93 Ky. 619 | Ky. Ct. App. | 1893
delivered the opinion oe the court.
The construction of the following clause of the will of Jeremiah Fields, is the only question involved on this appeal, namely: “ Item fifth. * * * I hereby direct my executor to sell my undivided interest in said two' tracts of land, * * * and pay the proceeds of such sale equally to the children (that are alive at the time of distribution) of my brother, William Fields of Missouri, and the living children of my brother, James Fields. In the event of the death of any of the parties to this bequest, then their portion is to go to any issue they may have left, and if none is left, then their portion is to be given to the heir or heirs indicated above.”
William and James were dead when the will was made, the former leaving six, and the latter two children. The question is, do the children take per stirpes or per capita ? And shall the ten thousand dollars in the executor’s hands be divided into two or into eight parts?
The presence of some suggestive clause or expression in other portions of the will, indicatory of the testator’s intent to the contrary, must be found before we should disturb the equal distribution of the estate per capita among these children, as is apparently provided for by a literal construction of the language used.
And we observe first, that the sixth clause appears to
Thus, the testator gives his estate to his sister Jemima, as “ one branch of his kindred,” to his brother Frederick, if living, and if dead, then “equally” to the other three branches — to the “ children of his brother, William Fields, deceased,” whom he designates in this sixth clause as one of the branches of his kind,red, and to the “children of his brother, James Fields, deceased,” whom he also designates as one of said branches. He refers to “ the children of his brother William ” collectively only and as a branch, or as a class, and he does this in apparently studied or express terms, and having so unequivocally used these phrases as representing branches of his kindred, and having disposed of a large portion of his estate to these children as branches in the sixth clause of his will, no good reason can be assigned for giving a different meaning to the same phraseology when used in the fifth clause.
Moreover, the fifth clause is itself not wholly without a suggestive indication of this intention. The testator knew that his brother Janies had two children only, and,
On the whole case we are of opinion that the testator meant that the children of his brothers should take in the fifth as they took in the sixth clause of his will — by classes or branches — or per stirpes, and not per capita as was held by the lower court.
Many authorities are cited by counsel on both sides, but after all, the construction of the will in dispute depends on no other rule or principle than the ascertainment of the testator’s meaning as gathered from his own language.
The judgment of the lower court is reversed, with directions to distribute the estate in accordance with the requirements of this opinion.