53 Barb. 662 | N.Y. Sup. Ct. | 1869
The only question presented ' for consideration arises upon the following provision of said will: “I wish my personal and real estate to be appropriated equally to the benefit of my wife, Emily H. Brewer, and of my children, Seabury Doane Brewer and Elorence Kipp Brewer.” It is contended by the counsel for the deféndant, Emily H. Brewer, that she is entitled, under the foregoing provision of said will, after her dower is assigned, to one half of the residue of the property, real and personal, of her said husband.
The counsel for the plaintiffs, the executors, insist that the said Emily H. Brewer is only entitled, after the assignment of her dower, to one third of said estate.
We regard the law too well settled to admit of a reasonable doubt, in regard to the construction which this provision of said will should receive, in determining the rights of the respective parties in the division of said estate. It ■is very clear that the parties named take per capita and not per stirpes, and therefore each is entitled to one third of the residue of the estate after the dower interest of the widow, Emily H. Brewer, is satisfied. In Myres v. Myres, (23 How. Pr. Rep. 410,) Justice Bockes, in a well reasoned opinion, has fully and satisfactorily discussed this question. (See also Collins v. Hoxie, 9 Paige, 89; Bunner v. Storm, 1 Sandf. Ch. 358; Murphy v. Harvey, 4 JSdw. Ch. 131.) There is not an expression contained in the will which is not in harmony with this construction, or which indicates that the testator intended to make any other disposition of his property.
Judgment should be entered declaring the rights of the" parties in accordance with the foregoing, and pursuant to sections 372, 373 and 374 of the Code.
Miller, 'Ingalls and Sogeboom,
Justices.]
