214 Wis. 595 | Wis. | 1934
Summarized briefly the claim of the appellant guardian ad litem is that by the use of the words “unto her issue” the testator intended a distribution per
At the time of the execution of the will, sec. 2270, R. S. 1878, provided for the descent of the title to real property where the owner died intestate. The same rule applies to the distribution of personal property. Under the facts applicable to this case it is provided:
“They (lands) shall descend, subject to his debts, except as provided in the next section, in the manner following:
“(1) In equal shares to his children, and to the lawful issue of any deceased child, by right of representation.”
In Will of Scholl, 100 Wis. 650, at 659, 76 N. W. 616, the word “children” was used instead of issue, and it was there held that it was the intent of the testator that “each of the seven shares bequeathed to the children of deceased brothers and sisters to go in the line of descent till it all reached a resting place, however remote, on a basis of absolute equality between the members of each class, the children of a deceased member of one class forming a new class to take per stirpes the share of such deceased member.”
While the Massachusetts cases are not cited in the opinion to this proposition, the rule of those cases is adopted. While, as indicated in the note referred to, the general rule originally was that under such circumstances the distribution was per capita instead of per stirpes, a very slight circumstance is sufficient to overcome the rule. See In re Farmers Loan & Trust Co. 213 N. Y. 168, 107 N. E. 340. The fact that such circumstances have often operated that way is no doubt what led counsel for the guardian ad litem to the concession that the rule of law had changed since the date of the testator’s death in 1891. We adhere to the decision in the Scholl Case and adopt the logic of the Massachusetts cases, which result in an affirmance of the judgment.
By the Court. — Judgment affirmed.