88 P. 798 | Mont. | 1907
delivered the opinion of the court.
This is an appeal from a so-called judgment of the district court of Lewis and Clark county, determining the ownership of the estate of Henry Klein, deceased, the interest of each respective claimant therein, and the persons entitled to distribution thereof, and also from an order denying a new trial of the issues.
No question of practice or of the propriety of the procedure followed by the district court has been raised by counsel, and none will be considered by this court.
Those portions of the will to be construed are as follows:
“Eleventhly. I give and bequeath the sum of one thousand dollars ($1,000) each, to each one of the employees of the firm of Gans & Klein, at Helena and Butte, Montana, and New York, state of New York, who shall have been in the employ of said firm one (1) year or more previous to my decease.”
“ Twenty-firstly. I give, bequeath, and devise all the rest, residue and remainder of my estate, real, personal and mixed, owned by me at the time of my death to be divided pro-ratably between the beneficiaries named in this my last will and testament. ’ ’
After the admission of the will to probate in the district court, petitions were filed by certain persons, claiming to be legatees under the “eleventhly” clause of said will, praying for a partial distribution of the assets of the estate, and that each of them receive the $1,000 mentioned in the eleventh clause of the will, as one of the employees therein mentioned. Thereupon Jacob Klein, as executor, and also as a legatee under the will, petitioned the court, in accordance with section 2840 of the Code of Civil Procedure, for an order ascertaining and declaring the rights
The executor of the will and certain other persons who are specifically named as legatees therein, took issue with all of the claimants as to their right to share in the estate, and some claimants took issue with others. All of the issues raised are substantially the same, with the exception that it is specially urged that claimant R. A. Fraser cannot take under the will, for the reason that he was a subscribing witness thereto whose testimony was necessary to admit it to probate; there being but one other subscribing witness.
The following matters appear from the record to have been . established:
(1) In the year 1866 Henry Klein and one Louis Gans formed a copartnership under the firm name and style of “Gans. & Klein.”
(2) Some time later Herman Gans was taken into the firm, which continued to do business under the name of Gans & Klein. Herman Gans, however, did not acquire an interest in all of the business theretofore conducted by Henry Klein and Louis Gans; a part thereof being retained by them, the part so retained being still operated under the name of Gans & Klein, making two copartnerships of Gans & Klein, one composed of Henry Klein, Louis Gans, and Herman Gans, and the other composed of Henry Klein and Louis Gans.
(3) The firm of Gans & Klein, consisting of three persons, was engaged principally in the clothing business in Helena and Butte, with an office in New York City. The firm composed of two persons also had business interests in Helena and New York
(4) On July 1, 1896, Henry Klein made his will.
(5) On September 3, 1901, Herman Gans died, and thereafter his widow, Alice M. Gans, represented his interest in Gans & Klein until September 24, 1902, when Louis Gans, Henry Klein, and Alice M. Gans organized a corporation, called “Gans & Klein,” for the purpose of carrying on the business of general merchandising in Montana and New York. On September 9, 1902, a corporation named “Gans & Klein Investment Company,” organized by Louis Gans, Henry Klein, and Alice M. Gans, had taken over'the real estate and investment business that had belonged to the partnership of three.
(6) Henry Klein died November 12, 1903.
On May 18, 1906, the district court found, among other things, that the claimants above named were beneficiaries, legatees, and distributees'under the eleventh clause of the will, and that each of them is entitled to receive $1,000, with interest at eight per •cent from November 12, 1904; that each of them is also a residuary legatee under clause 21 of the will, and entitled to receive from the estate, after payment of the general bequests and all debts and expenses of administration, two three hundred and • thirty-second parts of the residue of the estate, and entered a judgment or order accordingly. By the same judgment or order it was adjudged that certain other beneficiaries named in said will, to-wit, the Associated Charities, Hebrew Congregation Emanu-el, Hebrew Union College, St. Peter’s Hospital, and the Montana Wesleyan University, should be paid their legacies and pro rata shares of the residue of the estate.
