
    DESCENT OF RESIDUE PER. CAPITA.
    [Superior Court of Cincinnati, Special Term.]
    Charles M. Cist, Executor, v. The Central Trust & Safe Deposit Company, Executor, et al.
    Decided, March, 1901.
    
      Wills — Construction of Where Residue is Bequeathed to Nephews and Nieces Share and Share.
    
    Wm. C. Bare by his will, among other bequests, bequeathed to his sister, Mary B. Cist, one hundred thousand dollars and to his other sister, Jennie E. Cist, one hundred thousand dollars. The will then declared: “The residue of my estate I give to my nephews Charles Frank Cist, William C. Cist and my niece Letitia Holmes Cist, share and share alike.” Held: That the residue of the estate descended to his nephews and nieces not per stirpes but per capita, and that each was entitled to one-third of the residue.
    Smith, J.
    This case has been submitted to me on an agreed statement of facts, and seeks a construction of the residuary clause in the will of William C. Bare. The will is as follows:
    “I, William Caldwell Bare, of the City of Cincinnati, State of Ohio, do make, publish and declare this my last will and testament.
    “I give, devise and bequeath to my executors hereinafter named to be by them held in trust, all my property of whatever kind and wherever situated, to be held by them for the following uses and purposes, to-wit:
    “The income thereof is given to my mother, Sarah A. Bare, for her sole use and benefit during her natural life. Upon the death of my mother I give and bequeath to the Protestant Episcopal Hospital for Children, Mt. Auburn, City, Ten Thousand Dollars. To Christ Episcopal Church for the Endowment Fund, Five Thousand Dollars. To the Old Men’s Home, Walnut Hills, Five Thousand Dollars. To my sister, Mary B. Cist, One Hundred Thousand Dollars. To my sister, Jennie E. Cist, One Hundred Thousand Dollars. The residue of my estate I give to my nephews, Charles Frank Cist,. William C. Cist, and my niece, Letitia Holmes Cist, share and share alike.
    “The division of my estate, as herein provided, is to be made by my executors without the aid of any court.
    “I desire that my partner, Geo. W. Ward, be allowed three years, or such part thereof as he may desire, in which to settle up our present business carried on under the name of M. Bare & Co.
    “I appoint my friend, Geo. W. Ward, and my brother-in-law, C. M. Cist, executors of my will. The powers and trust hereby given to said Ward and Cist, as executors and trustees, are given to each and both jointly. I give to them full power to sell, lease and dispose of all or any portion of my estate, devised and conveyed to them on such terms and in such manner as they may determine. I also give them full power to make partition of any property in which I am interested with others as tenant in common or otherwise. I also give them full power to execute and deliver all deeds and instruments in writing necessary to carry out all provisions of this my will.
    “I desire that no bond be required from said Ward and Cist, my confidence in them being complete.
    “I direct that no appraisement be made of my personal estate, and that no inventory thereof be made or filed with the Probate Court. .
    “In testimony whereof I have hereunto set my hand and seal the sixteenth day of June, 1891.
    “W. C. Bare.
    “Witnesses:
    “Jno. R. Ingram,
    . “M. A. Bryant.”
   Frank Cist and William C. Cist are the children of Mary B. Cist. Letitia Holmes Cist is the child of Jennie E. Cist.

The claim of Letitia Holmes Cist is that she is entitled to one-half of the residue of the estate; while the claim of the executor of the estate is that she is entitled to one-third of the residue.-

The argument of counsel for Letitia Holmes Cist is that the intention of the testator is to divide the residue of his estate between the families of his two sisters, and that the construction which divides the gifts among his nephews and nieces per stirpes instead of per capita, so that Frank Cist and William C. Cist receive one-half, and Letitia Holmes Cist another half of the residue, is in accordance with this general intention of the testator, and therefore the true construction of his will.

As evidencing the intention of the testator to divide the bulk of his estate among the two familiés, the circumstance that each of his two sisters is given one hundred thousand dollars is relied upon together with a large number of authorities in which it was held that the division of the residue of an estate under the particular wills involved should be per stirpes, and not per capita.

In the cases referred to the language of the bequest is usually not to individuals named as such, but to “children” or “heirs” or to “A” and the children of “B” or to the “children of A and the children of B.” Mason v. Baker, 2d Kay & Johnson, 567; Osborne’s Appeals, 104 Penna. St., 637; Henry v. Thomas, 118 Ind., 23; Fields v. Fields, 20 S. W., 1042, and many other eases.

Whether I should be willing to follow the above mentioned authorities in ease the language used in this will was the same as that used in the wills in these cases, it is not necessary for me to say, because the language in this case is quite different.

But all rules for the construction of wills yield to the intention of the testator, and in this case there is nothing doubtful in the language employed. The beqeust is made to the three in their individual capacity. It is not made to them as “children” or “heirs” of any one. They are not spoken of as “children” or “heirs” of any one in any part of the will, neither is there anything to indicate that the testator considered them in any other relationship than their 'relation to himself, which relation in each instance was the same. He calls them his nephews and niece, and it is in that relationship and in that capacity in which each was equal that he makes them his legatees. Huston v. Crook, 38 O. S., 330.

For the reasons stated I am of the opinion that Letitia Holmes Cist is entitled to one-third of the residue of the estate of William C. Bare, deceased.

E. W. Cist, for C. F. and W. C. Cist.

Henry M. Cist, for Letitia Holmes Cist.  