Lockwood's Appeal from Probate

Carpenter, J. The testator, after making provision for his wife, disposed of his property as follows:—“ After the decease of my said wife, I give, devise and bequeath all my estate, wherein the use is herein above given to my said wife as aforesaid, to the children of my nephew, James S. Andrews, who shall be living at the decease of my said wife if she survive me, and, if she do not survive me, then to such children of said James S. Andrews as shall be living at my own decease, and to the children of my niece, Mary E. Coley, who shall be living at the decease of my said wife, if my said wife shall survive me, and if my said wife do not survive me, then to such children of said Mary E. Coley as shall be living at my own decease, to be equally divided between said children, to wit, of said James S. and Mary E., and to belong to them and their heirs forever; and by the term children I mean and intend all such children as said James S. Andrews or said Mary E. Coley now have or may hereafter have, either during my own life or during the life of my said wife. And I further will and direct that if either of said children of said James S. or of said Mary E. shall die before my own decease, or before the decease of my said wife, and leave lawful issue, that such issue shall stand in place of their deceased parent and take the same share of [164] my estate which their deceased parent, if living as afore? said, will be entitled to by virtue hereof.” The will was made in 1869. At that time James S. Andrews and Mary E. Coley, the children of a deceased brother, were the next of kin and sole heirs at law of the testator. The testator survived them, so that their children, when the will took effect, were his heirs at law. James S. Andrews left one child, the appellant, who is now living. Mary E. Coley left two children, one of whom died during the lifetime of the testator leaving children, and the other survived him. The question is whether the legatees take per stirpes or pier capita. Wé think it is reasonably clear that the testator intended that they should take per stirpes. He manifestly regarded his nephew and niece as original stock, being the parents of his legatees. When he made his will they were his next of kin, and naturally enough he would desire to treat them impartially. The reason for passing by them and bestowing his bounty upon their children does not appear. It is not to be inferred however that it was because of any personal dislike, or of superior affection for the children; other reasons may and probably did exist. While the children were the direct objects of his bounty, yet it may have been for the parents’ sake. That is probable from the fact that possible unborn children were placed upon the same footing with those then living. He also provided for the issue of deceased children. That portion of the will operates in behalf of two minor children, one of whom was born about the time the will was made, and the other was born afterwards. It cannot be supposed that that was because of any special affection for them. We may safely assume therefore that a personal regard for the nephew and niece prompted the will. Providing for their children was hardly less gratifying to them than a direct provision for their own benefit; for it is for children that most of us strive and spend our energies. It is neither strange nor unnatural therefore that in the mind of the testator equality should be established between his nephew and niece rather [165] than among their children; indeed that is what we'should expect. Coming then to the terms of the will, we find that they are more in harmony with that idea than with a contrary one. Instead of grouping his grand-nephews and grand-nieces in one class, he divides them into two classes, by describing separately and fully the children of James S. Andrews, and then with equal distinctness and fullness the children of Mary E. Coley, to whom the property is given “to be equally divided between said children, to wit, of said James S. and Mary E.” The word “ between ” rhetorically considered is more applicable to two classes than to a greater number of individuals. While this is not necessarily controlling, yet it is not without weight in a case where other considerations are equally poised; and will have the greater weight if the circumstances aside from that are such as to induce the belief that the word is used in its accurate sense. The fact that the testator provided for the issue of deceased legatees is of no special significance. He is there making contingent provision for another generation in order to prevent a lapse. It is not in contrast with the previous provision but rather in harmony with it. Regarding the children of his brother as the starting point of new lines of descent, makes the will symmetrical and prevents any implication of an intention that the legatees should take per capita. The view we have taken of this case is sustained by the following cases. Gold v. Judson, 21 Conn., 616; Cook v. Catlin, 25 Conn., 387; Bond’s Appeal from Probate, 31 Conn., 183; Lyon v. Acker, 33 Conn., 222; Talcott v. Talcott, 39 Conn., 186; Raymond v. Hillhouse, 45 Conn., 467 We are asked to distinguish this case from some of the cases cited on the ground that the word “ children ” is used instead of the word “ heirs ”; and some cases are cited from other jurisdictions in support of the claim. There is doubtless a technical difference in the meaning of the two words, and yet in common speech they are often used as synonymous. The rule therefore, if it is a rule, should be cautiously [166] applied. No such, rule as yet seems to have been adopted in this state, and so far as it prevails elsewhere we apprehend that it is applied only in nicely balanced cases. This we do not regard as such a case. Another distinction is suggested—that in most of the cases cited the testators were providing for heirs at law. How important this distinction may be in other cases we will not attempt to say. It is sufficient for our present purpose to call attention to the fact that at the date from which this will speaks—the death of the testator—these legatees were his heirs at law. Moreover in this case the intention of the testator appears with reasonable certainty from the language used, so that it is unnecessary to resort to any artificial rule of construction in order to ascertain it. The Superior Court is advised to reverse the decree of the court of probate. In this opinion the other judges concurred.