It appears that on January 6, 1906, the court had entered a judgment or order favorably determining the rights of certain other legatees, to-wit, Jacob Klein, Rosa Asch, Harry M. Klein, Martha Kahn, Samuel Block, Julius S. Klein, Milton Klein, Susman Klein, Sigmund Klein, Herman Kohn, Carl Greenhood, and Henry Greenhood, and on January 11, 1906, made its judg
On July 9, 1906, the executor and the last-named legatees (with the exception of Herman) made a motion for a new trial of the issues found in favor of Smith, McKusick, Hoepfner, Damon, Graiff, Gans, Merdian, Fraser, Heiman, Reitos, Recore, Merkle, Curtis, Walsh, Davis, and Engelbreeht, by the judgment or order of May 18, 1906, which motion was overruled, whereupon they appealed to this court from the order denying said motion and also from so much of the judgment or order of May 18th as related to the last-named persons, serving notice of such appeal on counsel for all persons in whose favor the judgment or order of May 18th was entered, including St. Peter’s Hospital, Montana Wesleyan University, Associated Charities, Hebrew Union College, Union of American Hebrew Congregations, the Hebrew Congregation Emanu-el of Helena, and the clerk of the district court; also upon counsel for Peter Hardenstein and J. H. Freezer, whose claims were disallowed by the district court, Ernest Hardcastle, assignee of Reitos and Recore, and Jacob Herman, whose claim, was allowed January 11th. Said notice of appeal was also directed to each of said parties and to their counsel, by name.
In arriving at a conclusion in this case, we have been somewhat embarrassed by the antagonistic positions taken by some of the respondents with relation to each other.
Regarding the contention that this court cannot review the order refusing to grant a new trial, because of the complications that would arise in the district court, should a new trial of a part of the issues be ordered, it is sufficient to say that section 2841 of the Code of Civil Procedure expressly gives the right to move for a new trial in these proceedings and provides for an appeal to this court. (See, also, In re Davis’ Estate, 27 Mont. 235, 70 Pac. 721.)
Again, it is urged that appellants cannot appeal from a part of a “judgment.’.’ Paragraph 3 of section 1722 of the Code of Civil Procedure, as amended by Laws of 1899, page 146, relating
In Re Estate of Tuohy, 23 Mont. 305, 58 Pac. 722, this court held that the statutory determinations, called “judgments or orders,” defined in subdivision 3, section 1722, of the Code of Civil Procedure, were not final judgments, but simply “judgments or orders” in probate proceedings. (See, also, In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579, 79 Pac. 244.)
On October 2, 1906, respondents moved this court to dismiss the appeal from the “judgment” herein, on the ground that it is not an appeal from the whole judgment, but only from a part thereof, and no appeal lies from a part of a judgment. The motion to dismiss was submitted on exhaustive briefs of counsel, and was, on November 2,1906, denied; and that is the law of this case on the questions raised by the motion.
On September 21, 1906, certain of these respondents moved this court to affirm the order of the district court denying appellants’ motion for a new trial, for the reason that neither the notice of intention to move for a new trial nor the statement on motion for a new trial was served upon certain other respondents, and because the notice of intention is joint and several, and the executor of the will is one of the moving parties. It was urged by the moving respondents in their brief on the motion, and is again urged in respondents ’ brief and .argument in the case in chief, that the executor had no right of appeal. The motion to affirm was denied by this court on November 2, 1906, and the law of the ease was then settled so far as the reasons urged in the motion are concerned. Let it be noted, however, that these rulings are confined to this action, which is prosecuted under the provisions of sections 2840, 2841 and 2842, of the Code of Civil Procedure.
We have carefully examined all of the testimony as found in the record, and find there is no substantial conflict in the evi
The following statement shows the status of the respective claimants under the will with regard to time of service as employees of Gans & Klein:
(1) Jos. R. Walsh was an employee of Gans & Klein in Butte from March, 1900, to June, 1903.
(2) Merle M. Davis was an employee at Butte from September, 1901, to June 6, 1903.
(3) M. C. Curtis was an employee at Butte from July 28, 1900, to April 14, 1903.
(4) M. L. Heiman was an employee at Butte from April, 1893, to August 26, 1903, when the Butte business was discontinued.
(5) Thos. Reitos was a tailor at Butte from 1898 to August, 1903. He was under a salary, and we shall assume that he was an employee.
(6) Oliver Recore was an employee at Butte from October, 1898, to August 1903.
(7) H. J. Merkle was an employee at Butte from July 1, 1900, to August 1, 1902.
(8) R. A. Fraser was an employee of Gans & Klein, a partnership of two, from February 9, 1895, to the day of Henry Klein’s death. He was also an employee of the partnership of three, and of the corporation “Gans & Klein.”
