Durham v. Harris

Fish, C. J. The first item of a will gave to the testator’s widow all his household and kitchen furniture and the rents of his farm during her life. The second item was as follows: “I give and bequeath to each of my daughters, viz., Elizabeth Harris, Talula Jackson, and Anna Foster, four hundred dollars each, and then an equal division of the remainder of my property with my sons, George, James H., Wiley, and Nathan.” The third item provided for the payment of the testator’s debts, and his executor was appointed in the fourth and last item. A petition was filed by the executor, alleging that the widow had died and he had sold the-lands of the estate, and that there was a controversy between the daughters and sons of the testator as to how a given sum remaining in the executor’s hands, after discharging the debts and the payment of $400 to each of the daughters, should be distributed' under the second item of the will, and praying , for direction by the court as to this matter. Held, (1) that the petition presented a proper ease for direction by the court, the meaning of the second item of the will not being so clear as to render unnecessary a construction of this item by the court for the guidance and protection of the executor; (2) that [135] tlie court properly construed this item to mean that the “remainder” therein referred to should be equally distributed among the three daughters and the four sons named in the item, but erred in dismissing the February 23, 1910. Petition for direction. Before Judge Gober. Cobb superior court. December 4, 1908. J. J. Northcutt, for plaintiff. J. Z. Foster, for defendants. petition upon demurrer. Judgment reversed. 'All the Justices coneur.