
    NEWTON FORD, EXTR., v. T. B. IREDALE ET AL.
    Jackson,
    April Term, 1877.
    WILLS. CONSTRUCTION. Devisees and legatees take per capita. Case in judgment.
    Where the words of a will are as follows: “I devise, will, and • direct that my . . . sisters Elizabeth, Jane, and Sarah, if living', receive and ha.ve one-fourth of my estate, after all debts and expenses are paid, and the remaining' three-foxirths to be equally divided between them, my three above named sisters, and my nephews and nieces, children and grandchildren, of my deceased brother William, and my deceased sister Mary.” the three sisters Elizabeth, Jane, and Sarah take first one-fonrth of the whole of the estate after payment of debts and expenses, and then they and the said children and grandchildren of the deceased brother and sister take an equal share per capita of the remaining- three-fourths.
   Deaderick, C. J.,

delivered the opinion of the court:

This bill was filed by tbe executor of T. A. Iredale, deceased, to have a construction of tbe third clause of his will. That clause is in the following language:

“Article Third. I devise, will, and direct that my dearly beloved and widowed sisters, Elizabeth R. Pearl and Jane M. Maynor and Sarah B. Keene,” if living, “receive and have one-fourth of my estate, after all debts and expenses are paid, and the remaining three-fourths to be equally divided between them, my three above-named sisters/ and my nephew and nieces, children and granchildren of my deceased brother, William Iredale, and my deceased sister,’ Mary Bosworth.

The chancellor declared the proper construction of this clause of the will to be, “that complainants, Elizabeth R. Pearl, Sarah B. Keene, and Jane M. Maynor, as tenants in common, are entitled, first, to one-fourth of said Thomas A. Iredale’s estate, after paying debts and expenses; and, secondly, to one-half of the remaining three-fourths of said estate, leaving the remaining half of said three-fourths to go and be distributed, per capita, amongst the children and grandchildren of William Iredale, deceased, and Mary Bos-worth, deceased, the defendants herein.”

This construction we think erroneous. The proper construction is that the three widowed sisters, after payment 'of debts and expenses, take one-fourth of the estate, as held by the chancellor, but the language of the will and intention of the testator give the remaining three-fourths in’ equal parts to the three widowed sisters and the cMldren and grandchildren of William and Mary, the deceased brother and sister of the testator — that is, each of the three widowed sisters takes the same share of the remaining three-fourths of the estate that each of the children and grandchildren of the deceased brother and sister takes.

The chancellor’s decree as to the last part of said clause will be reversed, and the cause will be remanded for further proceedings. The costs of this coiirfc will be paid by the executor out of any funds in his hands belonging to> said estate.  