
    Seay, adm'r. vs. Winston et als.
    
    1. The fifth clause of Goodall’s will directed that certain property at the death of his wife should bo equally divided between the children of his brothers and his sister: It is held that the children were the direct objects of his bounty and that all the nephews and nieces of his brothers and his sister took equal shares of the estate.
    2. The 10th clause directed that “the residue of my available funds shall be equally divided as above except the portion which would fall to my nephew, W. Y. Goodall and my nieces, Ann Eliza 0. Roberson and Martha Coleman, I wish to decend to their heirs respectively.” It is hold that the word heirs is a word of purchase and not of limitation, and that the children of E. 0. Robertson, N. Coleman and W. Y. Goodall took^per stir-pes and not per capita.
    
    Z. G. Goodall made his last will and testament and died in the county of Sumner.
    The executors whom he appointed declined acting and E. T. Seay administered with the will annexed.
    The will contained the following clauses:
    1st. I give and bequeath to my wife, Eliza B. Goodall, all the negroes of which I may die possessed (with the exception hereafter to be made) during her natural life, with discretionary powers to hire out any of them at any time should she be disposed to do so.
    2d. I give and bequeath to my wife as above named, the tract of land on which I now live, with all and every of its appurtenances during her natural life, with like discretionary powers to rent out any portion of it should she think proper to do so. The above named tract of land being made up of purchases 'from various individuals and supposed to contain in all between eight and nine hundred acres.
    3d. I give and bequeath to my wife as above named, all the stock of every description of which I may be possessed, all the farming tools of every description, all the household and kitchen furniture, and all the corn, wheat, oats, and meat, and every other description of provision, together with the crop which may be growing or not gathered, during her natural life,
    5th. It is my wish that all the property above named, shall be equally divided between the children of my brothers, Jonathan D. Goodall, Isaac Goodall, William Goodall, and of my sister Betsy'Winston, except a negro girl, Sally, which if my mother-in-law survive, my wife shall remain with her, my said mother-in-law, so long as she may live, and at her death to be divided as above mentioned with my other property.
    10th. All the residue of available funds, of which I may die possessed, after defraying funeral expenses &c., I wish my executors to divide equally between the heirs of my brothers and sister, as above mentioned, except that the portion which would fall to my nephew, William Y. Goodall, and my nieces, Ann Eliza O. Robertson and Martha Coleman, I wish to descend to their heirs respectively.
    Seay filed his bill in the Chancery Court at Gallatin, praying a construction of the clauses of the will, and that instruction be given him how he shall execute the trusts of the will.
    The following decree was entered in the case.
    “Be it remembered that this cause came on for hearing before the Honorable B. L. Ridley, Chancellor, &c. upon the proof and pleadings in the case, which proof of each party is excepted to by the other and the parties ask the court to put a construction upon the will of the said Z. G. Goodall and direct how the estate shall be under the said will, distributed, upon the various clauses and points made in the pleadings. The court is of opinion and decrees accordingly as follows: un-under the fifth clause the children of the brothers and sister of the testator take the estate in that clause specified per capita, each to receive an equal portion thereof: upon the tenth clause of the will, the court construe it to mean, that the children of his brothers and sister take in like manner with the exception of Wm. Y. Goodall, Eliza O. Roberson and Martha Coleman, the children of whom take absolutely the portions of their respective parents described in the said tenth clause. The court in further construing the 7th and 8th clauses of the will touching the land is of opinion that the land directed to be sold and which has been sold under the decree'of this court, the sale of which is hereby confirmed, that the proceeds of said sale be divided equally among all of said children as directed in the fifth clause. The court is further of opinion that in those various clauses devising to the children of his brothers and sister his estate, to be divided after the death of the tenant for life, that the said legacies were vested in said children; and William Goodall, Junior, having died after the death of the testator, having a wife and posthumous child, his portion descends to them under the act of distribution. The court is further of opinion that the child of W. Y. Goodall, and its mother are entitled under the said clauses of the will, except the 10th clause, to receive the portion going to Wm. Y. Goodall, the dower in the land and her part of the personalty, she one third and the child its portion of the land absolutely, but the residue under the 10th clause shall be alone received by the child, she having no interest therein. The parties not desiring an account to be taken in this cause, but there being various infants • who will be entitled to receive them under the will, this cause is retained in the court, for the purpose of approving bonds to be taken and the authority of persons to receive their said portions, all which will be done under the direction of this court.
    The matter of the petition of E. T. Seay being 'before the court, having been consolidated with this cause, asking the construction of the court in regard to that clause in the will, item three, bequeathing to the widow, stock, corn, provisions and other articles for life; the part of the same having been sold and the report filed, which report being excepted to, with the exception of the sales of the consumable articles, is confirmed by the court with this modification; the court is of opinion that the widow takes a life estate in all of said things with the exception of such things as are consumable in their use, such as corn, wheat, pork and hogs. The courtis of opinion in such articles, she takes an absolute estate and $35 of such consumable articles having been sold as specified in said sales, she is entitled absolutely to that. The balance of said sale, she will receive and account to the remaindermen at her death without interest, being the sum of $181. It is further decreed that the cost of these suits be paid out of said estate and fi. fa. issue against said administrator.
    From this decree the defendant appealed.
    
