11 R.I. 84 | R.I. | 1874
We are of the opinion that the eighth clause of the will of Thomas Andrews is to be construed as a bequest of the residue of his estate, in distinct seventh parts, to such of the children of his seven brothers and sisters as might survive his wife, one part being given to each brother's or sister's children so surviving. We cannot construe the bequest as a bequest by the testator to his nephews and nieces as a class, for the will itself divides them into seven classes, and gives to them in varying and indeterminate proportions, according as the classes to which they severally belong may vary in numbers at the death of his wife. It results from our construction, that the seventh part which was given to such of the children of the sister, Alice Smith, as should survive the wife, has lapsed, all of her children having died before his wife; for we do not think this is a case in which grandchildren can be permitted to take under the designation of children. The seventh part so lapsed must be distributed as intestate estate.
In regard to the five hundred dollars and interest, which is directed to be deducted from the seventh given to the children of Clarissa Richmond, we are of the opinion that the sum when deducted will again fall into the residue to be distributed as such, though we adopt this opinion not without some hesitation.
A decree may be entered to provide for a distribution of the residue in accordance with these views.