Almand v. Whitaker , 113 Ga. 889 ( 1901 )

Lumpkin, P. J.

In the second item of the will of James H. ■Smith he devised certain land to his two daughters, Mrs. Jane E. Overton and Mrs. Mary O. Cowen. The third item of his will read as follows: “ I give and bequeath the balance of my lands, consisting of three hundred and fifty acres, to the following named heirs of my estate: to Mrs. Nancy A. McDonald’s children, names as follows, Mrs. E. B. Almand, Mrs. Martha L. Still, James M. McDonald, Benjamin B. McDonald, Howard 0. McDonald; to the heirs of H. E. Smith, Mrs. Elma M. Harper, William C. Smith, Isaac D. H. Smith, Wilmer Z. Smith, and Bettie Nannie M. Smith; the above-named lands to be sold by my executor and equal division made'Jbetweenj the above-named heirs as soon as practicable after my decease; also, John H. Smith, who is now living in Texas, who is my eldest son.” The question for decision is whether, under the latter item, the named devisees each took an undivided eleventh of the proceeds of the 350 acres of land, or whether the proceeds thereof were to be divided into three equal shares, one of which should go to the five children of Mrs. McDonald; another to the five heirs of H. F. Smith, and the remaining share to John H. Smith, the testator’s son who lived in Texas. The trial judge held that the division should be made as last indicated; that is, per stirpes. We are of the opinion that it should be made per capita. The general rule of construction is that, “ under a gift te ‘ children and grandchildren,’ or to A and the children of B, or the children of A and B, or to the children of A and the children of B, or to A and B and their children, or to a class and their children, all take per capita;” though the “presumption in favor of a per capita distribution yields readily in favor of any indication of a, contrary intent.” 29 Am. & Eng. Ene. L. 421-424. To the same effect, see 2 Jarman on Wills, 756, and ‘Schouler on Wills, § 540. This general rule applies, we think, to the present ease; for there is-not in the will now before us “ any indication of a contrary intent,”' or what Mr. Jarman terms “ a very faint glimpse of a different intention in. the context.” On the contrary, the testator named eis nominibus the precise persons who were to receive the proceeds of the lands mentioned in the third item of his will. He further declared, in the most distinct and unequivocal language, that these-lands should be sold by his executor “ and equal division made between ” the ten persons first mentioned as heirs and his son John H. An equal division could not possibly be made among these eleven persons without giving to each of them an eleventh of the proceeds-of the realty. A division on any other plan would, it seems, defeat-the express direction of the testator, so far as the same may be gathered from the language he employed in framing his will.

It was insisted on the argument here that as the word “between ” was used after designating by groups the children of Mrs. McDonald and the heirs of H. F. Smith, and 'as this term could be properly employed, relatively to devisees, only with reference to two persons or groups of persons, it indicated an intention on the part of the testator to make a division per stirpes. Grammatically, this is true as to the word “ between ”; and if the will had in this connection made no mention of John H. Smith, the testator’s eldest son, the contention of counsel would be forcible indeed. But as John H. was specifically named, and as he was to share equally with the others in the division contemplated by the testator, it is manifest that the latter did not employ the term “ between ” in its usual and proper grammatical sense. This case is clearly distinguishable from that of White v. Holland, 92 Ga. 216; for there the will under consideration, though quite similar to the one now before us, was construed with reference to competent aliunde evidence throwing light upon the testamentary intention.

Judgment reversed.

All the'Justices concurring.