Page:The Green Bag (1889–1914), Volume 16.pdf/286

 Prob/en/s of Survivorsliip. prior devises having failed, have title as against the heirs at law. We may turn now to a consideration of the condition. The House of Lords, Lord Chancellor Campbell dissenting, interpreted it literaily. They thought that while one might reasonably conclude that the testatrix wished Wing to have the property in case her husband did not live to need it, yet the prior death of the husband was the only cir cumstance she had in mind by which the husband would cease to need it; that for this circumstance and it alone she provided,; that she did not provide for the contingencies of simultaneous death or inability to determine which died first; and that therefore, one of those possibilities having happened, there was an intestacy. Exactly contrary to this conclusion of the highest court in England is that of the highest tribunal in America. In Young Women's Christian Home v. French1 it appeared that the testatrix disposed o'f her property first for the benefit of her husband and son. adding, "In the event of my becom ing the survivor of both my husband . . . and of my son ... I then give ... all my property ... to the Young Women's Christian Home. ..." The husband died first. The testatrix and her son were lost together in a steamer collision. The repre sentatives of the mother, the representatives of the son, and the Home claimed the prop erty. The court held that the Home had the title. The representatives of the son rightly failed, since they claimed through the son, and so had the burden of establishing his survivorship, which they could not sustain. The great question was, could the Home make out its title as against the representar tives of the mother (the testatrix), who would clearly be entitled if all the gifts failed. It could no more prove the performance of the condition, literally interpreted, than could Wing in Wing v. Augrave. The Supreme Court.2 however, thought that the condition 1187 t*. S. 401. 23 Sup. Ct. 184 f IQ02). • Unanimously. Chief Justice Fuller rendered the opinion.

should not be taken literally; that from the whole will it appeared that the testatrix in tended to dispose of all her property; that her intention, ''failing husband and son, was that the Home should take;'' and that a lit eral interpretation would defeat this inten tion. They held that whether "my becom ing the survivor" or "neither surviving me" was used to express the condition was imma terial; that since property is disposed of as if "each survived as to his own property"8 in this case it must go as if the testatrix sur vived, namely, to the Home. One agreeing with this result might wish to express the reasons somewhat differently. Possibly the condition could be construed to mean "in case the gifts to my husband and son fail." The Home could prove the happening of that event. Language may be given the / meaning it had to the testatrix.x But grant- V ing the position of the House of Lords4 that these words provided only for the contin gency of prior death, it may yet be thought that the intention to dispose of all her prop erty, and to the Home if neither husband nor son could take, adequately provides for the contingencies of simultaneous death or inability to determine the order of death,, According to this intention, which is ex pressed by the will as a whole, the Home clearly was entitled. As the Supreme Court said: "This is not a case of supplying some thing omitted by oversight, but of intention sufficiently expressed to be carried out on the actual state of facts."6 The argument • of Lord Chancellor Campbell, dissenting, in Wing v. Augrave and of Chief Justice Fuller in Young Women's Christian Home v. French seem to the writer unanswerable. The English courts have, of course, followed Wing v. Augrave." In the United States the 3 This is only a way of saying that property is dis posed of as if all died at once. This sort of statement has been dealt with, supra, pp. 237-238. 4 In Wing v. Augrave, supra. ' 187 U. S. 401, 418. 6 The first English case looked in the direction of a