue or appointment, under the
circumstances, and in the absence of evidence of survivorship,
entitled the remaindermen to have the limitation carried into
effect.
It was observed by Van Vorst, J.:
"Where a devise is limited to take effect upon a condition or
contingency annexed to a preceding estate, if that preceding estate
should not arise, the remainder over will take place, the first
estate being considered as a preceding limitation and not as a
preceding condition. . . . As when a testator meant to dispose of
all his property, and uses the words, 'if the legatee should not
survive,' held to mean 'if the preceding legacy should from any
cause fail.'"
Underwood v. Wing and
Wing v. Angrave are
relied on to the contrary. 19 Beavan 459, 4 De Gex. M. & G.
632, 8 H.L. Cas. 183.
The facts were these: Underwood and his wife had three children
-- Catherine, Frederick, and Alfred. Being about to emigrate with
their children, Mr. and Mrs. Underwood made mutual wills, dated
October 4, 1853. Mr. Underwood by his will devised his real and
personal estate to Wing, his heirs, etc., in trust for Mrs.
Underwood, her heirs, etc., absolutely, and the will proceeded:
"And in case my said wife shall die in my lifetime, then I
direct that my said real and personal estate shall be held by my
said trustee, upon trust for such of them, my three children,
Catherine Underwood, Frederick Underwood, and Alfred Underwood, as,
being sons or a son, shall attain the age of twenty-one years, and
being a daughter, shall attain that age, or marry under that age,
to be equally divided between or among them, share and share alike,
and in case all
Page 187 U. S. 415
of them my said children shall die under the age of twenty-one
years, being sons, or under that age and unmarried, being a
daughter, then I give, devise, and bequeath all my real and
personal estate as aforesaid unto and to the use of the said
William Wing, his heirs, executors, administrators, and assigns, to
and for his and their absolute use and benefit."
And the testator appointed his wife and defendant Wing
executors. Mrs. Underwood by her will, made by virtue of a power,
devised, bequeathed, and appointed all the real and personal estate
subject to the power, to Mr. Underwood, his heirs, etc.,
absolutely, and the will proceeded:
"(Subject to the estates and interests of my children therein,
under or by virtue of the will of the said John Tulley, deceased.)
And in case my said husband should die in my lifetime, then I
devise, bequeath, and appoint the said hereditaments and premises,
and sum and sums of money, and arrears of income aforesaid, unto
and to the use of William Wing, his heirs, executors,
administrators, and assigns, to and for his and their own absolute
use and benefit."
And she appointed her husband and William Wing executors.
Mr. and Mrs. Underwood and their three children embarked for
Australia, their ship foundered, and all on board, with the
exception of one sailor, perished. Both parents and the two boys
were washed into the sea by the same wave, but the daughter
survived for half an hour. All the children died under twenty-one
and unmarried. Wing proved both wills, and plaintiff obtained
letters of administration of the estate of Catherine Underwood. 19
Beav. 459, 460.
The courts agreed in the conclusion that at common law there
could be no presumption of prior decease in the absence of proof,
although the evidence tended to show that the husband was in good
health and an able swimmer, while his wife was in delicate health,
and their children of tender age, and this ruling has ever since
been accepted in the English courts and by the uniform current of
authority in the United States.
Under the wills, the husband, wife, and children having
practically died simultaneously, the intention of both testators
that their estate should pass to Mr. Wing seemed plain, but
Page 187 U. S. 416
the House of Lords (and the courts below) held otherwise, and
that as Mr. Wing could not show, either that the death of the
husband occurred in the wife's lifetime, or that the wife's death
occurred in the husband's lifetime, he could receive neither
estate. In the construction which produced this result it cannot be
said that the courts of this country have generally concurred. Lord
Campbell, then Lord Chancellor, dissented, and, referring to the
wife's will, said:
"Of course I fully recognize all the cases where, there being in
a will a gift really meant to be on condition or the happening of a
particular event, the court decided that it could not take effect
unless the condition was performed or the event had happened. But
the present seems to me to be a case of substitution, to take
effect on failure of the prior estate."
Granting that effect is to be given to the expressed, not the
conjectural or probable, intention of testators, he thought that,
by this will, the testatrix clearly expressed her intention that,
if her husband did not take the property, William Wing should take
it.