(9) Wilbur L. Smith, Sanford McKusick, Chas. Hoepfner, and J. O. Graiif were employees of Gans & Klein, a partnership of three, for more than one year prior to Herman Gans’ death, continued during the time Alice M. Gans represented her husband’s estate, and remained in the employ of the corporation up to the time of Henry Klein’s death.
(10) Herbert W. Damon was an employee at Helena from July 3, 1901, to the time of Henry Klein’s death.
The cases of Joseph Gans and John Engelbrecht will be considered separately. We shall first construe the eleventh clause of the will, and later the twenty-first clause.
We hold that Henry Klein intended to reward those employees of the business in which he was engaged under the name of Gans & Klein, who should be in the employ of either the copartnership or corporation of Gans & Klein at the time of his death, and who had been in such employ for one year immediately prior thereto. He was a layman, and did not use the word “firm” in its technical legal sense. “A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full intent, it must have effect as far as possible.” (Civ. Code, sec. 1770.)
“In cases of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.” (Civ. Code, sec. 1771.)
“The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained.” (Civ. Code, sec. 1777.)
“Technical words are not necessary to give effect to any species of disposition by a will.” (Civ. Code, sec. 1781.)
“When applying a will it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his intentions cannot be received.” (Civ. Code, sec. 1793.)
“A condition precedent in a will is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with.” (Civ. Code, sec. 1801.)
The supreme court of Alabama, in the case of Edwards v. Bibb, 43 Ala. 666, declared: “The construction of words in a will is much less technical than the use of the same words in a deed. * * * In a deed, the words govern the intention; in a will, the intention governs the words.”
Our Civil Code, section 2209, employs the phrase “ordinary and popular” in laying down a rule for the construction of contracts. In arriving at a conclusion as to the ordinary and popular meaning of the word “firm,” we naturally first consult the standard dictionaries. Webster defines it thus: “The name, title, or style, under which a company transact business; hence a partnership or house; as the firm of Hope & Co.” The Century Dictionary declares a “firm” to be: “A partnership or association of two or more persons for carrying on a business; a commercial house; a concern; also the name or title under which associated persons transact business.” Nuttall’s Standard Dictionary thus defines the word “firm”: “Partnership or commercial house; or the name or title under which a company transact business.”
It is admitted that Klein was a member of two firms of Gans & Klein, and yet in this eleventh clause he speaks only of the “firm of Gans & Klein.” He evidently intended to include employees of both firms, and yet he used the singular “firm.” If this court is to carry out the intention of Henry Klein, which it must, it cannot give to the word “firm” the restricted meaning contended for by appellants. It is apparent, from a reading of the whole will, that he used the word “firm” as an equivalent for “Gans & Klein.”
When the will was made there was no corporation of Gans & Klein. The concern of which he was a member and part owner was a copartnership. After the death of Herman Gans it still continued to be known as Gans & Klein. It was incorporated as ‘ ‘ Gans & Klein. ’ ’ Many of the employees remained the same
It is fair to assume that at the time of making his will he had no notion as to how long he would continue to live. In order, therefore, to identify those whom he intended to reward for faithful service, and to limit his bounty to those who were steadfast in their allegiance to Gans & Klein, he used the expression “previous to my decease.” We think it would be unreasonable to presume that he intended to leave a legacy to any employee who had been in the employ of Gans & Klein for one year or more at any time previous to his death. If he did, why did he single out Jacob Herman, and designate him as a former employee of Gans & Klein? In the fourteenth clause of his will he bequeathed $1,000 to Jacob Herman by name.
Henry Klein, at the time of making his will, was a widower, without children. He had been in the mercantile business for thirty years. It was his habit to spend the greater fiart of his time in the Helena store where he was surrounded by his employees, many of whom had been with him for years. He took no part in the actual management of the business. He sold goods at times. He was not very well informed as to the-general running conduct of the business for a year or two prior to his death, on account of failing health; but before that time he was decidedly active and well-informed. Fraser testified: “The firm did not make many changes in its employees. They generally held on to their men for years. Changes were decidedly infrequent.” There was no change in the conduct or style of the business consequent upon the death of Herman Gans, or after the incorporation. The same persons who owned the partnership assets formed the corporation. No change was made with reference to the employees. The corporation continued to
It is to’ be noted that the bequests provided were not to be made out of the partnership property. Therefore it is fair to presume that, in using the word “firm,” he had no technical reference to the copartnership.
