Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-09-12
RESCR|PTS,
PENOBSCOT COUNTY

Mary Scavey Fairbanks, Appellant
rom Decree of Judge of Probate.
Rescript by King, j. This cause is
peiore the Law Court on report
Lydia II. Ruggles devised and be-
queathed the residue of her estate in
the following language:
All the rest, residue and remainder
OF my estate l give, devise and be-
queath t" my heirs and the heirs Of my
late husband, Hiram Ruggles, those
standing in the same degree of rela-
tlcnShlp either tc myself or said Hiram
&c snare alike according to the laws OF
descent in this State
Ihe teStatriX died in November 19O3.
leaving, surviving her, two sisters, also
q niece and two nephews, children If a
deceased brother, and three other
nieces. children of another deceased
brother. Hiram Ruggles died in Nav.
1857. testate, leaving neither issue, ia
ther, mother, brother nor sister. but
the descendants of six deceased broth,
crs and sisters. At the time of the death
OF testatrix there We're living II nieces
and nephcws, and eight grand niects
and grand nephews, whose parents
were deceased of Hiram Ruggle*
Upon petition for order of distl thu
non Of the residue of the estate the
judge of probate decretd one-e,:shtn
thereof to each of the two sisters of
tcstatriX, One-tWenty-fo fourth to each of
her said SIX nieces and nephews, and
one-tWenty- to each of the II
nieces and nephews of Hiram Ruggles.
From this decree Mary Seavcy Fair
banks. grand niece of Hiram Rug
giles. appealed, assigning as reasons
therefor: 10 That the residue of the
estate should not be divided equally
between the heirs of the testatriX and
the heirs of Hiram; ca that the heirs
of Hiram should not be determined
as of the date of the death Of the tes-
tatriX but of the date of his death 90
that the heirs Of Hiram were not his
nephews and nieces to the exclusion OF
his grand nephews and nieces whose
parents were deceased; ca that the
heirs of Hiram should not take per
capita but per stripes.
1t is the opinion of the court. from
d careful examination of the residuary
clause Of the will, that the manifest
intent of the teStatriX was to divide the
residue of her estate into two equal
parts, one to go to her heirs and the
other to go to her husbands heirs, and
that the persons who are to take as
such heirs. and the proportions which
they are to take. are to be determined
according to the laws of descent in
this State"
When a gift is made to class Of per
sons, to take effect in possession i'm
only those take who con-
stitute the class at the death of the
t. stator, when the will becomes opera
tive, unless a different intention APP
pears from the will, or from circ,m-
stances proper to be considered This
rule must be applied in the ease at
bar.
No question is raised as to the per
sons entitled to share as the heirs OF
the testatriX.
Hiram Ruggles left neither issue. ia
Their. mother, brother or sister, con
sequently the persons entitled to the
one half of the residue devised to his
heirs according to laws Of descent in
this State" are determined by r. S e.
-, Sec. l, Rule VI, under which ut
G"scends to his next of kin in equal
utSIe''.
At the death of the teStatriX there
We're living IL nieces and ncphews and
eight grand nieces and nepheWs. of Hi
ram Rugsles. But his grand nieces ana
ne phews, not being related to him in
equal degree with his nleces and ncph-
eWs, are not entitled to share under
Rule V. Accordingly his next Of XII.
in equal degree" are his II nieces and
hephews living at the death of tesla
trix. and they are to take the one half
of the residue devoted to his heirs, per
capita and not per stripes.
The degree of distribution Appealed
from conforms in all respects with the
of the reSiduary clause
of the will as herein determined and
the entry must be.
Appea. dismissed. The decree of the
Judge Of probate affirmed with costs