Duckett's Estate

Opinion by

Mr. Justice Stewart,

The matter in dispute here is the proper method of the distribution of the testator’s estate. The testator, Joseph H. Duckett, died April 5, 1867, leaving to survive him- a widow, Harriet E., who died September 24, 1872, and three children (1) Sarah A., who died unmarried and without issue April 6, 1904; (2) Margaret W. Stelwagon, who died November 28, 1889, leaving nine children, ’ namely, William H., Robert P., Henry W., John W., Joseph Weightman and Frank M. Stelwagon, Harriet S. Mullen and Margaret S. Craig, all of whom are now living, and (8) William H. Duckett, a son who died in 1880, leaving three children, namely, Laura E. C. Coobman, still living, Harriet W. Lippincott, who died in 1889, leaving a daughter, Laura E. Lippincott, living, and William. Duckett, Jr., a son by a second marriage, who died in 1880, leaving a minor child, Robert N. Duckett, still living.

The testator in the fifth clause of his will devises his entire residuary estate to his executors in trust, to pay over one-third the income therefrom to his wife during her life, and the remaining two-thirds to his three children during their lives; the share of his son, William Henry, therein to be divided between the said William Henry, who was to receive two-thirds of the same, and his two children, Harriet and Laura Duckett, who were to receive in equal parts the remaining third.

The final disposition under which the present controversy arises is as follows: “ And from and after the decease of my said wife, Harriet E. Duckett, and of my children, Margaret W. Stelwagon, William Henry Duckett and Sarah Duckett, then to hold all the said estate and property in further trust upon the uses and trusts following, that is to say, to and for the only proper use and behoof of the lawful issue of my said children, Margaret W. Stelwagon, William Henry Duckett and Sarah Duckett, their heirs and assigns forever share and share alike ; and in case there shall not be any such lawful issue, then the same to be divided between my nearest of kin, their heirs and assigns share and share alike.”

The distribution ordered in the court below was per stirpes, and resulted in very decided inequality of shares as between testator’s grandchildren. From the decree of distribution, the children of Margaret W. Stelwagon have appealed, and their contention is, that under the above-recited clause of the will, testator’s grandchildren took a vested interest in the residuary-estate ; that the devise is to them as a class, and that the proper rule for distribution is per capita. The devise is to the “lawful issue of my said children,” etc. The case turns on the meaning to be given these words. We are required to allow them their legal import, unless something is discovered in the will clearly indicating a meaning inconsistent therewith. Then too, we are to allow them their plain and ordinary meaning, unless it appear from an examination of the will, that they were used by the testator in a special and peculiar sense. It is the intention of the testator that is to be sought for. If it appear that in parts of the will he has employed terms in a way clearly indicating his own understanding of their import, however this may differ from their legal or ordinary meaning, there can be no safer way of developing the testator’s purpose than to give to these same terms, when elsewhere appearing throughout the instrument, the same meaning the testator has attached to them in the particular instances where his understanding of them is apparent, except as a different purpose in their use is expressed. The will before us furnishes a key, by means of which the sense in which the testator used the words lawful issue is easily discoverable. In the earlier bequest to his daughter, Sarah Duckett, he provides, that if his said daughter should die in his lifetime leaving issue, then the legacy bequeathed was to be paid to such of her children as might then be living. And in the earlier devise to his sister, Mrs. Wilson, for life with remainder to her issue, their heirs and assigns forever, abso-. lutely, he further provides, that upon her death, without leaving-such child or children to survive her, then the estate was to go over. In both instances the testator used the words issue and children, not only interchangeably, but it is apparent beyond possible dispute, that the beneficiaries intended under these several clauses were the children of the several first takers. This repeated use of the word issue to designate children, forbids that it should be given any different meaning in the residuary clause, in the absence of anything to show that other meaning was intended.

Adopting this view of the case, and reading the residuary clause, as though children was the word employed, since by issue, children were meant, the word issrie calls for no interpretation : it is not a governing word. The devise is to the children of testator’s three children; the estate vested in those answering this description. If the word were issue, beyond doubt remoter descendants would take under the devise; but the word issue having been found to mean children, none but those within the class so indicated can take.

By directing a distribution per stirpes, the court below thought to avoid a state of things, which, under the construction we have given the will, could not possibly arise. The consideration that influenced their action was, that allowing the word issue its legal significance, remoter descendants, those of the third generation, would be introduced as beneficiaries under the will, and thus a per capita distribution, “ would weld into one class those whom nature had divided into two, and in that respect would run counter to the human instinct.” The court very correctly concluded that an analysis of the will shows such a distribution to be adverse to testator’s intent. But, as we have said, the word issue is not in the will, except as it means children; and under the terms of the devise as we have found it to be, grandchildren’s children can only take by way of succession in the right of the parent in whom the estate vested. It is very evident that testator contemplated no such distribution as that the court below sought to avoid; and his purpose in this regard is manifest, not so much by the slight indications which may be found in the will of his having had the statutes of distribution in his mind, as by the plainly expressed and evident purpose he had to give his entire residuary estate to his grandchildren as a class. The case calls for a per capita distribution among those entitled to take, to wit: the children of testator’s children, Margaret W. Stelwagon, and William Henry Duckett. The decree of the court helow is reversed, and distribution is directed to be made in accordance herewith.