Johnston v. . Knight

Faircloth, C. J.: 1. Was the power given by will by Pennina or Nina McDowell, to Mary L. Howell, executed by the will of the latter? When it is not done in express terms, by reference to the power or the subject, then a construction must be given by looking to the whole instrument and the intent- therein, for the intent must govern. If the donee of the power intends to execute, that intention, however manifested — whether directly or indirectly, positively or by just implication — will make the execution valid and operative. “The general rule is settled that a general residuary devise will operate as an execution of a power to dispose of *124 property by will, unless there is something to show that such was not the testator’s intention.” Cumston v. Bart lett, 149 Mass., 243. Not only is there nothing to show a contrary intention, but the fact that Mary, the donee, devises to the identical persons and no others, who were designated in Nina’s will, produces the conviction that she was then intending to exercise the authority given by her sister. This might have been a mere coincident, but we think it was intentional and not accidental, among near relations. She could not have devised this property to any one else, and we think that a residuary clause includes all property which the devisor could dispose of. 2. Do the devisees tak& per stirpes or per capital Nina authorized the division to be made according to the will of her sister Mary, who said, “that the balance of my estate be equally divided between William T. Knight, Pattie McDowell and the children of Joseph P. and Margaret L. Sugg and the children of Elisha McDowell.” These words require a distribution per capita. This has been the rule since Ward v. Stowe, 2 Dev. Eq., 509, down to the present time, with numerous intervening decisions. The words “equally divided” do not absolutely control in all instances, but yield only when other language of the will or the manifest intent requires it. The argument based on the justice and natural affection does not change the rule. That would disturb other parts of the will. Testators usually divert the line of distribution from that marked out by the law for descent and distribution, and no doubt do so “in the light of surrounding circumstances.” Judgment Affirmed.