Howard v. Howard's Adm'rs , 30 Ala. 391 ( 1857 )

STONE, J.

The only question presented by this record, arises out of the construction of a clause in the will of James M. Howard, which reads as follows: “And I will, devise and bequeath to her [wife of testator] the other half [of testator’s property] during her natural life or widowhood. At her death or marriage, it is my will and desire, that said half of my estate shall bo equally divided between my half brother, Samuel J., and half sisters, Mary E., Hannah, Caroline E., and Gabriella Howard, and the children of my full sisters, Nancy Malinda Ruth erford, deceased, and Sarah Mead; my said half brother and half sisters, and the children of my two said whole sisters, to take equally, share and share alike. Should either of my said whole sister’s children be dead at the death, or marriage of my dear wife, leaving children, they shall take the place of their deceased parent.”

The probate judge decreed, that the brother and sisters of the half blood, and the children of the two sisters of the whole blood, took per capita, and equally under the will; and that decree is. assigned for error.

Appellant relies on the ease of Billingslea v. Abercrom-bie, 2 Stew. & P. 24, in support of his views. The language of that will was, “I give, bequeath and devise to my children, to-wit,A. A., J. A., J. A., A. A., T. A., and also to the heirs and legal representatives of my daughter, E. B., deceased, to be equally divided among each.” In that ease, there were two elements which distinguish it from this: first, the testator declares, “I give, bequeath and devise to my children,” — proceeding to name them; second, the bequest is to the heirs and legal representatives of Mrs. Billingslea. To hold that the persons last named took per capita, would involve the testator in the anomaly of declaring that the personal representatives, no matter how many, of his deceased daughter, should. share his bounty equally with his living children. We think the testator, by employing the terms heirs and legal representatives, intended to designate his daughter’s estate, and confer on its distributees one share. The context showed that the testator did not intend his grand-children should take per capita. — 2 Jarman on Wills, (2d American ed.) 111-12.

In the case of Blackler v. Webb, 2 Pr. Wms. 383, a testator “bequeathed the surplus of his personal estate equally to his son James and to his son Peter’s children, to his daughter Traverse and to his daughter Webb’s children, and to his daughter Man.” It was held, that the children of Peter, and of Mrs. Webb, each took equally with the other children of the testator — per capita, and not per stirpes. To the same effect are the eases of Butler v. Stratton, 3 Bro. C. C. 367; Weld v. Bradbury, 2 Vernon, 705. These authorities seem to us to be precisely in point, and decisive of this case.

There is no error in the record, and the decree of the probate court is affirmed.