
    Norma F. Butler vs. Isaac Chase, Admr. d. b. n. c. t. a., et al.
    
    APRIL 30, 1930.
    Present: Stearns, C. J., Rathbun, Sweeney, Barrows, and Murdock, JJ.
   Murdock, J.

This is an appeal from the Probate Court of the town of Middletown to the Superior Court for the county of Newport and is before this court on an agreed statement of facts under provisions of Section 4, Chapter 348, General Laws 1923.

The question of law raised by the agreed statement of facts involves the construction of the will of James Chase who died in 1872, leaving a will dated May 29,1860, with a codicil thereto dated March 5, 1864.

The part of said will pertinent to the present case is as follows: “I give, devise and bequeath the use, improvement and income of the farm in Middletown, containing about forty acres and a half, which farm I purchased of the late John Mitchell, to my four grandchildren, children of my daughter Hepsibah M. Heath, deceased, viz.: Francis M. Heath, James C. Heath, Sarah M. Heath, and Annie C. Heath during their natural lives. At their decease, I give, devise and bequeath said farm to their children, if they,, or either of them, should leave any, to them, their heirs, and assigns forever. If my said grandchildren, children of my said daughter Hepsibah, deceased, should leave no children or child, then in that case I give and devise said farm to all my grandchildren then living, in equal shares, to them, their heirs and assigns forever.

“I also give and bequeath to my said grandchildren, children of my daughter Hepsibah, deceased, during their natural lives, the income of ten shares in the Pocasset Bank in Fall River, R. I. At their decease I give and bequeath said ten shares to their children then living, to be equally divided, if my said four grandchildren should leave no children or child, then I give the said ten shares to all my grand children then living equally between them.”

The codicil after reciting the substance of the above provisions concludes as follows: “Now, whereas, my granddaughter, Sarah M. Heath, that was, has since died, and left one child. Now if that child should die without lawful issue, then, in that case, I give, devise, and bequeath the share that that great-grandchild would have heired from his mother to the other three grand-children, viz., Francis M., James C., and Annie C. Heath, their heirs and assigns forever. ”

Of the three children of the testator’s daughter Hepsibah who survived the testator Francis M. Heath died in 1878 'leaving as his sole surviving child Norma F. Butler, the appellant in the present case. James C. Heath died in 1910 leaving three children, Willie C., Samuel W. and Ernest W. Heath, who are the appellees. Annie C. Heath, the last surviving child of the said Hepsibah died in 1928 intestate and without issue. Ralph Gifford, the child of Sarah M. Heath referred to in the codicil died in 1864 intestate and without issue.

It is the contention of Norma F. Butler that as the sole surviving child of Francis M. Heath she is entitled to one half of the proceeds of the sale of said stock in the Pocasset Bank, now the Massasoit-Pocasset National Bank, while the appellees contend that the gift over of said stock was to a class which consists of themselves and the appellant and consequently each is entitled to a fourth of the fund.

The will is inartistically drawn and the intention of the testator is not clear. In 1880, on the petition of James C. Heath, this clause of the will, so far as it relates to the real estate, was construed by this court. Heath, Petitioner, 12 R. I. 479. Durfee, C. J. said of this will; “for very likely the testator himself did not clearly comprehend the possible result of the complicated devise which he was maldng . . ; .” The court found the key to the testator’s intention in the codicil to the will, saying; “It recites that since the making of the will one of the grandchildren has died, leaving a child, and provides that, if that child dies without lawful issue, then the share which he 'would have heired from his mother’ shall go to the other three grandchildren. Of course the language is inaccurate. The child would have heired nothing from the mother, for the mother was to have only an estate for life. But the meaning is evident.' The word is used to denote, not inheritance, but succession under the will, and indicates that it was in the mind of the téstator that, the mother being dead, the child if he lived, would succeed to the share which had been devised to her for life, to wit, an undivided fourth part of the estate . . . .”

. The court accordingly found that Ralph Gifford was entitled under the will to one undivided fourth part of the farm in fee simple and that Norma F. Heath, as sole surviving child of Francis M. Heath, was likewise entitléd to an undivided fourth part in fee simple.

In our opinion this interpretation, as to the disposition under the will of the real estate, applies as well to the bank stock. It will be noted that the language of the codicil indicates no intention on the part of the testator to make a different disposition of the bank stock from that of the real estate. He includes both in the phrase “the share that that great-grandchild would have heired from his mother.”

It is urged that the intention to give to his great-grandchildren as a class is to be found in the words of the gift over to the great-grandchildren “to be equally divided.”

In a will so inartistically drawn over emphasis of any particular phrase must be avoided. The meaning is to be found in the instrument as a whole and to construe these words as contended for by the appellees would be inconsistent with the intention of the testator as revealed in the codicil.

Sheffield & Harvey, for appellant.

Frank F. Nolan, for appellee.

Our decision is that the great-grandchildren of the testator take per stirpes and not per capita and that Norma F. Butler is entitled to one half of the proceeds of the sale of said bank stock and the appellees, Willie C., Samuel W. and Ernest W. Heath are each entitled to one-sixth share.

The papers in the case with our decision certified thereon are ordered sent back to the Superior Court for the county of Newport for further proceedings.  