By the third clause of his will Klein directed that his interest in the “copartnership” of Gans & Klein at Helena and Butte, also his interest in the “firm” of Martin, Gans & Klein at Lewis and Clark county, and all other mercantile interests of his should be continued for a period of not less than five years after his death. Is it not fair to presume that he afterward took occasion to put these “interests” in better shape for continuation by forming a corporation for that purpose?
We think his intent to provide legacies for certain employees of the concern or business of Gans & Klein is apparent from the terms of the will itself, and we have therefore given no consideration to those remarks of his, made after the will was executed, that tend to show that he sometimes referred to the corporation as a firm. The case of Van Nostrand v. Reformed Church in America, 59 N. J. Eq. 19, 44 Atl. 472, however, seems to be authority for the contention that these declarations were competent.
The testimony shows that on July 1, 1896, when Klein made his will, there had been more than one hundred employees of Gans & Klein who were each with the partnership of three more than one year at different times. At the time of making his will, Henry Klein was looking to the future. He knew, of course, that in the conduct of the business some of the employees might prove derelict, some might die before he did, and others
It is contended by the Butte respondents that this court has no authority to supply words omitted from the will, and this is undoubtedly correct. It is not necessary to insert the word “next” before the word “previous”-to arrive at the conclusion reached by us. On the contrary, we should be obliged to reject the words “previous to my decease” in order to arrive at any other or different result. Henry Klein evidently attached some significance to the words last quoted, and it is for this court to ascertain, if possible, what that significance was—not to ignore the language. Of course, they could not be in his employ after his decease, and, had he intended to bestow a legacy on all employees who had at any time worked for the concern one year, he would undoubtedly have stopped with the phrase “one year or more.” It seems clear to us that the words “previous to my decease” mean something in this will; that they are words of limitation, and were so employed by the testator. The cases cited by the learned counsel for the Butte employees are not in point, as no one of them has reference to a will bearing these words of limitation.
We therefore hold that every employee of either the copartnership or the corporation of Gans & Klein, who was actually in such employ at the time of Henry Klein’s death and had
E. A. Fraser was an employee of Gans & Klein, a partnership of two, at the time of and for many years prior to Henry Klein’s death, and he therefore takes as a beneficiary under clause 11, provided he is not disqualified by reason of being a necessary witness to the will.
Section 1729 of the Civil Code is as follows: “Sec. 1729. All beneficial devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to his will.”
Section 1727 of the Civil Code reads as follows: “Sec. 1727. If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompeteney, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved. ’ ’
By the common law of England, after the conquest, no estate, with a few minor exceptions, could be disposed of by testament. The statute of wills (Stats. 32 Henry VIII, c. 1) provided for the disposition of real property by will. The construction placed upon this statute by the courts was so loose that innumerable frauds and perjuries crept into practice; to remedy which the statute of frauds and perjuries (Stats. 29 Car. II, e. 3) was enacted, providing, among other things, that a will should be subscribed in the presence of the testator, by three or four
Chief Justice Cassoday, of the supreme court of Wisconsin, who was for many years a lecturer on “Wills” in the law department of the University of Wisconsin, and whose reputation as a jurist of ability is established, says (page 71 of his work on Wills): “At common law, no person could give testimony in any controversy in which he himself had any pecuniary interest, however slight. This, prior to Stats. 25 George II, chapter 6, precluded and rendered incompetent to become a subscribing witness to a will, every person who would take any beneficial interest under the will.” Section 1729 of our Civil Code is a codification of the principle embodied in the statute last mentioned, extending the safeguard, moreover, to “all beneficial devises, legacies, and gifts whatever.”
Let it be remembered that these are statutes of frauds, to prevent frauds and perjuries on the part of the attesting witnesses to a will. The competency must exist at the time of attestation; section 1729 providing that subsequent incompeteney shall not prevent the allowance of the will. (See, also, Page on Wills, sec. 363; In re Sullivan’s Will, 114 Mich. 189, 72 N. W. 135; In re Holt’s Will, 56 Minn. 33, 45 Am. St. Rep. 434, 57 N. W. 219, 22 L. R. A. 481.)
