Williamson v. Williamson

186 N.W. 827, 45 S.D. 180, 1922 S.D. LEXIS 21

• Court: South Dakota Supreme Court
• Decided: February 8, 1922
• Docket: File No. 4743
• Status: Published

Opinion

PODREN, J.

This is an appeal from a judgment construing the last will and testament of John Williamson, deceased. The clause in the will that is in question, which is the only disposing clause in the will, reads as follows:

“All of real and personal property I bequeath to my brothers and their families.”

Testator left surviving him three brothers, James, ’Henry, and William. James was a bachelor and had no family at all. Henry had a wife and four children. William had a wife and two children ; in all eleven persons. The sole and only question in dispute is: Is the estate to be divided into eleven equal parts, and one part given to each of the eleven persons composing the three families? Or is it to be divided into three equal parts and one part given to each family? In other words: Is the estate to be distributed per capita or per stirpes?

[1] It is the contention of the appellants that the last three words “and their families” should be held to be void for uncertainty, and that the will should be construed to mean that the estate should be divided into three equal parts, and that one of such parts should go to each brother if living at the time of testator’s death, but that in case of the death of either of the brothers prior to the death of the testator then the share that would have gone to such deceased brother should go to his family. But this position cannot be maintained under appellants’ theory of the case, because if the clause in question is held to be void then it must :be left out of consideration altogether, and there is no reference whatever to the families; and in case of the death of either of the brothers prior to the death of the testator the part that would have gone to such deceased brother would be distributed under the statute of distribution. But by the use of the words “and their families” it is manifest that the testator intended that each of the members of his brothers’ families should take a share of the estate as a direct gift from him rather than by right of succession from his brothers at their death.

In support of their contention that donees under the will should take by the group or family rather than as individuals, appellants cite: Raynolds v. Hanna (C. C.) 55 Fed. 783; Walker v. Griffin, 11 Wheat. 375, 6 L. Ed. 498; Fisher v. Skillman, 18 N. J. Eq. 234; Youngs’ Appeal, 83 Pa. 63; Osburn’s Appeal, 104 Pa. 644; Paul v. Ball, 31 Tex. 21; Ross’ Ex’r v. Kiger, 42 W. Va. 411, 26 S. E. 193; Preston v. Brandt, 96 Mo. 558, 10 S. W. 78; Silsby v. Sawyer, 64 N. H. 580, 15 Atl. 601; Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70; In re Whittaker’s Estate, 175 Iowa, 718, 157 N. W. 135; Fields v. Fields, 93 Ky. 619, 20 S. W. 1042; Allen’s Succession, 48 La. Ann. 1036, 20 South. 193, 55 Am. St. Rep. 293; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302.

[2] While the language used in the distributing clause in all these cases is more or less similar in import to the language used in this case; still upon examination of those cases it will be found that in the distributing clause itself or in some other part of the will, or from the general context of the entire will, there is something to indicate that it was the intent of the testator that the beneficiaries should take per stirpes rather than per capita. In this case there is 'no such language; nothing to indicate that the testator intended that his beneficiaries should be treated other than as a single group and all share alike in his bounty.

“If the gift ;be to A. and B. and their children, or to a class and their children, or to the children and grandchildren of A., every individual coming within the terms of the description, as well children as parents, will take an equal portion of the fund; that is, the distribution will be made per capita.” Jarman on Wills (6th Ed.) 1712.

This rule is applicable to this case, and it is immaterial whether we treat the “brothers” as one class and their “families” as another, or treat them all as a single group. In re Morrison’s Estate, 138 Cal. 401, 71 Pac. 453. And to the same effect are the following authorities: Hoadley et al. v. Wood, 71 Conn. 452, 42 Pac. 263; Bailey et al. v. Hospital (N. J. Ch.) 102 Atl. 7; Neil v. Stuart et al., 102 Kan. 242, 169 Pac. 1138; Guild v. Allen, 28 R. I. 430, 67 Atl. 855; Scott’s Estate, 163 Pa. 165, 29 Atl. 877; McKelvey v. McKelvey, 43 Ohio St. 213, 1 N. E. 594; Perry v. Brown, 34 R. I. 203, 83 Atl. 8; Kling v. Schnellbecker, 107 Iowa, 636, 78 N. W. 673.

In the absence of anything in the will to take it out of the above rule, it is our view, based on the language used in the will, that the testator intended to distribute his estate equally among the individuals composing the families of his three brothers. ’But nothing that is said in this opinion is to be understood as indicating our view as to what share each individual would have taken, provided one or more of the children of decedent’s brothers had died prior to the death of decedent and had left surviving children.

The judgment appealed from is affirmed.