Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-04-09

kBLE OPINION or JUDGE Card
WELL IN THEM YESTERDAY.
HOUSTON CHILDREN GET THEIR SHARE
Though tho Mother Died Prior TO
Execution of the instrumcnt-TcIc-
Dismisscd-othcr Cases Decided.

The most interesting cases decided in
the supreme Court OF Appeals yesterday
were those involving the will OF William
+. cheek. who was enc OF Danvincs
wcalthicst and most influential citizens.
The styles OF the suits were Wildberger
SC. against Checks Executors. Browning
and others against the same. and Casey
and others against the same. and all
three were dealt with In one opinion. pre-
uared 10y Judge Cardwcll, and It was a
most exhaustive and comprehensive trea-
Else on the questions involved. the effect
OF which was TO sustain the lower court
In each case.
William r. Cheek. Of Danville. a bank
or and a bachelor. made a will in Octo-
Der. 1891. disposing OF his fortune Of over
10000 among his relatives, and these
appeais grew out Of the suit In the court
below TO have his win construed. The
question presented I'm the first main case
was this: In the fourth clause Of the
will the testator bcQucathed to his sis
TORS $1,000 each. one of these sisters
vcos Mrs. Elizabeth Houston. who had
died al her home I'm Tennessee before
the death % the testator and shortly
before the execution OF his will leaving
issue who survived the testator-a laugh
ter and q granddaughtor-who are the
appclees.
The question presented was: Does the
leeacy Of $4,000 to Mrs. Houston lapse
or become void because Of her death be-
fore the date OF the will. or does the
LEGACY pass to the issue Of the legatee.
who survived the testatOr. under Sec
zion 2-5 of the Code. which is as fol-
lows: "If n devisee or legatee die be-
fore the testator. leaving issue who sur
vive the tcstator. such issue shall take
the estate devised or bequeathed. as the
devisoe or legatee would have done If
De had survived the testator, unless a
different disposition thereof be made or
required by the Will"
The opinion says that there is no ambi-
ulty whatever i'm the fourth clause Of the
viu. and it is therefore this section of
De Code that it is called upon to con-
true. IL was conceded that II Mrs
Houston had died in the interval between
ne execution Of the will and the death
Of the testator. her issue would have
taken under the statute; but the conten-
lion was that as her death took place
orior 10 the execution Of the will. the
contrary was the result. and the amount
Of the legacy became part Of
the residuum of the estate. The
history of the statute now Sec
ton 2523 OF the Code IS given. and the
decisions Of the courts of other States
having q similar statute are reviewed at
length. the precise question involved here
never having been passed upon by the
Supreme Court of Virginia and il is
shown that in all the States having a
statute similar 20 Virginia, and i'm which
Tho question has been judicially de-
.ermined. IL has been held that devise
Or bequest to a legatee or devisee who
had died before the testator and leaving
ssuc who survives the testator becomes
vested in such issue upon the death Of
the festator an the same manner as
n the lecatee or devisee had died imme-
liately after the death O. the testator,
and whether the death of the devisee or
legatee happened before or after the
date OF the will. And the Court holds
that this Is the true Interpretation Of
section 2523 Of the Code, and that there
fore the decree of the lower court, so
holding. should be affirmed
THE RESIDUARY CLAUSE
The second appeal, Browning against
Cheeks Executors, involved a con-
struction Of the residuary clause Of the
will. which was as follows: "All the
rest and residue Of my estate. after pay
ing my funeral expenses and erecting
Il small monument 10 my memory. &C,
I direct my executors to distribute equal
" among all my nieces and nephews.
They are the following: The children
Of nv sisters-Carolina |. Wildberger,
Sarah A Waggener. Elizabeth Houston,
Mary Margaret Stokes. Thomas II.
Cheek-and my nephew. Thomas Hughes,
son Of my deceased sister. ] wish the whole
number ascertained and the sum then
divided by this number, and give each
one the same sum. sc
IL appears that besides the persons
mentioned I'm this clause Of his will, the
tcstator had % brother. Mark r. Cheek,
and a deceased sister, Jane Browning.
Mrs. Browning had five children. All
adults. and were the appellants. They
contended that tbs clause must extend
10 them because the tcstator used the
words. "AU my nieces and nephews."
and that it was not cut down by the
specific enumeration of those whom he
wished 10 take under this clause. but
that their names were omitted through
inadvertence. and that the Court should
include them among the resduary lega-
tees But the court below held that by
the terms OF this residuary clause OF his
viii the testator excluded the appellants
from the class which was TO take the
residuum OF the estate by limiting the
number Of the class 20 those specifically
named therein.
The opinion here reviews closely the
entire contents of the will and the eX-
trinsic evidence I'm the record relied on
and shows concusvely that the appel
lants were not admitted I'm the rcsiduary
clause by inadvertence. They had been
given specially and by name in the first
clause OF the will 1900 each, and in the
fifth clause the nieces, children of Mrs.
Browning are given all testatOr's cham
Der and parlOr furniture with specific di-
rections that it be shipped freight paid.
10 one OF them. Mrs. Yates, TO be di-
Vlded by her with her sisters as she
deemed just and right, and IL is further
shown that the children OF Mrs. Brown
ing had been objects Of the testator's
bounty. and had called upon him (at
least some Of them when I'm distress or
need, and 10 which the testator respond
a.
The opinion then reviews the authori-
Nos. and scans most carefully the resi-
5uary clause Of the will. as well as the
whole will. and concludes with the opln-
ion that there Is no error in the decree