49 Conn. 220 | Conn. | 1881
This is a petition by the administrator with the will annexed, for advice as to the construction of the will pf Stephen H. Heath. The testator died in 1810, leaving the will in question, which was executed in 1808. By it he directs that his personal estate, except certain articles given his widow, be put into a form in which it shall produce interest, and that one fourth of this annual interest be paid to his widow for her life, one hundred dollars to each of his four sons and seventy-five dollars to each of his seven, daughters, and that the remainder of the interest be divided between his sons and daughters in proportion to the shares already given them. The will then provides as follows:—“ And in case any one or more of my said children shall die without a lawful heir or heirs, his,
The last of the children of the testator has recently died, and the principal of the fund is now to be distributed. The heirs entitled to it under any construction of the will are very numerous, and are widely scattered, making it a matter of great difficulty, and hardly of possibility, to trace them all.
Two questions are presented by the petition—one as to the rule for the division of the annual income of the property, the other as to that for the final division of the property.
As to the division of the income—we think it clear that upon the death of any one of the children of the testator, leaving children, these children would take the parent’s share of the income, and so of any later generation; in other words, that the share of the income of any child of the testator leaving children, would descend to his or her representatives of whatever generation, until the death of the last of the children left by the testator. The per stirpes rule we think clearly applicable to the income until the time for final distribution of the property. The- administrator has adopted tins rule in paying over the income, and we think correctly.
The other question, with regard to the rule for the final distribution of the property, is one of much more difficulty.
It is clear that by “ the lawful heirs of my said children,” the testator meant the issue of the several children, and of whatever generation.. If this were all it would be an
We conclude therefore that the final distribution of the property is to be made per stirpes.
In this opinion the other judges concurred; except Pabk, C. J., who inclined to the opinion that the will might be construed as intending a per stirpes distribution among the several branches of the family of which each of the testator’s children was the head, and a per capita division among the heirs of whatever number or degree making up such branch.