Hardy v. Roach

76 N.E. 720, 190 Mass. 223, 1906 Mass. LEXIS 1052

• Court: Massachusetts Supreme Judicial Court
• Decided: January 5, 1906
• Status: Published

Opinion

Hammond, J.

The clause in question, printed so as to show the division into paragraphs and the method or lack of punctuation as actually appearing in the will, is as follows;

“ Twelth The balance of My Estate is to be —

devided in Equal portions to Mary Roach Margaret Roach Catherine Roach. 32 Orchard Street Amesbury Mass daughters of my deceased brother Patrick Roach My Brother James Roach of Lyme Connecticut

The children of My deceased Sister Margeret O Brie

Delia O Brien, Catherine O Brien of Lyme Connecticut Joseph O Brien of 337 Washington Street New Haven Connecticut Charles M O Brien —

West Chester New York City”

The question is whether these legatees take per stirpes or per capita. It per stirpes, then the three Roach children take one third, James Roach one third, and the O’Brien children one third; if per capita, then each of the legatees takes one eighth. At the time of the testator’s death there were other children of the testator’s brother Patrick Roach and of his deceased sister than those named. The clause in question distinctly describes the legatees by their respective names, and plainly says that the property shall be equally divided between them; and we see nothing in the method of division into paragraphs, or in the other framework of the clause, to indicate that this language is to be taken in any other than its ordinary meaning. It is plain that the legatees take per capita.

Decree accordingly.