Harris's Estate

The opinion of the court was delivered, January 5th 1874, by Sharswood, J. — The cases cited in the opinion of the learned court below undoubtedly sustain the position that as a principle of construction wheretó a testator gives to his next of kin in classes, leaving it doubtful in what proportions they are to take, he will be presumed to have had the familiar rule of the Statute of Distributions in his mind, and the several classes will take not per capita but per stirpes. But all artificial rules of this kind must yield to the intention of the testator, whether expressed or implied. A comparison of Baskin’s Appeal, 3 Barr 304; Witmer v. Ebersole, 5 Id. 458; and Risk’s Appeal, 2 P. F. Smith 269, will evince this very clearly. Now whatever might have been the case had this residuary bequest been “ unto my brother William Harris and sister Anna Vance’s heirs, the balance of my goods and chattels and credits and lands equally,” we think the exception which follows indicates unmistakably that the testator had not in his mind two classes of legatees. “ Except Rev. John A. Vance, he must have all that he owes me at this time over and above the said heirs of William Harris and Anna Vance’s heirs.” Now the Rev. John, A. Vance, being one of the children of Anna Vance, stood in that class, and had the testator regarded these next of kin in. two classes, it is most reasonable to presume that the preference given to him would have been over the other heirs of that class, and not as it is over both classes. The exception seems to give a construction to the word “equally ” immediately preceding, “ equally, [454] except Rev. John A. Yance,” so as to preclude the interpretation which may be considered as sanctioned by Risk’s Appeal, — that equally was to be applied only to the members of each class. Decree reversed at the costs of the appellee, and record remitted to the Orphans’ Court of Lawrence county, that a decree may be there entered conformably to this opinion.