This is a suit for construction of a will and it is submitted for decision upon the pleadings and stipulation of facts. The primary and substantial question is whether the donees of the residuary estate in remainder took jointly as a class or severally as tenants in common.
The pertinent facts in this case are that Evan F. Jones died testate on April 6, 1935, leaving surviving Mabel L. Jones, his widow, and Ella Whitfield (otherwise known as Eleanor Whitfield Simpson) and Kate D. Jones Lynch, his sisters. Testator left no issue; his father, Lewis D. Jones, predeceased him in 1906. The will of Evan F. Jones, dated September 17, 1898, was admitted to probate and his widow Mabel was appointed and qualified as executrix thereof. The estate comprised personalty except for one parcel of real estate of which testator became seized during coverture. The will provided a legacy of $5,000 and a life estate in all of the residue for his widow. These bequests to the widow were made and conditioned to be received by her in lieu of dower. The will further provided that upon the death of his widow the remainder should pass to his surviving children, the representatives of any deceased child to have the parent's share. Then follows the clause with which we are principally concerned:
"FOURTH: After the death of my said wife if there be no child or children, or representatives of any deceased child or children entitled to receive my estate under and according to the terms of the third clause of my will, then I give, devise and bequeath all my estate, both
real and personal, in whatever it may consist and wherever situate, unto Ella Whitfield, my sister, Kate D. Jones, my sister, and Lewis D. Jones, my father, to be divided equally among them to them and their heirs and assigns forever."
In addition to the $5,000 gift of corpus , Mabel F. Jones enjoyed, until her death on August 5, 1946, her life estate under the residuary bequest in her husband's will. The inheritance tax report which she filed as executrix of her husband's estate lists decedent's two sisters, Ella Whitfield Simpson and Kate D. Jones Lynch, as residuary remaindermen.
Plaintiff as executor of the estate of said Mabel F. Jones claims from the substituted representatives of the estate of Evan F. Jones one-third of the remainder of the residuary, upon the theory that the gift to Lewis D. Jones lapsed by reason of his death in the lifetime of testator and that, to this extent, testator died intestate with the result that his wife, as next of kin, succeeded thereto under the statute of distribution. In opposing this claim, defendants contend that the bequest of the remainder of the residuary estate was a gift to a class (testator's father and two sisters) which passed in its entirety to the members of the class who survived testator. Additionally, waiver and estoppel are pleaded as barring plaintiff's claim because (1) Mabel F. Jones failed to take possession for herself of that interest in the estate while it was under her administration, and (2) as executrix, she reported for inheritance tax purposes her interest in the estate to be the $5,000 legacy and the life estate in the residuary, with the remainder interest in testator's two sisters.
Literally the testator does not designate a class of donees, nor does he by express terms provide for survivorship amongst the individually named donees. By established rules of construction the gift of the remainder of the residuary estate to the father and sisters, by name, to be divided equally among them, presumptively created a common tenancy. Dildine v. Dildine , 32 N.J. Eq. 78 (Ch. 1880); Hand v. Marcy , 28 N.J. Eq. 59 (Ch. 1877). The phrase "to them and their heirs and assigns forever," coupled to a gift to named individuals, are words of limitation. So used, they do not admit
of a construction which will permit heirs and assigns to take, in substitution, for a named donee who predeceases the donor. Hand v. Marcy, supra; Zabriskie v. Huyler , 62 N.J. Eq. 697 (Ch. 1901); affirmed, 64 N.J. Eq. 794 (E. & A. 1902); King v. King , 125 N.J. Eq. 94 (E. & A. 1939).
The presumption, invoked in the construction of wills, that a gift to named individuals, in equal shares, excludes the element of survivorship is rebuttable, however, and stands or falls upon the ultimate determination of testator's intention expressed in the will, aided by available competent evidence. Unless that presumption is successfully rebutted in the instant case, partial intestacy must follow.
No citation of authority is necessary to support the argument of the defendants that such construction should be placed upon provisions of doubtful meaning as will avoid intestacy. But this doctrine may not be invoked in the absence of a conflict in the will itself. If a testator has chosen apt and clear language to express his will, a court may not violate his solemn testament by the alteration of, or addition to, any of its provisions, under the guise of construction, even in an endeavor to avoid intestacy. A testator is presumed to know the law; and if the legal ...