#### Stowe v. Ward and others.

From Lincoln.

Devise as follows: “ It is my will, and I do allow, that all the remaining part of my estate, both real and personal, be equally divided among the heirs of my brother John Ford, the heirs of my sister Nanny Stowe, the heirs of my sister Sally Ward, deceased, and nephew Levi Ward” The testator, in a former clause, had taken notice that his brother John Ford was alive; Levi Ward was one of the children of Sally. Held, that the word heirs was used in the sense of children, and as a designation of the persons, the division must be per capita.

The testator’s affection for and preference of Levi, cannot be shown by parol evidence; but the will furnishing evidence that he was a fa-vourite nephew and an object of peculiar bounty, the devise to him by name shall not be considered a repetition of the first as one of Sally Ward’s children, he shall have an additional share.

This was a petition filed to obtain partition of certain lands described in the petition, which came on for hearing before Badger, Judge, at the fall term of the year 1824, in the Court below. The object of the parties was to procure the opinion of the Court upon the construction of a devise in the will of Nathan Ford, deceased.

The facts, as stated by the parties at the hearing, were these: Thetestator, being seized in fee simple of the lands described in the petition, and possessed of a considerable personal estate, duly made and published his last will and testament, which, after the usual introduction, proceeds to devise in these words:

I give and bequeath to my brother John Ford, two hundred acres of land, including where he the said John now lives, during his natural life, and at his decease said land to fall to his the said John Ford’s children. Item, I give and bequeath .to my nephew Levi Ward my sorrel horse called Murlin, and my negro boy named Dub, to him, his heirs and assigns forever Hem, It is my will, and I do allow, that all the remaining pari of my esta*e, both real and personal, be as equally divided amongst the heirs of my brother John Ford, f’ie heirs of my sister Kanny Stowe, t/ie heirs’ of my sister Sally Ward, deceased, and nephew Lem Ward.

*605At the time, of making this will, and at the time of his death, the testator had, living, his brother John Ford, who had four children, Polly, 'Martha, George, and John; and his sister Nanny Stowe, who had nine children, Litilebu-ry, Larkin, Leroy, Lemuel, Jacob, Polly, Abram, Whitten, and Pinkney. At that time the testator’s sister Sally Ward was dead, leaving two children, Sally Ward and Levi Ward. Levi is the nephew mentioned in the will, who liad then resided with the testator (who was unmarried and without children,) for fourteen years, transacting his business for him as his agent and to his satisfaction.

The presiding Judge below was of opinion upon this case, that the several families of his brother and sisters, and not the individuals composing them, were the objects of the testator’s bounty; tiiat the equality of division intended by the testator was between the several families designated and the nephew Levi Ward; that the children of John Ford were entitled to one fourth part of the real estate, the children of Nanny Stowe to one other fourth part, the children of Sally Ward the sister (excluding Levi Ward) to one other fourth part, and the said Levi Ward to the remaining fourth. And a decree of partition was made accordingly. The commissioners having returned the partition made by them according to this decretal order at the succeeding term of the Court below, the then presiding Judge (Paxton,) made a final decree of confirmation thereon, whereupon the petitioner appealed to this Court.

Wilson, for the appellee,

referred to 1 Dallas 4. 1 P. Wins. 230. 2 Ibid 342. 741. 384. 8 Ves. Jun. 604. IQ Ibid 166. 176.

J. Martin, contra,

referred to 1 Brown Ch. 472. 1 Aik. 411.

Taylor, Chief Justice

On A recent case in Chancery, a question arose upon a bequest of one fourth to the children of A, and one other fourth to or among the cliil-*606dren of B, whether it should be divided per capita or per stirpes, and it was decided that the distribution should be per capita. Linch v. Pelham, (10 Vesey 167.) I beg leave to cjte pat>t of the chancellor’s opinion in that case, because it coincides with the opinion I had entertained in this from its opening, and because I felt the importance of the sentiments inculcated many years ago, when I joined in the decision of Whitehead v. Pritchard, (1 Murph. 382.) “Upon the next question, whether the distribution is to be per stirpes or per capita, I am not quite sure that my opinion is not against the intention. If there is a settled construction, founded upon cases decided, applying to the terms used, it is better to adhere to- that settled construction, though I may entertain some doubt whether it is according to the intention, than upon grounds, on which I cannot rest in every view of the case, to come to a decision, having a tendency to shake that which forms a rule of construction; and which, in practice, may have been acted upon in many cases. It is clear that if this had been a bequest to the younger children of two persons, equally to be divided between and among them, the division would be per capita. That rule has been applied in many instances, upon which doubts have been strongly raised: for instance, a gift to a brother and the children of a deceased brother, who without a will would take per stirpes: yet it has been held, that though the law would have given it in moities, that is not the effect of an express bequest.”

There is, in my opinion, a settled construction upon all devises of the nature of that now before us, recorded in a series of decisions to be traced back for more than a century, by the aid of which, any counsel upon an inspection of a will, can advise his client as to the extent of his interest. I should deprecate such a departure from these adjudications as would, leave judges nothing to guide them, but the obscure, and often undisco verable intentions of the testators.

*607As the devisor takes notice in his will that his brother John Ford is alive, by making a special devise to him, no doubt is left that he used the word “heirs” in the sense of “children,” and as a designation of the persons. They necessarily must carry the same meaning when applied to the heirs of Nancy Stowe, and still more clearly in relation to those of Sally Ward, whom he states to be dead. All these devisees are of equal kin to the devisor in their own persons, though making out their pedigree through different stocks, and would, were the parents of all dead, be entitled, under the statute of distribution, to a division per capita. And this I take to be the proper construction of the will, according to the principles established in the following cases, which are not essentially distinguishable from this. Blaklen v. Webb, (2 P. Wms. 383.) Wild v. Bradbury, (2 Vern. 705.)Northey v. Strange, (1 P. Wms. 340.) Malcolm v. Martin, (3 Bro. C. C. 50.) Butler v. Stratton, [Ibid 367.) Thomas v. Hole, (Forr. 251.) Green v. Howard, (1 Rro. C. C. 31.) Phillips v. Gath, (3 Bro. C. C. 64.) Rayner v. Mowbray, (3 Bro. C. C. 234.)

In relation to the share of Levi Ward, it would be impossible to collect the testator’s preference and affection for him from any parol evidence, and therefore no notice is taken of the facts alleged on the record. But there is on the face of the will sufficient evidence that he was a favorite nephew, by the specific bequest made to him in the first clause, and the express devise made to him by name, after the provision made for him as one of the heirs of Sally Ward. These circumstances too strongly point to the fact of his being an object of peculiar bounty, and will not admit of the rejection of the devise to him by name, as being a repetition of the first. The intent of that was to give him an additional share, and this I think ought to be the devise.