One of the greatest dangers that a lawyer faces is the danger that he may not recognize that there is a real problem involved when a client calls upon him for advice. Once the lawyer sees that there is a problem and is able to correctly diagnose the problem, the solution of the problem is usually relatively easy. In other words, there is more danger that the lawyer will overlook the problem than that he will fail to find the proper solution after he has found the problem. Furthermore, he may create a problem in drafting legal instruments if he does not know that a particular problem exists in the area of law involved. As an example, a client may inform his lawyer that he-the client-is the executor of a will which devised and bequeathed the residue of the testator's estate to the children of the testator's son, John. The client may inform the lawyer that John survived the testator, but is now dead, having had five children, all of whom survived him. The client-executor asks the lawyer how the estate should be divided. If the lawyer does not see that there is a problem concerning class gifts involved, he may think, as most laymen do, that a gift in a will to the children of John means a gift to the children of John. As a lawyer familiar with class gifts knows, this may or may not be true. It would mean a gift to John's children if all of them were alive at the testators death, but if some of the children were born after the testator's death they would be excluded and would not share in the gift unless all the children were born after the testator died, in which case all the children would share. Does a gift in a will to the descendants or issue of the testator mean a gift to the descendants or issue of the testator who survive him? The answer to this question is that a gift of this type is generally not a gift to all such descendants or issue. There are many other problems of construction which arise when apparently innocent words are used in a manner to suggest that there is really no problem involved. A devise of real property is made in a will to John, but if he die without issue, to Richard. Does this mean that Richard gets the property if John survives the testator and then dies without surviving issue? This is certainly not the case in all jurisdictions. Would it make any difference if John had had issue, all of whom predeceased John? Suppose that a testator devises property to his widow for life, remainder to John and Mary, or the survivor of them. Does this mean that if Mary should survive John she then owns the entire property? The answer is that it may or may not mean that, depending upon other circumstances. It is the purpose of this article to point out several construction problems which, on the surface, may not seem to be problems at all, to attempt to show what the problem is in each situation, and then delve into the possible solutions. Authority for the suggested solutions may not appear immediately therewith, but, in such cases, will appear in the discussions following thereafter.
Londo H. Brown,
The Testator's Intent--Vague Meanings of Clear Sounding Phrases,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol69/iss2/3