Pitney v. Brown

44 Ill. 363

• Court: Illinois Supreme Court
• Decided: April 15, 1867
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

Aaron Pitney died leaving a will, by which, after directing the conversion of his property into money, and the payment of an annuity to his wife, and certain legacies to other persons, he provides as follows as to the residue:

“ The balance remaining of said fund I hereby direct shall be equally divided between the children of my late brother, Mahlon Pitney, and my brother-in-law, William H. Brown, of the city of Chicago, a large portion of my property having been received through his father and the father of my late wife, Betsey H. Pitney.”

There are three children of said Mahlon Pitney; and the question presented by this record is, whether the residue of the fund referred to in the will is to be divided, one-half to Brown and the other" half to said three children, or whether it is to be divided equally among all the legatees, one-fourth to each'—in other words, whether the distribution is to be per stirpes ox per capita. When the testator directed the fund to be “ equally divided,” did he mean equally as between Brown on the one side and the children of Mahlon Pitney on the other, or did he mean equally as between all the individuals who were to be the recipients of his bounty ?

The language is susceptible of either interpretation; and, if the question were a new one, it would be difficult of decision, though we are inclined to think that equality per stirpes would be the more natural construction. But the point has so often been decided by the courts, both of England and of this country, that there is an established canon of interpretation in regard to these words, from whose authority we do not feel at liberty to depart. With a long line of precedents all pointing in one direction, and on a question of admitted doubt, it is our duty to follow the rule, even if questioning its soundness.

The rule is thus stated by Jarman (vol. 2, p. Ill): “ When a legacy is to the children of several persons, they take per capita, and not per stirpes. The same rule applies when a bequest is made to a person, described as standing in a certain relation to the testator and to the children of another person, standing in the same relation; as, to my brother A and the children of my brother B, in which case A takes only a share equal to that of one of the children of B.” See also Logan v. Hamilton, 1 Cox, 250; Northey v. Strange, P. Wms. 343; Blackler v. Webb, id. 383; Butler v. Stratton, 3 Brown C. C. 367; Warrington v. Warrington, 2 Hare, 54; Payne v. Wagner, 12 Simons; Collins v. Hoxie, 9 Paige, 89; Conner v. Johnson, 2 Hill Ch. (S. C.) 40.

The counsel for appellee, while admitting the general rule to be as stated by Jarman, unless a contrary intent is indicated in the will, insists that such intent is indicated in the present will by the clause referring to the fact that a large portion of the testator’s property came from the father of Brown, who was also the father of the testator’s wife. But we can only regard this clause as giving a reason for making Brown a legatee at all, and not as indicating the extent of the legacy. It is to be remembered that Brown would have taken nothing if there had been no will, and the children of Mahlon Pitney would have taken all. It was natural, then, that the testator should show his heirs, on the face of the will, why he diverted from them any part of his property; but we are quite unable to see how this explanation indicates, in the remotest degree, an intention to give either more or less than the share expressed in other portions of the will.

We must hold, that, by the established rules of construction, all these legatees took per capita.

The decree must be reversed and the cause remanded.

Decree reversed.