118 Ind. 23 | Ind. | 1889
Mary Ferrell died September 5th, 1884, testate, leaving surviving her Andrew Ferrell, her husband, and brothers and sisters and children of deceased brothers and sisters, and brothers and sisters and children of deceased brothers and sisters of her deceased husband. The testatrix was childless. By her will she gave her husband $2,000, and then provided as follows: “ The balance of my estate I will
A controversy arose among the general legatees as to the portion they were each entitled to receive under the provisions of the will as hereinbefore quoted, some claiming that the remainder of the estate should be distributed so as to give to each of the children of a deceased brother and sister of herself, and to each of the children of deceased brothers and sisters of Perry J..Brinegar, a portion of her estate equal to the portion given to each of her surviving brothers and sisters and the surviving brothers and sisters of Perry J. Brinegar, deceased,Perry J. Brinegar being the deceased husband of said testatrix. In other words, some of the legatees claimed that the distribution 'should be per capita, and others claimed that distribution should be made per stirpes.
The executor filed his petition in the court below, showing such contention among the legatees, and requesting the court to construe the will and declare its true meaning and intent.
Upon the filing of said petition by the executor, the appellants filed their cross-petition, making the record of the will and probate thereof a part of the same, and asking the court to adjudge each of them entitled, under the provisions of the will, to one-twelfth of that part of the estate in controversy, upon the theory that the will provides that distribution should be madeyier stirpes and not per capita.
Following this, appellee Sarah A. Henry, as guardian of six minor children of William H. Henry, a deceased brother o.f said testatrix, filed a cross-petition showing that there are twenty-five legatees entitled to share in the portion of the
The appellants filed a motion for a new trial, which was overruled, and exceptions reserved to the ruling by the appellants.
The first cause assigned for a new trial is, that “ the decision of the court is not sustained by sufficient evidence.” The second alleged that “ the decision of the court was contrary to law.”
¥e think these properly challenge the construction given to the will, as it fairly appears from the bill of exceptions that the will was all the evidence submitted to the court. The only contest was as to the construction to be given the language used in the devise of the remainder of the estate of the testatrix, and no other evidence was competent in the ■case, unless there was such ambiguity in the language used as to admit of parol evidence, and there was no such ambiguity in the will in controversy as to admit of parol evidence to aid in its interpretation.
It is contended by counsel for appellees that the will is not properly included in the bill of exceptions, and, therefore, can not be considered. The will is made an exhibit to the cross-petition of Perry J. Rhue and others, and as such is
When a paper is properly a part of the record as an exhibit which is made a part of a pleading, and once copied into the record, it is useless to re-copy it into the bill of exceptions, and it is sufficient to refer to it in the bill of exceptions, and state the fact that it was admitted in evidence, and' that a copy of it appears at a particular place in the record. To hold otherwise would be to require a needless encumbrance of the record. We do not say that this is a model-bill of exceptions, but in this case copies of the will were set-out and made a part of the petitions and cross-petitions filed by the various legatees. There were no facts in dispute; all that was asked of the court was to construe certain language in the will, the terms of which were not disputed. And the court was asked to decide what share each legatee took by virtue of the will, and to make an order for the distribution of the estate in accordance with the construction given. No answers were filed to the petition or cross-petitions, no denial of any of the allegations in either of them; so that the facts as alleged in the petitions were admitted, and the court was called upon to make a finding and render judgment on the facts as admitted by the pleadings. There was no necessity for any evidence, and the bill of exceptions states that “immediately upon the filing of the petition and cross-petitions the court announced its readiness to hear the same, whereupon the attorneys for petitioners and cross-petitioners-commenced to argue to the court the question as to what construction should be given to the will.”
While the record shows the proceedings to be somewhat informal, yet we think in this particular case it properly presents the question to this court.
The question presented is one upon which the authorities-are not harmonious.
