Best v. Swift
Best v. Swift
Opinion of the Court
delivebed the opinion of the coubt.
Charlotte Best was the mother of six children, five of whom were living when she died, in 1885. The remaining one, a son, had died several years before his mother, leaving two children. She was the owner of but little personal estate, but owned real estate of the value of some $25,000 or more. The proper construction of her will is the sole question presented on this appeal. After providing for the payment of her debts and funeral expenses, she directs that her children, or such of them as may be unmarried, shall continue to live together at the family residence until the youngest should arrive at the age of twenty-one years; that the sons George and Philip should continue the business of keeping and operating the .barbershop and bathroom attachments; and to. them she gives the furniture, fixtures, and good will of that business, and the full use of the entire house, free of rent, for a family residence, for all the children who may be unmarried and choose to dwell there until the youngest reaches the age of maturity. To her son Charles she gave the sum of $300, to be paid to him as soon as the executor may deem best. To her two daughters, Charlotte and Mena, she gave the parlor and bedroom furniture, wearing apparel, etc., and provided that, if any of the children under twenty-one should be sick, the expenses were to be paid out of the general estate. The remaining clauses of the will, except the tenth, which merely named her executor, furnish the grounds of this controversy, and are as follows: “Clause 7. It is my will
, It is the contention of the appellants that the testatrix intended to give to her children proper her entire estate, save the pittance set apart for the two grandchildren in the •'eighth clause; that their father had died in 1876, and she knew that he had left these two grandchildren, yet she nowhere mentions them except in the eighth clause. It is argued that she meant, if all of her children living when :she made her will, in 1885, were living when the final distribution took place, the proceeds of the sale of the property should be divided equally among them, but if any of .them were dead, leaving issue, that issue to take the share’ rof the .parent. We can not concur with counsel in this contention. The testatrix contemplated and made prowision for a division of her estate at a future time, when some of her children would be living, and some of them probably dead, leaving issue. The children then living were to take, but not only so. The heirs of their body, respectively, were also to participate-in the division. It can not be she meant “the heirs of the body” of-the children then living. They would have no heirs. She referred, therefore, to the heirs of the body of such of her children as might be dead. We perceive no reason for saying she intended to limit the devise to the heirs of the body of a part only of her children. She meant, therefore, “the heirs of the body” of all her children who might be dead, leaving such lieirs. We think, further, that by providing against an equal division of the proceeds of the real estate, as was done by the use of the expression, “except as hereinafter stated,” the testatrix clearly indicated that she numbered the grandchildren of her deceased son in the class among whom the division was to be made; otherwise,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.