Taylor v. Cribbs

SOMERVILLE, J. This was a proceeding in the probate court for the sale of land for division among joint owners, whose title came by devise from their common grandfather. The controversy relates solely to the quantum of interest to be awarded to the respective owners. Item VI of the grandfather’s will is decisive of this question, and it is as follows: “VI. I will, devise and bequeath to. ray daughter Serener Copelin eighty acres of land more or less lying and being in the county and sjtaite aforesaid' and' known and described as follows to wit, the' South E.ast quarter and North West quarter of the South West quarter of. Section No. (11) Township No.-..-14 of Range 15, to have and to hold to my said dáiighter' Serener' Copelin during her natural life and at her death provided she dies without issue to be equally divided between the bodily heirs of Rosanah Fry and Margaret Jackson.” - • • • • [219] The appellant is one of the seven bodily heirs of Margaret Jackson, and the appellees are the five bodily heirs of Rosanah Fry, the two sets constituting the beneficiaries — twelve in number — who are named in the will. The probate court construed the will as giving a half interest to the bodily heirs of Rosanah Fry and a half interest to the bodily heirs of Margaret Jackson, and accordingly apportioned to the five children of the former an undivided one-tenth each, and to the seven children of the latter an undivided one-fourteenth each. This was clearly erroneous. The gift was not to Rosanah Fry and Margaret Jackson, or their children, but directly and solely to their children, for such is the unmistakable application of the phrase “bodily heirs”; and the use of the names of their respective mothers is descriptive merely. “Under a gift to the children of several persons, whether it be to the children of A. and B., or to the children of A. and the children of B., or to A. and B. and their children, or to a class and their children, all take per capita in the absence of an intention to the contrary on the face of the will.” — 30 Am. & Eng. Ency. Law (2d Ed.) 727, and cases cited. There is nothing in the will here exhibited which can possibly support the theory of a contrary intention, and these two classes of children will all take in equal part — per. capita and not per stirpes. The personal property, being inherited from Serena Copelin, an aunt, descended to the nephews and nieces per stirpes, and as to this property the decree of the probate court was free from error. — Code 1907, §§ 3755, 3763. For the error pointed out the decree of the probate court Avill be reversed and the cause remanded for proceedings in accordance Avith the foregoing opinion. Reversed and remanded. All the Justices concur, except Doavdell, C. J., not sitting.