It has been the almost universal rule of law-making bodies,,
The will in this ease, it may be said, divides the legatees into two classes — the testatrix’s brothers and sisters and the brothers and sisters of Perry J. Brinegar, and the children of her deceased brothers and sisters and the children of the deceased brothers and sisters of Perry J. Brinegar. Perry J. Brinegar, as it appears by the proceedings, and is admitted, was the deceased husband of the testatrix. She first provides for her husband by giving him two thousand dollars, then she provides for her own brothers and sisters and the brothers-
As admitted by the pleadings and found by the court below, there are twenty-five in all who take as legatees. The testatrix has no children; she is disposing of her own estate, and in the disposition of it she seeks to treat her own kindred and the kindred of her first husband alike. It is the natural presumption, unless it appears to the contrary, that she would make them the objects of her bounty in proportion to the degree of kinship existing between her and them, treating, as it clearly appears, the brothers-in-law and sisters-in-law the same as the brothers and sisters of her own blood.
We think the proper construction to be given to this will, and the manifest intention of the testatrix, was to give to the children of each deceased brother and sister of herself and deceased husband the same share that their parent would have taken if living — the child or children of one deceased brother or sister to take the same share that one living brother or sister should take. In legal phraseology, they take per stirpes and not per capita. We are supported by the weight of authority in this construction.
The case of Wood v. Robertson, 113 Ind. 323, was a devise almost identical with this. In that case the will made a devise as follows: “ I give and devise to my beloved wife the farm on which I now reside, as well as all my other real estate of which I may die legally possessed; also, all the personal property of whatever description of which I may die the owner, to have and to hold during her natural life; and at her death it is my will that whatever remains of my estate, whether real or personal property, in the hands of my wife, shall, be equally divided among my children then living and the descendants of such as may be dead, share and share alike, taking into consideration all advancements which may have been made either by myself or my wife.” The court, in construing the will in that case, says : “ We deem it clear that the intention of the testator was to give hischil
In the case of Raymond v. Hillhouse, 45 Conn. 467, the eighth clause of the will is as follows: “All the residue of my estate, real and personal, I give and devise to the following named persons, to be divided equally among them: _ My sisters Rachel and Sarah, the grandchildren of my brother William, and the grandchildren of my deceased sisters Delia and Mary ; meaning by this to include all said grandchildren living at the time of my decease; provided that the share of Elizabeth Raymond, daughter of my deceased nephew James H. Raymond, shall be held by John Beach, of Goshen, in trust for her benefit as hereinafter provided.” There were living at the testator’s decease two grandchildren of the testator’s brother William, three of his sister Delia, and fourteen of his sister Mary; and the question submitted to the court was, whether these grandchildren took under the will per stirpes, or all the legatees took per capita, and the court held they took per stirpes.
In the will in this case there are designated two classes of beneficiaries, viz., the brothers and sisters of the testatrix and her deceased husband, Perry J. Brinegar, living at her decease, and the children of such brothers and sisters as are dead. It is fair to presume that in providing for the brothers and sisters that might be living, she intended to provide for and give to them a certain portion of her estate. The children of deceased brothers and sisters relate to the children of the brothers and sisters who die before the death of the testatrix, hence at the time of the execution of the will it
The words “ to be divided equally ” apply as well to a division among classes as among individuals. Raymond v. Hillhouse, supra.
The rule as stated in Jarman on Wills is, that, when a devise or bequest is made to “ my son A., and the children of my son B.,” in which case A. takes only a share equal to that of one of the children of B., they take per capita. It may be said that it is stated by the same author that this “ mode of construction will yield to a very faint glimpse of a different intention in the context.” 2 Jarman Wills, pp. 756 and 757.
Of this rule the court, in the case of Raymond v. Hillhouse, supra, says: “ If the above rule is so easily set aside, it would seem equally reasonable that it should also yield to the presumption in favor of the natural heirs or next of kin, for a distribution according to the statute, in all cases where the language of the will is consistent with such a distribution, and the real intention of the testator is in doubt.”
This rule has been so far abrogated by the courts of the different States that it no longer has any practical force in the construction of wills, and the weight of authority is to the effect that the beneficiaries take per stirpes, unless the language used in the devise or bequest is such as to exclude that intention. Minter’s Appeal, 40 Pa. St. 111; Fissel’s Appeal, 27 Pa. St. 55; Clark v. Lynch, 46 Barb. 68 ; Vincent v. Newhouse, 83 N. Y. 505 ; Bool v. Mix, 17 Wend. 119; Alder v. Beale, 11 Gill & J. 123.
The court erred in the construction given to the will, and the finding and decision of the court was erroneous.
The judgment is reversed, at costs of appellees, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.