Moses v. Allen , 81 Me. 268 ( 1889 )

Walton, J.

This is a bill in equity to obtain the construction of a will. The will contains this clause: — “Sixth. All the rest and residue of my estate, real, personal, and mixed, I give, devise and bequeath unto my nephews and nieces in equal portions.” The question is whether the surviving children of deceased nephews and nieces, who died prior to the death of the testator, take the respective shares of their deceased parents. We think they do. It was decided in Nutter v. Vickery, 64 Maine, 490, that upon reason, principle and authority, the lineal descendants of a relative of the testator having a bequest in the will, are entitled to the legacy given to their ancestor, though the original legatee was dead at the date of the will: that such may fairly be presumed to have been the intention of the testator; and that our statute, which has been in force for nearly a century, was intended to secure this result. R. S., c. 74, § 10. The only difference between that case and this is that, in that case the relatives were referred to by name, while in this they are described by their relationship to the testator. We think this can make no difference in the application of the rule.

Decree accordingly with costs (including reasonable counsel fees') to all parties, to be paid out of the estate.

Peters, C. J., Daneorth, Virgin, Emery and Haskell, JJ., concurred.