Post v. Jackson, 70 Conn. 283

Post v. Jackson

70 Conn. 283 | Conn. | 1898

Andrews, C. J.

The demurrer should have been sustained. There is no ambiguity in the language of the codicil. Jackson v. Alsop, 67 Conn. 249; Woodruff v. Migeon, 46 id. 236; Patch v. White, 117 U. S. 210, 224.

The language we are asked to construe is: “I give, devise and bequeath to my nephews and nieces, they being my lawful heirs, all the rest and residue and remainder of my property, real and personal.” If the language had been, I give, devise and bequeath to my nephews and nieces the rest and residue and remainder of my estate, etc., there would have been a complete disposition of the estate, and there would have been no thought other than that the testator gave his estate to his nephews and nieces as a class, and that they *287each took an equal share; that is, that there should be a per capita distribution of the estate among them. If the language had been, I give, devise and bequeath to my lawful heirs all the rest, residue and remainder of my estate, although—as we know from the facts admitted in the answer—the estate would go to the same persons as in the former supposition, it would go to them in their character as heirs, and not in their character as nephews and nieces, and then there would be a per stirpes distribution among them. The attribute of being the nephews and nieces of the testator, and the attribute of being his lawful heirs, applies to the same persons. But a devise to them in the former character would produce a different result from a devise to them in the latter one. Indeed, a devise to them in the latter character would be inoperative. The statute of distribution would control. If property is left to the testator’s heirs in the same manner and proportion in which they would take were there no will, the rule of laiv is that they take as heirs and not as devisees. The former is deemed the worthier title. Howard v. Howard, 19 Conn. 313, 318, Waite, J. Whitney v. Whitney, 14 Mass. *88, *90; Ellis v. Page, 7 Cush. 161; Sedgwick v. Minot, 6 Allen, 171; 1 Jar. Wills, 74.

The testator having by the words first used, as above in the codicil, made a good devise to his nephews and nieces, as such, and to them as a class, it cannot be supposed that he intended by the words following that devise, to make his will wholly void. It seems reasonably clear that the testator intended to have his nephews and nieces share equally in his estate. The words “ they being my lawful heirs,” were used as explanatory of his reason for revoking the provisions of his original will and the first codicil. Other circumstances lead to the same conclusion. The testator was quite advanced in years; he was a widower, and childless ; he had a comfortable estate; he was the last of a family of six children, all Ms brothers and his oMy sister havmg died before Mm, the last one of them in 1883 ; his nephews and nieces had been for more than ten years his oMy kindred by blood. They were all related to him in the same degree. They *288would-naturally present themselves to Ms mind when he was preparing this last codicil, as directly related to him and each equally dear and an object of Ms bounty, rather than as representing to him his deceased brothers and sister. It was nephews and nieces, as such, to whom the testator gave his estate; and not to nephews and Meces as representing deceased brothers and sisters. We tMnk the per capita distribution should be, made.

The Superior Court is advised that a per capita distribution should be ordered of the fund in the hands of the plaintiff as executor.

In this opiMon the other judges concurred.