Smith v. Ashurst

34 Ala. 208

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

STONE, J.

Mr. Jarman, in his admirable work on Wills,, (vol. 2, p. 111,) says: “Where a gift is to the children of several persons, whether it be to the children of A. and B., or to the children of A. and the children of B., they takeyier capita, and not per' stirpes.”

The same1 rule applies where a devise or bequest is made to a person described as standing in a certain relation to the testator, and 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., though it may be conjectured that the testator had a distribution according to the statute in his mind. And of course it is immaterial that the object of the gift are the testator’s children and grandchildren: as where a legacy was bequeathed “ equally between my son David, and the children of my son Robert.”

The principle stated above is well sustained by authorities, and must be regarded as the general rule. — See Blackler v. Webb, 2 Pr. Williams, 383; Jourdan v. Green, 1 Dev. Eq. 270; Duffee v. Buchanan, 8 Ala. 27; Vanzant v. Morris, 25 Ala. 285; Ex parte Leitch, 1 Hill’s Ch. 152.

The case of Howard v. Howard, 30 Ala. 391, is decided on the principle stated above.

This mode of construction will yield to a very faint glimpse of a different intention in the context. — 2 Jarman, side page 111. If, however, the context gives no evidence of a different intention, the general rule stated above must prevail.

We have carefully considered the provisions of this will, and can find no authority for taking this out of the general rule. On the contrary, we think the will, considered in its various devises and bequests, furnishes strong persuasive evidence that' Prances Ellen Johnson and the children of Richard Coker should take, under the residuary clause, equally and per capita..

[2.] We concur with the probate court in holding that the children of Richard Coker, born after the death of .the testator, take nothing under this will. — Jourdan v. Green, 1 Dev. Eq. 270, and authorities on brief; 2 Jar. on Wills, side pages 74-5; Vanzant v. Morris, supra.

Eor the error in dividing the residuary bequest per stirpes, and not per capita, the judgment of the probate court is reversed, and the cause remanded.