#### *William Crow and Others, Children of William Crow, v. Thomas Crow and Others.

February, 1829.

Wilis — Constructions—Per Stirpes — Per Capita"* — Case at Bar. — John Crow bequeathed, that the balance of his slaves should be divided equally between his children, to wit, the heirs of W. C. [a deceased son of testator], naming them, seven in number. T. O., M. C. and J. C. Isons of testator], and the children of his deceased daughters, M. J. and S. C. but the children of his daughters M. J. and S. C. should take, respectively, only such part as their mothers respectively would take if still alive, that is to say, a child’s part. Hui.d, that the seven children of the deceased son took equally per capita with the testator's three living sons, and the children of his two deceased daughters took per stirpes, each, their mother’s part.

This case originated in the county court of Essex, whence it was carried bjr appeal to the superior court of chancery of Fredericksburg, and brought thence by appeal to this court.

John Crow, by his last will and testament, after having by previous provisions, disposed of his land and some slaves and other property, bequeathed as follows: “I devise and direct, that the balance of my slaves shall be equally divided between my children, to wit, the heirs of William Crow, namely, William, Robert, Patsey, Nancy, Henry, Ennis, and John, (heirs of William Crow deceased,) Thomas, Moses, John Crow, and the children of my deceased daughter Massey Jones, and the children of my deceased daughter Sarah Crane, to them and their heirs; but the children of my daughter Massey Jones are to take only such part as their mother would take if she was still alive, that is to say, a child’s part; and in like manner, the children of my daughter Sarah Crane are to take only such part as their mother would take, if *34she was still alive,'that is to say, a child’s part.”

William Crow deceased, and Thomas, Hoses and John Crow, were sons of the testator. It appears from the will, that the testator hadc-one child, Mrs. Whooston, who was living at the date of his will, and that he had had another *child who was then dead, neither of whom is mentioned in the bequest above quoted. He made a distinct provision for Mrs. Whooston ; and as to the property given her, he provided, that “if she should die without a living heir, it should return to his estate.”

The county court and the chancellor both held, that the residue of the testator’s slaves should be divided into six parts, or shares, and one share allotted to the seven children of William Crow deceased, among them, one to each of the testator’s sons, Thomas, Moses and John Crow, one to the children of Mrs. Jones, and one to the children of Mrs. Crane. The children of William Crow appealed to this court.

Johnson, for the appellants,

said, that under the first part of the bequest, to the seven children of William Crow by name, to the three sons of the testator by name, and to- the children of Mrs. Jones and to those of Mrs. Crane by description, had it not been qualified by subsequent words, all the persons named and all the persons described, would have taken equal shares per capita; and the subsequent words, providing that the children of Mrs. Jones1 and those of Mrs. Crane should take per stirpes, leave the seven children of William Crow, who are particularly named, to take per capita; nay, manifest a clear intent that they should so take. The testator, in directing the subject to be equally divided between his children, to wit, the heirs of William Crow, namely, William, &c. (children of his son William), Thomas, &c. (his own sons) and the children of his daughters, Mrs. Jones and Mrs. Crane, in effect, describes and adopts his grand-children by his son William as his children, while his grand-children by his two daughters are described not as his but as their children. And when the testator said, that the children of Mrs. Jones and Mrs. Crane, respectively, should take only such part as their mothers would have taken if alive, that is to say, a child’s part, he meant that part which would be a child’s part according to the rule *of division prescribed in the clause itself, not a child’s part in the general sense of the phrase; for he left a living child not mentioned in the bequest.

Stanard, for the appellees, observed, that if Johnson’s construction prevailed, the children of the testator’s son William would take more than half the whole subject, namely, seven-twelfths,, and the other five branches of his family only one-twelfth, each; a construction so contrary to the natural bounty which dictated the provision, that it ought not to be allowed, unless it was unavoidable. The words of the will import no such extraordinary and unreasonable disposition. The declared design was, that the subject should be equally divided among the testator’s children; and this design would be defeated, if his grand-children by his son William take per capita with the testator’s own sons, and his grand-children by his daughters take per stirpes. The children of William, though named, are yet described as his heirs; which is nomen collectivum. The provision with respect to the children of the two deceased daughters, that they shall each take the share which their mothers if alive would take, that is, a child’s part, evinced an intent, that the shares should be ascertained by reference to the testator’s own children named in the clause.

*

Wills — Construction—Per Capita — Per Stirpes, — On this question the principal case is cited in *foot-note*to Brewer v. Opie. 1 Call 212; Hamletts v. Hamletts, 12 Leigh 369. and *foot-note: foot-note*to McMaster v. McMaster, 10 Gratt. 275; Hoxton v. Griffith. 18 Gratt. 578; Senger v. Senger, 81 Va. 697, 699; Walker v. Webster, 95 Va. 382, 28 S. E. Rep. 570. See monographic *note*on “Wills.”

CARR, J.

The sole question presented to the court, is, Whether, under the words of the will, the children of William Crow deceased, will take per capita, equal shares with Thomas, Moses and John, the children of the testator, or per stirpes, the share of their father, as the children of Mrs. Jones and Mrs. Crane take?

