
    M‘Neilledge against Galbraith and others executors of Thomas.
    Bequest of tate to the tesíf^^her cease to he tween herand The estate, death,tsTobe J^d^are*™ alike,percasisters of living at his’ such brothers were dead,138 the father
    Such becoustVued af wor(i in it.
    Case Stated.
    ON the 12th October, 1816, Alexander Thomas, the testator, made his last will and testament in writing, and thereby, after making sundry devises and bequests, devised as follows, to wit: — “ Further, it is my will, that my beloved wife, Eleanor Thomas, shall receive only the interest on the remainingpart of my real and personal estate during her life, and at her decease to be divided between her and my poor relations equally.” He constituted his said wife and the defendants in this cause, his executors and died; On the 12th May, 1817, the will was duly proved, and letters testamentary granted thereupon to the defendants. On the 13th March, Eleanor Thomas, widow of the testator, died. At the time of the testator’s death, there were living of his relations, two brothers and three sisters, namely ; Daniel the. plaintiff, Peter M'-Neilledge, Isabella M'Far land, Ann MFarland, and Mary Clark. To each of these there were legacies given by the will, which have been paid. There are a number of his brother’s and sister’s children; but no claim has been made by any except the following, to Daniel Campbell M'-Neilledge and Catherine M'-Neilledge, are the only children of fames M'-Neilledge, who was ■ a brother of the testator, and died previous to the date of the will: and Alexander M'-Neilledipe, who is a son of the tiff. The testator left no father or mother. At the .decease of the testator’s widow, there were living of her relations, two brothers and two sisters, namely; Wiliiam Burns, Robert Burns, Margaret Waimvright, and Catherine Burns. Also a mother named Helen Burns; but no father. Margaret Waimvright is dead, and has left one child, John B. Wain-wright. The widow of the testator left also at her decease, uncles and aunts, to wit, James Burns, Robert Burns, Catherine Burns, Isabella Burns, James Keir, and Jane Keir, who have claimed as poor relations.
    There is a balance in the hands of the defendant, o$ 2,944 dollars 53 cents in cash, and a bond and mortgage for 2,700 dollars, and interest on it, being the residue of the personal estate of the testator.
    The plaintiff, previous to the commencement of this suit, filed a refunding bond with sureties. The executors have given public notice, of the will, by advertising in Scotland and the United States.
    
    The questions submitted ,to the Court upon this case are; 1st. Whether the plaintiff is entitled to recover a part of the residue of the estate, bequeathed by the will of Alexander Thomas ? And if he is, 2d. In what character he is so entitled to recover ? And it is agreed that upon the decision of these questions by the Court, if it shall be decided that the plaintiff is entitled to recover a part of said residue, it shall be referred to an auditor to be appointed by the Court, to state the amount, in conformity with the Court’s decision, and judgment shall be entered thereon.
    If the Court shall be of opinion, that the plaintiff is not entitled to recover, then judgment to be entered for the defendants.
    
      Chauncey, for the plaintiff in error, contended,
    that by poor relations, the testator meant those who would have taken by the Statute of Distributions ; and that there should be an equal division between the poor relation's of the husband and those of the wife. He cited Roach v. Hammond, Prec. Ch. 401. Whithorne v. Harris, 2 Vez. 527. Tho
      mas v. Hale, Cas. Temp. Talb. 251. Devisne v. Mellish, 5 Vez. 529. Anon. 1 P. Wms. 327. Brunsden v. Woolridge, Amb. 507. Edge v. Salisbury, Amb. 79. Green v. Howard, 1 Bro. Ch. Cas. 32. Isaac v. De Friez, Amb. 595. Widmore v. Woodroffe, Amb 636. Blackler v. Webb, 2 P. Wms. 383. 1 Rop. Leg. 134, 135.
    
      y. A. Smith and P. A. Browne, for the defendants in error, contended,
    that half went to the relations of the husband, and half to those of the wife; that they took per stirpes, because it would make a much more equal division, and therefore must be supposed most agreeable to the testator’s intent. They cited 4 Bac. Abr. 350, tit. Legacy. 2 Ch. Rep. 77. 179. Cas. Temp. Talb. 251. 1 Bro. Ch. Rep. 31.
    Chauncey, in reply.
    The testator had no intention to make two distinct classes, namely, his own, and his wife’s relations. If he had so intended, he would have given a moiety to each. All the individuals who take, must take equally. The testator’s brothers and sisters were probably as dear as his wife’s mother.
   The opinion of the Court was delivered by

Duncan J.

