Hill v. Bowers

A testator left the residue of his property “ to the children of my brother A. by hia present wife, and the survivors of them, and to the children of my nephew B. and the survivor of them, their heirs and assigns forever.” At the death of the testator, A. had eight children, and B. had two. Held, that the children of A. and of B. took par capita and not per stirpes.

Bill in equity by the administrator, with the will annexed, of Josiah Bowers, to obtain the instructions of the court, and alleging the following facts: The will of the testator contained the following clause : “ Fourth. I give, devise and bequeath to the children of my brother Joseph by his present wife, and the survivors of them, and to the children of my said nephew Albert, and the survivor of them, all the rest and residue of all my property and estate, and the remainder and reversion thereof, after the decease of my wife and sister Ann aforesaid, to them, their, heirs and assigns forever.” At the death of the testator there were living eight children of the testator’s brother Joseph, “by his present wife,” and one of them has since died without issue. There were also living two children of the nephew Albert, both of whom are living. The testator’s wife and sister Ann died after him. The administrator requested instructions as to whether the remaindermen took per capita or per stirpes. The answers admitted the allegations of the bill, and the case was reserved by Morton, J., on the pleadings, for the consideration o: the full court.