      Hall, for complainants.
    
      
      John J. White, for defendants,
    Catharine K. and Ann Eliza Goodall, said: — It was clear from the language of the will; that the distribution of the legacies was to be per capita. The testator has expressed his intention precisely, in clear and positive terms, and there is no legal objection to it; and no inconvenience arising from an adherence to such intention, so expressed, it must be regarded. 3 M. & S. 30. The will evidently contemplates a perfect equality in the division of his property among his nephews and nieces. The language used excludes the idea of the division being according to families, or that each family is to take as a class.
    The legacy in the 5th clause is direct to the children of his brothers and sister, and in the 7th, 8th and 10th clauses, to the heirs of his brothers and sister, with the exception in the 10th clause — and then there is to be an equality in the division among them.
    The presumption is, that the testator would have made this equality among his nephews and nieces, for they were all equally near to him in blood, and of course, in attachment, unless there should be something in the will to repel that presumption, and there is not. But on the contrary, the language used, “between the children,” &c., and “between the heirs of my brothers,” &c., shows -it was his affection or his duty to them that influenced the bequests.
    We see too from different clauses of the will, that he was acquainted with his nephews and nieces, and that he could discriminate between them, and if he had intended any other inequality than what we see in these clauses, he would have made it.
    A very important inference may be drawn from these clauses. In the 6th he gives to one of his nieces a negro girl “over and above” what he gives to the other “heirs above named”. In the 7th clause he gives to one of his nephews and to the husband of one of his nieces an additional interest in two tracts of land, upon their complying with the condition there specified. And in the 10th clause he directs, that the portion which would be going, under that clause, to one of his nephews and his nieces there mentioned, shall take a different direction, by being divided among their heirs. Now, is not the inference irresistible when he first directs a perfect equality among his nephews and nieces, and then afterwards makes some exceptions, that he did not intend to disturb this equality beyond these exceptions?
    In the latter part of the 10th clause, where it is said, that the portion which would fall “to my nephew William Y. Goodall and my nieces Ann Eliza O. Robertson and Martha Coleman, I wish to descend to their heirs respectively;” the term descend is not to be understood technically — it means merely to go to their heirs, that is, their children. 4th Term R. 294-6. And consequently Ann Eliza Goodall, the child of Wm. Y. Goodall, is entitled, in her own right, to a portion of this residuary fund.
    The term heirs, which is used in these different clauses, evidently means the same thing as children, the word used in the 5th clause, and indeed they refer to it. And when it is thus used, it does not mean that the legacy is given to them as a class, but to the individuals and their representatives — and consequently it is here a word of purchase. See 2 Luvintz, 223-232; 3 Bligh’s Rep. 26; 7 Yerg. 96; 8 Yerg. 4. When we look at the 5th, 6th, 7th, 8th and 10th clauses of the will in connection, there can be no doubt the testator intended an immediate vested interest in each one of the legatees. By the 5th clause, he gives a vested interest in remainder, after the termination of the life estate of his wife. But the 7th and 8th clauses which dispose of the proceeds of the land directed to be sold, and the 10th, of the residuary fund, contemplate an immediate division of this fund, and it is, therefore, a present vested interest.
    Authorities are abundant to support the view which we take of this will. See Hawks’ Law and Eq. 604; Stow vs. Ward and others, 2 Devereux’s Eq. 509; 1 Murph. Law and Eq. 383, Whitehurst vs. Prichard; 10th Ves. Lady Lincoln vs. Pelham, 166-176; 2 PeerW’ms, 383-4 Blachlér vs. Wébb; 1 do. Northey vs. Strange, 340; 2 Vernon, 705, Wied vs. Bradbury; Thomas vs. Hale, Cases Temp. Tal. 251; Butler vs. Stratton, 3 Brown’s Ch. Cases, 367.
    
