50 Ky. 32 | Ky. Ct. App. | 1850
delivered the opinion of Hie Court.
This case presents for construction the following clause in the will of George Downing, viz;
“All the residue of my estate whether real personal or mixed, not herein otherwise disposed of, I desire may be equally divided after my death between my brother John Downing, my two sisters Elizabeth Cameron and Nancy Gibson and the children of sister Nelly Lachland, to them and their children forever, it being my desire that the portions allotted to my brother John and my two sisters and the children of my deceased sister Nelly Lachland shall be made as nearly equal 'as possible, both in kind and in amount.”
Two questions are made with respect to the interests created by this clause, 1st, do the words “ and their children forever,” give an interest to the children of the devisees previously designated, or are they merely' words of limitation or perpetuity annexed to. the previous devise? And 2d, does the previous devise entitle the children of the deceased sister Nelly Lachland to have each an equal portion with the living brother and sisters, or does it entitle them to such portions collectively ?
Upon the first question we think there is no room for doubt. The division is in the first place directed to be
As to the second question, we think there is scarcely more room to doubt the testators intention, although upon the words of the clause it may not be susceptible of such full and satisfactory proof. But where the testator shows such solicitude to effectuate that justice which consists in equality of distribution among those who were equally the objects of his bounty and affection, we should deem it proper and indeed necessary, in the absence of any peculiar fact or expression of a contrary tendency, to presume the testator’s feelings and benevolence flowed in the usual channels, and to construe all ambiguous expressions in conformity with this presumption. Then as no reason appears why the testator who is so particular in desiring equality between his living brother and sisters, should place the children of a deceased sister each upon an equality with the living brethren, we should expect and require some clear and unequivocal indication of such an intention, in order to establish its existence. The phrase “the children of my deceased sister,” &c., denotes a class, and although it indicates that each individual of that class stands equally in the favor of the testator, it does not in itself import that each of them stands equal with others of a different class who are nearer to the testator,' and just as near as the ancestor of the children would herself have been if living. On the contrary when these children are referred to as a class or collective body with
Wherefore the decree is affirmed.