Jackson v. Baker

93 So. 469, 93 So. 463, 207 Ala. 519, 1922 Ala. LEXIS 202

• Court: Supreme Court of Alabama
• Decided: May 18, 1922
• Docket: 2 Div. 762.
• Status: Published

Opinion

ANDERSON, O. J.

The will of A. O. Baker, after making a specific disposition of certain property to certain designated beneficiaries, further provides:

“All of the rest of my property, real, personal and mixed, in Alabama to be sold inside of three years after my death, and the proceeds equally divided among my heirs, namely: Charles Oscar Baker and his children; James Eairfowl Baker, George Oonrad Baker; Daniel Doe Baker’s children; Belzora Ida French; Omar Newman Baker and children; Mary Olivia Baker; Ella Leolia Baker — each of the children of Daniel D. Baker to have his or her share as he or she arrives at the age of twenty-four years; the devisees and legatees of this clause to take per capita.”

The above provision not only contemplates that the proceeds be “equally” divided among those subsequently designated by name, or class, but to avoid any misunderstanding further provides that said devisees or legatees shall take,“per capita.” That the proceeds shall be “equally” divided between the dev-isees and legatees therein named and that they shall take “per capita” excludes all idea of an intention by the testator that any of them should take per stirpes, and to so hold would violate the plain letter of the will as well as the only reasonable intention to be gathered from the language used.

' -We have considered the authorities cited by counsel for appellants, especially Dollander v. Dhaemers, 207 Ill. 274, 130 N. E. 705, 16 A. L. R. 15, and note, and find none of them opposed to the present holding. Even if we concede the soundness of the holding in the Dollander Case, supra, the clause under consideration is unlike the present one.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and THOMAS, JJ., concur.