In the case of Doe d. Hindson v. Hersey, 4 Burn’s Ecc. Law, 27, the inquiry arose whether the credibility of the witness was to exist at the period of the attesting act or of the judicial inquiry into its sufficiency. Lord Camden held to the former
In Re Will of Lyon, 96 Wis. 339, 65 Am. St. Rep. 52, 71 N. W. 362, the supreme court said: “She was competent to testify to the facts at the time the will was executed, and that satisfies the universal test. ”
It is true, of course, that the actual testimony of the witness by word of mouth is taken when the will is offered for probate, and, if the witness is alive and within the jurisdiction, he should be produced. He may stultify himself by testifying that the facts set forth in his attestation certificate are not true; but Lord Mansfield once said that a man who would do so ought to be placed in the pillory rather than in the witness box.
We decide, then, that the question of Fraser’s competency as a subscribing witness has reference, in point of time, to July 1, 1896, when he attested the will.
Was the devise to him of such a nature as would have made him an incompetent witness under the statute of frauds, 29 Car. II? Does section 1729 of the Civil Code operate to deprive him of Ms legacy ? If Henry Klein had died the day after the execution of his will, Fraser, if not a subscribing witness thereto, would have taken his legacy, because he had been in the employ of Gans & Klein for more than one year immediately prior to that date.
In the case of Holdfast v. Dowsing, 2 Strange, 1253, the court held that where a devise of twenty pounds was given to Elizabeth, the wife of John Hailes, who was a witness to the will, the said John was not a credible witness, within the intent of the statute of frauds, to prove the fact. The court said: “It was objected that nothing vests till the death of the devisor, and therefore at the time of the attestation he had no interest. But
In the Case, of Trinitarian Congregational Church & Society, 91 Me. 416, 40 Atl. 325, the court held that where one Kogers left $100 and certain personal property to one Folsom, and. in ease Folsom died previous to the testator, then to one Agnes T. Hooper, and Folsom did so die, Agnes, who was a subscribing witness to the will, could not take the devise. The statutes of Maine, upon which the case was decided, are substantially like our own. The court said: “While she (Agnes) did not take an absolute, certain interest under the will, it would have become absolute and certain in an event which might happen. * * * The true test is whether the will itself conferred, directly or conditionally, a beneficial interest upon the witness. By this will Agnes T. Hooper was to receive a pecuniary benefit upon the happening of an event which might happen, and had the interest and hope, at the time of the attestation, which such provision held out, to sustain the will. * * * If the will provides a pecuniary benefit to the attesting witness, though dependent upon the happening of an event which may happen, he has a beneficial interest under it, in contemplation, of law; and if the subsequent event upon which the interest depends does not happen, that fact does not relate back and restore competency. It is important that the safeguards which the law has thrown around the execution of wills should not be withdrawn or weakened; and to that end a wili which provides a pecuniary benefit, absolute or contingent, to a legatee, should not be witnessed by such legatee. He is interested, and therefore not credible or competent. Some of the decisions appear to have gone to the verge of the law in the matter of attestation, in the effort to sustain wills. But we have found -no case, nor been cited to any, in which a legatee, upon a contingency such as this, has been held a competent attesting witness. We regard it unwise, and inconsistent with sound public policy and the rights of interested parties, to further extend the exceptions to the common-law
We decide that Fraser cannot take his devise under the will, for the reason that he was a necessary subscribing witness to the same.
We shall consider the claims of John Engélbreeht and Joseph Gans together. In the ease of Engelbrecht we find that he sewed hydraulic hose for Gans & Klein. He was paid by the yard. He worked for them a number of years prior to 1901. With the exception of some small pieces that he did not put down in his boob, he sewed no hose between July 3d and December, 1901. All the work he did in 1902 was performed between May 12th and August 6th. In 1903 he began work on January 28th, and the last work he did was on May 15th. He testifies: “It was the habit of Gans & Klein, the firm, prior to 1901 before the death of Herman Gans, to figure up the amount of yards that I sewed, and then pay me so much per yard, or post it to my credit on the books, and give me credit for the amount that was coming to me. I drew money whenever I wanted some, but my right to draw money depended entirely upon the number of yards that I sewed. When I sewed hose in 1902, I settled up with the bookkeeper at that time. Herman Gans figured up the amount that was due me when he was there. After the death of Herman Gans the bookkeeper did, and Charles Hoepfner he had general charge of the hose. Charles Hoepfner and the bookkeeper then would check up with me the number of yards that I had sewed, and that would be turned over in the office, and I would be credited with so much money, an amount equivalent to so many yards at the price per yard, whether it was single, double, or triple stitch. That was done also in 1903. I never drew a monthly salary from the firm, so much per month, nor a weekly salary of so much per week.”