In the construction of wills, I think it very often happens, that we, in the first place, make up an opinion as to what the testator ought in justice to have done; that is, what we would in such a case have done; and then endeavour to find out reasons shewing that what he ought to have done, he has done. It was by this process (I rather think) that, on *the argument of this cause, I took up a pretty strong impression against the appellants. It seemed to me not right, that the grandchildren by one son, should receive more than the other grand-children, and equal shares with the children of the testator; and, therefore, I concluded, that such was not the meaning of the will. But this is surely a very erroneous process; for the testator having a perfect right to the property, his will is the sole law: we are to inquire what that will is: and in this inquiry, what we think it ought to be, should not have the least influence. The reasons, the calculations, the feelings, the whims even, which may have influenced the testator are inscrutable to us: his words are the only safe guides to conduct us to his meaning.

In the case before us, it seems to me, that the plain natural meaning of the words, and the rules drawn from the cases, lead us to the same conclusion. The cases all lay it down, that where a legacy is to several, whatever may be their relations to each other, or however the statute of distributions might operate upon such relations, 'equality shall be the rule, unless the testator has established a different one. Thus, to A. and B. and the children of C. all take per capita: to A. B. and C. and their children ; all living at the testator’s death take equally. So, to the descendants of A. and B., all their descendants, children, grandchildren &c. take per capita. Richardson v. Spraag, 1 P. Wms. 434; Blackler v. Webb, 2 P. Wms. 383; Eccard v. Brooke, 2 Cox, 213; Butler v. Stratton, 3 Bro. C. C. 367; Weld v. Bradbury, 2 Vern. 705; Northey v. Strange, 1 P. Wms. 340; Wicker v. Wilford, Harg. law tracts, 513; Malcolm v. Martin, 3 Bro. C. C. 50; Phillips v. Garth, Id. 64; Davenport v. Hanbury, 3 Vez. 257; Freeman v. Parsley, Id. 421.

Look now at the words of the will: “the balance of slaves to be equally divided between my children, to wit, the heirs of Wil*35liam Crow, namely (enumerating his son W. ■C’s children), Thomas, Moses, John Crow (children of testator), and the children of my deceased daughter Massey Jones, and the children of my deceased daughter Sarah Crane.” *Now, suppose the testator had stopped here: could there be any doubt, that each of his children and grand-children, named or described, would take equally, per capita? He first establishes equality as the ruleoE partition; and then enumerates, as the takers, ten persons by name, seven of whom he calls the heirs of William Crow, three his own children; and then he describes, as takers, the children of his two deceased daughters. It does not seem possible to raise a doubt, that if the testator had stopped here, all the children and grand-children, who were the objects of his bounty, must have taken equally. And of this he himself was well aware; for he adds, “but the children of my daughter Massey Jones, are to take only such part as their mother would take, if she were still alive, that is to say, a child’s part; and in like manner, the children of my daughter Sarah Crane, are to take only such part as their mother would take, if she were still alive, that is to say, a child’s part.” Now, this is a clear and distinct exception : and it shews two things: 1. that the testator knew, that under the former part of the clause, all the objects it would take per capita: 2. that he did not intend, that all should so take. He, therefore, excepts from its operation, those who were to take by a different rule, namely, per stirpes; and these were the children of his two daughters. This seems to me to give tenfold strength to the claim of William Crow’s children to take in their own right, per capita. However clearly in favour of that claim the first part of that clause may be, it might, (but for the exception) have been doubted, whether the testator so understood it: but that is impossible now : he has given his own explanation. Knowing, then, that by the operation of the first words, his daughters’ children (whom he had only described generally as children) would take •equally, and a fortiori, that William Crow’s children, (each of whom he had individually named) would so take; when he excepts the children of his daughters, and leaves the children of William to the unrestrained •operation of the clause, the conclusion, that these last were intended to take ^equally, is precisely as strong as that the others were to take by a different rule.

Nor is this conclusion at all weakened, in my mind, by the testator’s calling them William Crow’s heirs. He knew nothing of the technical distinction between children and heirs. He shews that he uses them in the same sense: for he says, “the heirs of William Crow namely, William &c. meaning his children.” And in another part of the will, speaking of his daughter Whooston, he says, that what he has given to her shall return to his estate &c. if she shall die without a living heir.

But it was said, the words “a child’s •part,” used in this clause, are strong to shew, that the testator meant, that this residuum should be divided into six parts, and consequently, that William’s children should come in per stirpes only. I cannot see it in that light. By “a child’s part,” did the testator mean a part to be ascertained, by taking the whole number of his children, living and dead, as the divisor? This would seem the natural sense. But this would give eight as the divisor; for he had had four sons and four daughters: but this is not contended for. Did he mean all his living children? No I for one of them is confessedly excluded from this legacy, and the children of three deceased children included. The truth is, that by child’s part, he did not mean at all to designate the number of portions, or the manner of taking: for the general purpose of the clause, he had already done this; and the whole purpose of this part of the clause, was to except the children of his daughters, and establish for them a mode of taking, different from that of his three sons and the children of William. In doing this, he says, they are to take only such part, as their mother would take, if she was still alive, that is to say, a child’s part; meaning, simply, to place them in the shoes of their mother, that they should take whatever part she as a child would have taken, without intending to designate either the amount of that part, or its proportion to the whole.

*1 am of opinion, that the appellants take per capita; that the personalty subject to this clause, should be divided into twelve parts, of which the appellants should take seven, one each; the three sons, one each; the children of Mrs. Jones one, and the children of Mrs. Crane one.

GREEN, J.,

said, that he inclined very strongly to the opinion, that the decree of the courts below was right, but the opinion of the other judges to the contrary was so clear and decided, that he surrendered his own.

The other judges, concurring with CARR, J., the decree was reversed.