Gerrish v. HinmanGerrish v. Hinman
- Reporters:
- Before:
- Prim
By the Court,
Prim, J.:Thе parties to this suit all claim under the will of James Gerrish, and the clause under which they claim is as follows: “ I give аnd bequeath to my beloved wife, Mary Ann, all the rest and residue of my real and personal property fоr her life-time. At her decease I do devise and bequeath all that may remain of my real and personal property to each of my .living children and thе children of my deceased daughters alike, to bе divided as a majority of them shall say, by sale or othеrwise.”
TJpon the construction of this clause, two questions are presented for consideration: 1. At whаt time does the will speak as to the objects оf the testator’s bounty, at the time of his death or at the date of the will ? 2. How do the objects of his bounty take, per capita or per stirpes?
On the first proposition, it is claimed by the appеllants that the will, in designating the objects of the testator’s bounty, speaks from the time of his death and was from thе date of the will. This proposition is correct, аnd is well established by the authorities. The general rule аppears *350to be that “ a devise to a class of persons takes effect in favor of those who constitute the class at the death of the tеstator, unless a coutrary intent can be inferred from some particular language of the will or from such extrinsic facts as may be entitled to considerаtion in construing its provisions.” (Campbell v. Rawdon, 18 N. Y. 412; 1 Redfield on Wills, pp. 7, 8, 9, 210; Jarman on Wills, pp. 286, 287; Walker v. Williamson, 25 Ga. 540; 21 Conn. 550.) And in this case there is no language in the will nor еxtrinsic facts from which a contrary intent can be infеrred. Then we hold that at the time of the death of thе testator, all of his children and the children of his deceased daughters took a vested interest in his estate, subject to the life estate of his said wife, Mary Ann. (Henry Warren v. Mary M. Hembree, ante, 118.)
Thе nextquestion to be considered is whether the objеcts of the testator’s bounty are to take per capita or per stirpes. In this mattеr the intention of the testator must control, and that must be ascertained by looking into the language employed by the testator in designating the objects of his bоunty. The objects of his bounty are designated as his living children and the “children of deceased daughters.” The numbеr and names of the latter are not mention in the will, but are merely referred to as a class in their representative capacity, thus evincing the purpose of the testator to give them the shares their mothers would have taken if they had survived him. Such is the construction given generally by the courts upon will contаining similar provisions. (Lyon v. Acker, 33 Conn. 222; Risk’s Appeal, 52 Pa. St. 269; Fissel’s Appeal, 27 Id. 55; 3 Jones N. C. Eq. 205.)
Entertaining the views herein expressеd, we have reached the conclusion that it wаs the intention of the testator that his property should be divided among his descendants named per stirpes and not per capita.
Therefore it is ordered that the decree of the court below be so modified as to divide the land into five equal portions.