Joseph Gans was a brother of Louis Gans, Henry Klein’s partner. For eighteen years prior to 1891 he was either a clerk or manager of Gans & Klein’s Helena store. In 1891 he ceased to be a regular salesman, but, as he says, was around there at
The foregoing statement is taken from the testimony of the claimant himself. It is very doubtful whether the services he claims to have performed were rendered to Gans & Klein. It seems clear that any service rendered was not as an employee of Gans & Klein at Helena. Henry Klein appears never to have recognized any obligation that called for remuneration. In fact, it is apparent, from their own testimony, that neither Engelbrecht nor Joseph Gans was an employee of Gans & Klein.
The word “employee” imports some sort of continuous service. Mr. Justice Brewer, in the case of Louisville etc. R. Co. v. Wilson, 138 U. S. 501, 11 Sup. Ct. 407, 34 L. Ed. 1023, says: “The terms ‘officers’’ and ‘employees’ both alike refer to those in regular and continual service. Within the ordinary accepta
In Sehouler on Wills, section 566a, it is said: “A devise or legacy is not unfrequently given to a servant or servants of the testator. Where a gift is made to such as may answer that description, and without identifying particular persons as the objects of one’s bounty, courts incline to limit its benefit, if not to strict ‘household’ servants, at least to such as spend their whole time in the master’s employ; not extending the gift, in its scope, to persons who come back and forth for casual employment and work also for others.”
Again, in Page on Wills, we find this language: “A devise to ‘such persons as shall be in my employ at the time of my death’ does not include persons who were hired a day or so at a time to assist regular servants.” (Section 534.) “Gifts to servants, unexplained, include only those directly and regularly employed.” (Rood on Wills, sec. 460.) See, also, Metcalf v. Sweeney, 17 R. I. 213, 33 Am. St. Rep. 864, 21 Atl. 364, where the court held that a woman who worked thirty-seven days in 1885, one hundred and thirty-one in 1886, sixty-five and one-half in 1887, thirty-four in 1888, and thirty-five in 1889, as a laundress, housecleaner, and the like, was not a servant in the employ of a testator at his death. The court said: “It seems to us that the services rendered by her lack the continuity, the fixity, and permanence of relation, that are needed to give validity to her claim. ’ ’
We hold that neither John Engelbrecht nor Joseph Gans can take a legacy under clause 11 of the will, as neither was an “employee” of Gans & Klein.
It may be argued that Klein intended to reward his employees by giving each $1,000 and nothing more, dividing the balance of the estate among his relatives. There is some force in this suggestion; but the answer is that we must determine his intention from what he said in his will. We are not allowed to indulge in conjectures based upon probabilities. It is urged that these employees cannot take any portion of the residuary estate, because they are not “named” in the will. Jacob Herman was a former employee, and he is named. By the sixth clause, $10,000 each was given to “the two daughters of ” a deceased sister; by clause 7, $5,000 was given to “the son” of a deceased sister; and by clause 9, $5,000 is given to “the widow” of a deceased brother. None of these legatees are named; that is, called by name. If it is necessary that a legatee should actually be called by name in order to take under paragraph 21, then these last-mentioned relatives cannot get the benefit of that clause, while Henry Greenhood, Carl Greenhood, Leopold Cohn, and Herman Cohn, second cousins, mentioned in paragraphs 15, 16 and 17, can.
We hold that all who take legacies under clause 11 also take pro-ratably under clause 21. .
We have carefully considered the able briefs of counsel in this matter and conclude that this opinion covers all of the points respectively raised herein. Any question not directly decided is deemed to be incidentally settled in passing upon the main questions considered. As appellants have abandoned the question of interest, we shall allow the same, as did the district court.
The cause is remanded to the district court of Lewis and Clark county, with instructions to modify the order of May 18, 1906, by disallowing and dismissing the claims of R. A. Fraser, Joseph Gans, Ernest Hardcastle (as assignee of Thos. Reitos and Oliver Recore), Merle M. Davis, Jos. R. Walsh, Millard C. Curtis, H. J. Merkle, M. L. Heiman, and John Engelbreeht.
The costs of this appeal shall be paid out of the estate.
Respondent Fraser’s petition for rehearing denied March 6, 1907.