Who were the persons intended by the testator, in the distribution of this residuary personal estate, which he directed to be divided between his own poor relations, and the poor relations of his wife equally, on his death ? This bequest is to be construed, as if the word poor were not in it. There is no distinguishing between the degrees of poverty ; for if degrees of poverty were to be taken into consideration, and govern the construction, it would ope.n a field of inquiry into the relative poverty of relations, rendering it very difficult and embarrassing, if not impracticable, ever to arrive at a just conclusion who were poor. The devise to relations is of itself not free from ambiguity, and Courts have been obliged to lay hold of the Statute of Distributions as the standard, to prevent an inquiry which would be infinite, and would extend to relations ad infinitum. It is therefore confined for convenience sake, and that Statute is the rule and measure of distribution. Widmore v. Woodroffe, Amb. 636. But though it be the rule by which relations are to take under so general description, yet the wills under; whjch they claim will be the guides as to the proportions into which the fund is to be divided. That depends on the fair . , , 1 . ' construction of each will. Did the testator intend, that whoever should take, should take per stirpes, and not per capita; that this residue should be divided into two equal parts, one to go to his own, and the other to his wife’s relations ? I cannot think either was in the view of the testator. He did not intend to constitute two prcepositi, one to consist of his own, and the other of his wife’s family ; but that the relations of both were to come in equally ; one description ; one class ; persona designates; as much so, as if he had directed a division nominatim, between them equally. Strict representation was not in contemplation, but equality. Since the decision of Thomas v. Hale, Talbot's Cases, 251, the effect in a will, where the devise is to relations, is to cause a division per capita. Where the bequest is to relations generally, the expediency of the application of the rule of the Statute, is manifest; but when the testator explains himself, and says he does not intend that his relations should take unequal parts, hut take equally, as this is a lawful iatent, and clearly expressed, it is the duty of the Courts ’to effectuate it. Let us illustrate this by a few instances. A legacy to the relations of A. and B. equally; all take, children and grand-children per capita. So a bequest to a brother and the children of a deceased brother ; though under the Statute of Distributions they would take per stirpes, by express bequest they take per capita. A devise to the relations of A. and B.; they would take as joint tenants a joint interest in the fund. A devise to them equally; they take as tenants in common in equal portions. The Statute of Distributions, though used as a rule to designate the persons entitled under the denomination of relations, yet is no guide as to the quantum. Perhaps this rule which is adopted from necessity, lest the devise should be void for uncertainty, does not, in all cases, quadrate with the intention of all testators: perhaps it may not be altogether consistent with the views of this testator ; yet it must prevail universally, or it is of no use. Here, if it be not the rule, the wife’s relations could take nothing. They must call it in to support their claini; for there is no other rule known to the law in dispositions to relations, than the Statute ; they cannot go out of it, or beyond it. If there had been no mother, then the brothers and sisters of the wife, and the children of deceased brothers and sisters, would have fallen in with the Statute ; but the life of the mother intercepts the distribution to them : they cannot take either as next of kin of their sister or aunt, or jure representationis. If they could not take under the Statute, if the property had been the wife’s own, they cannot take under the denomination of relations. The residue of the personal estate (for the Court give no opinion how the real estate is to go) is to be divided share and share alike, per capita between the brothers and sisters of the testator» living at his death, and the children of such .brothers and sisters as were then dead, and the mother of the wife. The distribution is deferred to the death of the wife, but that does not prevent the interest from vesting at the death of the testator. I had a strong desire to bring in the relations of the wife, who stand in the same reRtion to her, that the testator’s relations stand to him. That was the only difficulty I had. But, on further reflection, I cannot see how this can be done, without introducing some other rule than the Statute ; for the mother cannot be excluded ; and if she takes, she takes as the relation of her daughter, and as the relation of the daughter, takes all. She is the sole relation, that can come in, and excludes all other relations under the Statute, and as the Statute is the only rule, under which any can claim under the devise, if they can not take under the Statute, they cannot under this will.  