Billinslea v. Abercrombie , 2 Stew. & P. 24 ( 1832 )

Lipscomb, C. J.

— Thomas Abercrombie, one of the legatees of Isaac Abercrombie, deceased, filed his petition in the County Court for the county of Perry, praying that the executors -of the last will and testament of the said Isaac Abercrombie, should be compelled to make a distribution of his estate, agreeably to law. • The County Court proceeded under this pe-filloa. p> i ¡alio an order for thos’ii.trib5 donas prayed ¥■ n the order of diet :"intioi■,. ¿nade by the ■ «nty )urt, Yvilliara Elidir. one the legatees, , . ;do: writ of ormr to Ibo n’cuk onrt.

None f the other legal oes wore <• satisfied with the order of distribution, modo by the County Court.

The Circuit Court dismissed the v;rit of error; "because, that the other legatees were not joined vrith Thomas Abercrombie as defendauls. The cause is now brought up by a writ of error, from the judgment of the Circuit Court; and it is now assigned for error, that the Circuit Court erred in dismissing the writ of error sued, out from the order of the County Court.

An appeal or writ of error is given by our statute, “ to the party or parties, dissatisfied with any judgment, or final order of the County Court, whether in vacation or term time the party seeking to reverse such judgment or final order, entering into bond and security, to the Judge of the County Court.

Our statute docs -not. define who áre to be made parlies to such writ of error, or appeal, but it is believed, that it is so veil established by the uniform practice of courls, that all who are to be affected by the judgment or order, so sought to be reversed, should in some way, be made parties; that it does not require the aid of any express legislative enactment, to secure this privilege. All of the'legatees who were satisfied with the order of distribution, were interested in supporting it, and had as strong claims to be hoard, before the order should bo reversed, as "Thomas Abercrombie, the cue selected as a defendant.

We believe then, tliat the Circuit Court did not err in. dismissing the writ of error, for this irregularity, in omitting to make the other legatees parties defendants.

We are, however, requested by the parties, to give a construction to a clause in the wilh of Isaac Aber-crombie, deceased, which is the true ground of the contest between the plaintiff in error, and the other legatees.

It is a part of the 3d section of the will, and is in the'words following: “All the balance and residue of my' estate, whether real or personal, left, after fulfilling and completing the devises and legacies in this my last will and testament mentioned — I give, bequeath, and devise to my children, to-wit, Archibald Abercrombie, James Abercrombie, Isaac Abercrom-bie, Alexander Abercrombie, Thomas Abercrombie, and also to the heirs and legal representatives of my daughter Elizabeth Billinslea, deceased, to be equally divided among each.”

We believe that no reasonable construction of the clause recited, can place each of the heirs and legal representatives of Elizabeth Billinslea on a footing of equality in the amount of their respective dividends, with the sons of the testator. We can not believe, that the testator intended to make them distributees, per capite, equally with his sons. The terms employed, excludes such a construction : he devises and bequeaths to his children, naming them, the residue of his estafe, both real and personal; but wishing to bring in the children of his daughter Elizabeth, deceased, for their mother’s share, after naming his sons, he adds — “and also the legal representatives and heirs pf my daughter Elizabeth Billinslea, deceased, to be equally divided among each.” The last member of the sentence, can not be extended to the sons, but it is to be confined to the daughter Elizabeth— her share to be equally divided among each of her heirs and legal representatives. The heirs and legal representatives of Elizabeth, are, under the residuary clause of the will, entitled to an equal share of one sixth of the residuum.

This construction ought to be sustained, if the words of the will left the intention of the testator uncertain and ambiguous; because he could not, in equity and justice, be supposed to intend giving the heirs of his daughter Elizabeth more than she herself, if living, would have been authorised to expect from him.

Let the judgment be affirmed.