Murray v. Huffaker ( 1886 )

Opinion by

Judge Holt:

The will of Elizabeth Huffaker contains this clause: “I desire after my decease that all of my personal estate be equally divided between the children of my brother, James Rogers, and the children of my sister, Rebecca Murray. My nieces and nephews are all I have, except two others, brother Hiram Rogers’ children, and I do not will them any part of said estate; and the children hereafter born to my brother, James Rogers, if any, shall be equal with those now living.”

At the death of the testatrix there were fourteen of the James Rogers children, their father being yet alive, and but two of the Murray children, their mother being dead. It is contended upon the one side that under the will all should take share and share alike, while upon the other it is urged with equal earnestness that each set of children should take one-half of the estate. The lower court held that the estate, which amounts to about $2,000, must .be divided equally between the sixteen children. This opinion was doubtless based upon the belief that the testatrix intended an equal division among them. However, it also construed the clause in question so as to give to any children of James Rogers born after the making of the will an equal share with their brothers and sisters; but no portion of such share or shares were to come out of the portion of the Murray children; and this construction, which is undoubtedly correct, is at war with the idea that the testatrix intended the children of her brother, James, to share equally with those of her sister, Rebecca.

If the testatrix had simply provided that her estate should be divided equally between the children of her brother, James, and her sister, Rebecca, then the words “equally divided” would mean a per capita and not a class division; unquestionably they would take per capita and not per stirpes. Such language alone, together with the fact that the objects of her bounty were equally related to her, would require such a construction. We are not unmindful of the fact that the language used in the first part of the clause strongly favors this view, and that to overcome it a contrary intention should plainly appear. The idea of equality, however, upon which it is based, is beyond doubt contradicted by the latter part of the clause, which plainly looks to two classes of persons. It is ambiguous or of doubtful meaning. It can not be construed as providing that the share of any afterborn Rogers child should be taken equally from the part of the sixteen children, because it .says that “the children hereafter born to my brother, James Rogers, if any, shall be equal with those now living.” She evidently apprehended that other individuals might be added to the one class. Such afterborn children were to be equal with individuals of the Rogers class, but not equal with those of the Murray class; and it is therefore clear that the will recognizes the two classes. The language of the clause, when considered entirely, indicates that while each individual of the one class was equally in favor with the testatrix, yet each of one class was not so with each of the other class. This plain distinction drawn by the testatrix can not be disregarded, if her intention is to govern. She undoubtedly intended to draw a line between the two sets of children; indeed, she in substance says so; and her object in making a will was to exclude the children of her brother, Hiram Rogers. We have not reached the conclusion that she intended one-half of her estate to go to the'one set of children and the other half to the other, by considering the testimony taken in the case. It was not competent evidence, as there is no latent ambiguity in the will. The judgment is reversed with directions to render one in conformity to this opinion.

Hays & Stone, for appellants. Montgomery & Jones, for appellees.