Follansbee v. Follansbee ( 1895 )

Mr. Justice Shepard

delivered the opinion of the Court:

The contention of each side is based upon the meaning of the first clause hereinbefore quoted, aided if it need be by the language of the succeeding clauses. There has also been a very learned and able discussion, in the light of its bearing upon the words of the will, if ambiguity therein be granted, of the rule propounded by Jarman for construction in such cases. He says :

“ Where a gift is to the children of several persons, whether it be to the children A and B, or to the children of A and the children of B, they take per capita and not per stirpes. The same rule applies where a devise or bequest is made to a person and the children of another person; or to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, 'as to my son A and the children of my son B; ’ in which casé A takes a share equal to that of one of the children of B, though it may be conjectured that the testator had a distribution according to the statute in his view. So, if the gift be to A and B and their children, or to a class and their children, every individual coming within the terms of the description, as well children as parents, will take an equal proportion of the fund; that is, the distribution will be made per capita." 2 Jarman on Wills (6th ed.) 205.

Concerning this rule, it was said in a case cited on behalf of the appellants : “ But this, like some other general rules of construction of wills, has perhaps been adopted and adhered to by the courts rather from the importance of having some rule of interpreting phrases so frequently used by testators than from any strong and preponderating reason in its favor.” Balcom v. Rice, 96 Mass. 204, 205, per Mr. Justice Gray.

It is plain, however, that Mr. Jarman did not give the rule any greater weight; for, immediately following the statement of the rule as given above, he added : “ But this mode of construction will yield to a very faint glimpse of a different intention in the context.”

In Balcom v. Rice, supra, the particular clause was a devise “ to my brothers A, B and C, and my sisters D and.E, and the heirs of F.” The court held against a distribution per capita, because it found “a glimpse of a different intention” in the use of the word “ heirs,” not only in the particular clause, but also in another where it seemed to be used as indicating a distribution per stirpes.

In a later case, where the bequest was “to the children of my brother A by his first wife and the survivor of them and to the children of my nephew B and the survivor of them, their heirs and assigns forever,” it was held that they took per capita. Hill v. Bowers, 120 Mass. 135. The court then said, speaking through the same justice: “ The general rule is, that by a bequest to the children of A and to the children of B, the children take per capita and not per stapes, in the absence of words indicating a different intention.”

As shown in many of the cases cited on the argument, the word heirs when used in similar provisions, has often been taken as indicating a distribution or partition per stirpes, and so likewise with the word family. On the other hand, a description as “ the children of A” has quite generally been considered as the equivalent of their designation by-name instead of as a substitute therefor, and consequently as indicating an intention to distribute per capita. Britton v. Carson, 46 Md. 186, and cases therein cited, as well as on the briefs of counsel.

However, the words of the testator in this instance are not such as to require us to determine his intention by the application merely of any general rule of interpretation, and the question of the soundness of the Jarman rule and its controlling effect in cases otherwise doubtful, need not necessarily be passed upon.

Looking for the intention of the testator as indicated by the words that he has used, we are of the opinion that the auditor’s report rightly expressed it. Granting the effect of the words of division — “ among my heirs-at-law ” — as contended on behalf of the appellants, in cases of general doubt and uncertainty, we cannot give them controlling weight or even great importance in this instance. These words inaptly describe the children of the two living brothers, and are necessarily controlled by what follows them. The completed sentence is : “ Among my heirs-at-law as follows — to the children of my brothers.” These last are the effective words. That these children were in the mind of the testator, collectively, as individuals, and not as the representatives of their fathers merely, is made quite clear by the further words, “ in equal proportions, share and share alike.” The controlling effect of these words cannot be construed away. In the very same clause, also, the testator directs that the surplus revenues and profits that may accumulate during the life of Mrs. Tucker shall, be “ divided among the said children with the proceeds of the sale of said real estate.” Again, the intention is shown in the second item, where the personal property is bequeathed “ to my nephews and nieces,” and in the general residuary devise and bequest “to the children of my said brothers.”

Taking the particular clause and considering it separately, and then in connection with the context, we can come to no other conclusion than that the testator intended the objects of his bounty — " the children of his brothers ”— to take per capita. It follows that the decree appealed from must be affirmed, with costs to be paid out of the assets in the hands of the trustees ; and it is so ordered.