#### J. D. Mathews et al *v.*R. K. White et al.

Descent and Distribution — Wills—Construction.

A will provides “and should any of my said daughters or granddaughters die, having no living' child, then the estate given them herein, to be equally divided between the devisees hereinbefore named etc.” Held, that upon the happening of such contingency, the devisees would take per capita and not per stirpes.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

November 22, 1869.

Opinion of the Court by

Judge Hardin:

The correctness of the judgment sought to be reversed on this *335appeal, depends on the proper construction of the following clause of the will of David Glass, deceased:

> “I direct that such of my estate as shall not be otherwise disposed of by this will, be divided into five parts (including what I have given to each of my children, and which will be hereafter stated) one-fifth thereof I give to my daughter Mary M. White, one-fifth to Margaret I. Venable, one-fifth to David Ellen Mathews, one-fifth to my grand-daughters, the children of my deceased son Robert W. Glass, and the remaining fifth I give one-half thereof to my grand-daughter Sarah O. Curry, child of my deceased daughter Eliza Ann Irwin, and the other half thereof I give and bequeath to my three daughters and two grand-daughters, first above named, to be divided between them, my two grand-daughters, children of my son Robert, to take one-fourth of the half of said fifth, and each of my said daughters daughters, Mary M., Margaret I. and David Ellen, to take one-fourth of the half of said fifth; and should any of my said daughters or grand-daughters" die having no living child or children, then the estate given them under this will, I direct shall be equally divided between the devisees herein before named and the children of such as may be dead; the children of such as may be dead, to take that part or portion, their parent would be entitled to if living.”

Under said provision, said Mary M. "White and her husband, Robert K. White, received of the testator’s estate about $6,819.38, for which they became contingently liable to said devisees in remainder.

Said Mary M. White having died leaving no living children, her said husband brought this suit against Margaret I. Venable, David Ellen Mathews and Sarah C. Curry and their husbands, and said two daughters of Robert W Glass, deceased, seeking a construction of the will, as to the several shares of the defendants, in said funds in his hands which he asked to be allowed to distribute and pay to the defendants according to their several rights.

The court by its judgment directed the payment of the fund in equal parts to each of said testators, two surviving daughters, Mrs. Venable and Mrs. Mathews, and his said three grand-daughters, *336Mrs. Curry and Elizabeth L. Class and Sallie J. Class, thereby dividing said fund into five equal parts.

*Bunch &*Young, *for appellant.*

Wheat, White, *for appellee.*

It is insisted for the appellants that the- devisees in the remainder také of said fund *per stirpe,*and not *per capita*as adjudged by the court, and that the court therefore erred to their prejudice in admitting each of the children of R. W. Class, deceased, to take an equal share with them. But interpreting the will by the usual rules of construction, we are constrained to concur in the decision of the chancellor.

It is true the will, in explicit language, restricts the two daughters of R. W. Class, deceased, to an equal share with the appellants, in the immediate division of the estate, and only departs from the law of distribution by curtailing the share of Mrs. Curry and limiting the title conferred; but in the ultimate disposition of the share of Mrs. White, in the contingency which has happened, the testator’s direction is equally explicit, that it shall be equally divided among the devisees previously named, which includes alike Mrs. Curry, and each of the daughters of R. W. Class, deceased, as well as the two surviving daughters of the testator.

Wherefore, the judgment is *affirmed.*