"The lapse of the bequest to her husband by his predecease being
substantially the only event upon which the bequest to him could
fail, when she says, 'In case my said husband should die in my
lifetime,' does she not, in substance say, in case the bequest to
my husband should fail, then William Wing is the object of my
bounty, and all shall go to him? She has not provided for the event
of there being an impossibility to determine whether she or her
husband died first. But, although she has not in terms provided for
this event, she has clearly intimated her intention that in case of
the gift to her husband not taking effect, the ulterior gift to
William Wing should take effect. And this seems to me not to be an
interpolation into her will, but a necessary implication from what
she has said. How can it be supposed that, if she had foreseen the
event of an uncertainty as to whether she or her husband died
first, so that her husband could not take from that uncertainty,
she would have altered the intention she had so plainly expressed
in favor of William Wing? Can it be considered possible that
William Wing would, in that event, have ceased to be the object of
her bounty? What other destination of the property, by her, can
Page 187 U. S. 417
be conjectured? If her husband should not take, William Wing was
substituted for him. . . . It seems to me to be a fallacy to say
that this was a gift merely on the happening of a particular event,
unless that event is taken to be the failure of the prior gift to
her husband."
It will be perceived that it was held that, for the purpose of
giving effect to the wills, the husband was not to be assumed to
have survived the wife, nor the wife to have survived the husband,
and yet, the wills having been thus eliminated, it was declared
that the heirs and next of kin of Mr. Underwood were entitled to
his property as though he had been the survivor, and that the heirs
and next of kin of Mrs. Underwood should take her property as
though she had been the survivor.
Whether in a given case a condition precedent, a condition
subsequent, or a conditional limitation, is prescribed is, in the
absence of unmistakable language, matter of construction. And
conditions cannot be annexed from words capable of being
interpreted as mere description of what must occur before the
estate given can arise.
Edgeworth v. Edgeworth, L.R. 4
H.L. 35.
As in all of these cases, so in this, we are remitted to the
language of the will to ascertain the intention of the testatrix,
and if that intention is clearly deducible from the terms used,
taking the whole will together, then we are bound to give that
construction which will effectuate and not defeat it. Reading this
will from the standpoint of the testatrix, as we must, we think it
not open to doubt that she intended to dispose of all her estate,
and did not intend to die intestate as to any part of it; that she
had in mind only three objects of her bounty -- her husband, her
son, and the home -- and that her intention, failing husband and
son, was that the home should take. If husband alone survived, it
was to go to the home at his death. If neither husband nor son
survived, it was to go to the home at once. Is her manifest
intention to be defeated because, instead of saying, "If neither my
husband nor my son should survive me, I give and bequeath my
property to the home," she said:
"In the event of my becoming the survivor of both my husband,
Oliver Wheeler Rhodes, and of my son, Eugene Rhodes, I then give,
devise, and
Page 187 U. S. 418
bequeath all my property. . . to the Young Women's Christian
Home?"
We do not feel compelled to so hold, and, by accepting so
technical and literal a view, to reach an adverse result on the
theory of a change in the burden of proof, or of an accidental
omission to prevent it. This is not a case of supplying something
omitted by oversight, but of intention sufficiently expressed to be
carried out on the actual state of facts. And as the estates of
persons perishing in a common disaster, intestate, notwithstanding
the statutes of descent and distribution may not have made
provision in respect thereof, are disposed of as if each survived
as to his own property, we think, upon principle, that the property
of Mrs. Rhodes should go as directed as if she survived her son, in
the absence of proof to the contrary.
It necessarily follows that title did not
prima facie
vest in the son, who is not shown to have survived his mother, and
must be taken to have died at the same time. The property remained
where it was vested, there being no evidence to show that it had
been divested.
The situation is illustrated by the case of
In re
Willbor, 20 R.I. 126. There Charlotte, Martha, and Eliza
Willbor, three sisters, perished in the same calamity, and there
was nothing from which it could be inferred that either survived
the other. Each left a will devising all her real and personal
property, excepting certain legacies, to her two sisters, or either
of the survivors, and to their heirs and assigns forever. The
Supreme Court of Rhode Island said:
"As all three of the testatrices lost their lives in the same
disaster, and no fact or circumstance appears from which it can be
inferred that either survived the others, the question of
survivorship must be regarded as unascertainable, and hence the
rights of succession to their estates are to be determined as if
death occurred to all at the same moment. . . . If all three of the
testatrices are to be regarded as having died at the same moment,
it follows that the bequest and devise in each of their wills to
the two sisters or either of the survivors did not take effect,
there being no interval of time as between the deaths of the three
during which
Page 187 U. S. 419
titles to property could vest, and the wills therefore stand as
if they contained only the bequests to the legatees subsequently
named."
The result is that the property passed under the will to the
home, and neither the next of kin of the mother nor the next of kin
of the son can defeat its destination.
The decree of the Court of Appeals is reversed, and the
cause remanded, with a direction to affirm the decree of the
Supreme Court.