      
      Guild, for defendants.
   Turley, J.

delivered the opinion of the court.

On the 18th day of March, 1844, Z. G. Goodall made and published his last will and testament, and shortly thereafter died.

After several specific bequests to his wife, he directs, by the fifth item of his will, that all the property previously specified, at the death of his wife, shall be equally divided between the children of his brothers Jonathan D, Goodall, Isaac Goodall, "William Goodall, and of his sister Betsy Winston.

By the 6th item, he gives to his niece Barbara D. Goodall, over and above the heirs above named, a negro girl Melvina.

By the 9th item, he gives to his wife five thousand dollars of his available funds, to be disposed of in any way she may think proper.

And by the 10th item, he directs all the residue of available funds of which he might die possessed after defraying funeral expenses, to be divided ¿qually between the heirs of his brothers and sister, as mentioned in the 5th item, except that portion which would fall to his nephew William Y. Goodall and his nieces Ann Eliza O. Robertson and Martha Coleman, which he wishes to descend to their heirs respectively.

This petition is filed by the administrator, asking of the court a construction of the 5th and 10th clauses of the will, in order that he may be enabled to execute the trust therein contained, according to law.

The difficulty in the construction of the 5th clause, is, whether the children of the devisor’s brothers Jonathan D. Goodall, Isaac Goodall, William Goodall, and his sister Betsy Winston, take the property therein specified, per stirpes, or per capita, that is, whether each set of children is a class representing their father and mother, and as such, entitled to one share of the estate, be they few or many; or whether it is a direct personal bequest to each individually, and the estate, therefore, to be divided into as many shares as there are nephews and nieces.

We do not think there is any serious difficulty in holding, that the devise is to the nephews and nieces individually, and not in classes, and that they, therefore, take per capita, and not per stirpes, each individual being entitled to one equal portion of the bequest.

We do not see, that argun.cnt can make it plainer than the words of the bequest; “all the property above specified, at the death of my wife, shall be equally divided between the children of my brothers Jonathan Goodall, Isaac Goodall, William Goodall, and my sister Betsy Winston.” Now, it is not his brothers and sister that are the object of his bounty, but his nephews and nieces, each of whom were equally near in blood to him, and no doubt equally beloved by him; then, there could have been no motive or wish to divide them in classes; whereby the division of the bequest might, and no doubt would have-been most, unequally made; a thing which he expressly provides against, for he says, “it shall be equally divided among them.”

We are, therefore, of opinion, that the administrator, with the will annexed, when he shall come to distribute the property bequeathed in the 5th clause of'the will, shall do so equally among all the nephews and nieces, the children of Jonathan Goodall, Isaac Goodall, William Goodall and Betsy Winston, per capita, and not per stirpes”

The difficulty in the construction of the 10th clause of the will is, as to that portion of the bequest which would, under its general wording, fall to W. Y. Goodall, Ann Eliza O. Robertson and Martha Coleman, but is supposed, by special exception, to be given to the children; and whether this be so, or not, is the question. This clause, as we have seen,-directs, “that all the residue of available funds of which I may die possessed, after paying my funeral expenses, be divided equally between the heirs of my brothers and sister, as above mentioned, except that portion which would fall to my nephew, W. Y. Goodall, and my nieces Ann Eliza O. Robertson and Martha Coleman, I wish to descend to their heirs respectively.

We are of opinion, that the word heirs, as here used, is a word of purchase, and not a word of limitation; and that, therefore, the children of W. Y. Goodall are entitled to his share of the bequest, and so likewise, the children of Ann Eliza O. Robertson and Martha Coleman, to their shares respectively. But this only applies to the bequest of the “residue of the available funds,” bequeathed in the 10th clause of the will, and does not affect the bequest in the 5th clause, to which W. Y. Goodall, and Ann Eliza 0. Robertson and Martha Coleman are entitled, in the one right equally, with the other nephews and nieces.  