Williams v. Batchelor

PeaesoN C. J.

The main question depends upon the construction of the will. That is so- plain, that it is difficult to discuss it, or to see any reason for having made it a subject of litigation.

The testator gives to each of his children an equal share of his estate, subject to the life estate of his wife in the whole— and he appoints her sole executrix of his will and guardian of his children, and he provides that in case of the death of any one of bis children before the death of his wife, the child or children of such deceased child, shall stand in the place of the parent and be entitled to such part of his estate as the deceased child would be entitled to at the death of his wife, liad he been then living.

The will then confers upon the executrix power to allot the children in her life time, upon marriage or arrival of age, (this is a necessary implication) such part of the share of his estate, to which the child may be entitled, as she may in her discretion think proper, with an express , injunction that the sum advanced to any of his daughters must be secured to their sole and special use; he makes no such provision in regard to his only son. This is the only discrimination made between his daughters and his son. The executrix so understood the will, and acted on her power. After the son arrived at age, she allotted to him an amount about the same as she had given to the daughters; he died in her life time. Suppose he had survived her, of course he would in the final division have taken subject to the amount advanced. His children can only take what he would have been entitled to at his mother’s death.

~W(i concur with the view taken by the Commissioner in regard to the two matters excepted to, and see no error in the older confirming the report.

Tills opinion will be certified.

Per Cueiam. Judgment affirmed.