Henry W. Webber


Here probably is not a more cited case in the law of survivorships than the leading case of Moore v. Lyons, which, in 1840, firmly laid down the rule of construction that words of survivorship prima facie refer to death in the lifetime of the testator, rather than to death in the lifetime of the life-tenant. In a devise, therefore, to one for life, and from and after his death to two others (naming them), or to the survivor of them, the remainderman takes a vested interest at the death of the testator even though one of them predeceased the life-tenant. The words of survivorship refer to the death of the testator, and not to the death of the tenant for life, unless from other parts of the will it be manifest that the intent of the testator was otherwise. The adverbs "from" and "after," and the like, in such a devise are held to indicate the time when the remainder or remainders shall take effect in enjoyment, and not the time they should vest. The above was also the early English rule. However, in 1819, or thereabouts, the English courts began to turn from this rule of construction to one which made the words of survivorship prima facie refer to the time of distribution or death of the life-tenant, as defining who should inherit, rather than to the period of the death of the testator, and many of the jurisdictions in this country have followed the English courts in this digression. The early English doctrine was adopted in the States of New York, Michigan, Pennsylvania, Indiana, Maryland, Illinois, Virginia, and Georgia. The discussion of the relative merits of these rules has been more or less controversial, and led an eminent American author in his work on Wills to dispose of the subject with the remark that "into the long drawn controversy over this change of construction we shrink from entering. Mr. Jarman in his excellent work on Wills concludes the chapter on Survivorships with a caution by quoting Sir W. P. Wood, V. C., in an old English case: "This word 'survivor' is certainly one that ought to be avoided by any person who is not a consummate master of the art of conveyancing, for I suppose no word has occasioned more difficulty."