Charles Intire v. Edwin Intire No 84 Edwin McIntire v. Charles McIntire No 85

• Decision Date: 04 January 1904
• Docket Number: Nos. 84,85,s. 84
• Citation: 24 S.Ct. 196,192 U.S. 116,48 L.Ed. 369
• Parties: CHARLES McINTIRE, Appt. and Plff. in Err. , v. EDWIN A. McINTIRE, Administrator, c. t. a. of David McIntire, NO 84. EDWIN A. MCINTIRE, Administrator c. t. a. of David McIntire, et al, Appts. and Plffs. in Err. , v. CHARLES MCINTIRE. NO 85
• Court: U.S. Supreme Court

192 U.S. 116

24 S.Ct. 196

48 L.Ed. 369

CHARLES McINTIRE, Appt. and Plff. in Err.,

v EDWIN A. McINTIRE, Administrator, c. t. a. of David McIntire, NO 84. EDWIN A. MCINTIRE, Administrator c. t. a. of David McIntire, et al, Appts. and Plffs. in Err., v. CHARLES MCINTIRE. NO 85.

Nos. 84, 85.

Argued December 8, 1903.

Decided January 4, 1904.

Mr. William G. Johnson for Charles McIntire.

Messrs. Charles Cowles Tucker, William Henry Dennis, and Henry E. Davis for Edwin A. McIntire et al.

[Argument of Counsel from pages 117-119 intentionally omitted] Mr. Justice Holmes delivered the opinion of the court:

These are cross appeals from the court of appeals of the District of Columbia. See 14 App. D. C. 337. To avoid all questions of form there are also writs of error on the same grounds. The appeal of Charles McIntire is from the overruling of exceptions to the final account of the administrator with the will annexed of the estate of David McIntire, and presents two questions, one of construction and one of administration, outside the terms of the will. The probate of the will already has been before this court. 162 U. S. 383, 40 L. ed. 1009, 16 Sup. Ct. Rep. 814.

The question of construction is the main one. It is whether the children of the testator's brothers, Edwin and Charles, take per capita or per stirpes under the residuary clause of the following will:

January 7th, 1880.

This is my last will and testament.

I david McIntire, tin-plate worker, of this city (of) do will, bequeath, or devise, to my nephews, and nieces, that is to say, from July the first. 1st eighteen hundred and fifty-four. 1854.

To the opening of. on reading of this, paper. one thousand three hundred and fifty dollars and sixty-four cents ($1,350.64) is to be calculated at six (6) per cent. interest

That amount whatever it may be is to be given to each of my brother Edwin's children. The remainder if any, is to be equally divided between my Brothers Edwin and Charles children. David McIntire.

There was an addition and also an earlier document of January 1, 1880, which it is unnecessary to copy. At the date of the will the brother Charles was living and had two sons, Charles and Henry, the latter of whom died before the testator. The brother Edwin had died, leaving six children, one of whom died before the testator. The testator held promissory notes of his brother Charles for $1,350.63. The brother Charles also now is dead.

The argument for a division per stirpes is this. Earlier in the paper the testator had used the phrase 'nephews and nieces,' which it would have been natural to repeat had he intended to make a division per capita. But instead of that he says 'my brothers Edwin and Charles children,' which is not very different from 'my brother Edwin's children and my brother Charles' children,' and orders an equal division 'between' them. 'Between,' if accurately used, imports that not more than two persons or groups are set against each other (Ihrie's Estate, 162 Pa. 369, 372, 29 Atl. 750; Records v. Fields, 155 Mo. 314, 322, 55 S. W. 1021), and those groups are earmarked and shown to be regarded as groups by naming the parents from which respectively they come. The equality of division is an equality between the groups. See Hall v. Hall, 140 Mass. 267, 271, 2 N. E. 700. This mode of distribution has the recommendation that it follows the rule in cases of intestacy. Raymond v. Hillhouse, 45 Conn. 467, 474, 29 Am. Rep. 688. See, further, Alder v. Beale, 11 Gill & J. 123, explained in Plummer v. Shepherd, 94 Md. 466, 470, 51 Atl. 173. But the court is of opinion that the general rule of construction must prevail, according to which, in the case of a gift to the children of several persons described as standing in a certain relation to the testator, the objects of the gift take per capita, and not per stirpes. Walker v. Griffin, 11 Wheat. 375, 379, 6 L. ed. 498, 499; Balcom. v. Haynes, 14 Allen, 204; Hill v. Bowers, 120 Mass. 135. The fact that one of the parents was living at the date of the will is deemed sufficient to exclude a reference to the statute of distributions. Blackler v. Webb, 2 P. Wms. 383; Bryant v. Scott, 21 N. C. (1 Dev. & B. Eq.) 155, 157, 28 Am. Dec. 590. And with regard to the word 'between,' the will is an illiterate will, and as the popular use of the word is not accurate no conclusion safely can be based upon that. See Maddox v. State, 4 Harr. & J. 539; Brittain v. Carson, 46 Md. 186; Lord v. Moore, 20 Conn. 122; Pitney v. Brown, 44 Ill. 363; Farmer v. Kimball, 46 N. H. 435, 439, 88 Am. Dec. 219; Burnet v. Burnet, 30 N. J. Eq. 595; Myres v. Myres, 23 How. Pr. 410; Waller v. Forsythe, 62 N. C. (1 Phill. Eq.) 353.

The other error assigned on behalf of Charles McIntire is that the court charged the estate with $11,500, fees paid to counsel for services in defending the will against the attack of the said Charles and his father. The amount was paid in different sums by orders of court, in several instances on the petition of the children of Edwin, one of whom was the administrator with the will annexed, and was directed to be charged against the interest of those children in the first instance, but without prejudice to an application to have it finally charged against the interest of those children in the account it was charged against the estate. We are of opinion that the charge was proper. There is no contest over the amount. It was the proper business and duty of the administrator to defend the will, and he was entitled to a reasonable allowance for what he had to pay in doing so. The only just alternative would be to charge counsel fees as costs against the losing party, which would have been less favorable to the appellant. The general proposition is not disputed, but it is said that in this case the legatees retained the counsel and therefore ought to pay them. The other legatees as well as the administrator no doubt had a share in calling the counsel in. But that did not matter. The services were services to the estate in maintaining the testator's will; they were adopted by the administrator, and the usual rule must prevail. It is said that there was no application to change the original order, and no chance to be heard against it. But plainly this cannot be true. As observed by the court below, allowing the account changed the order and charged the fees on the estate. Whatever want of formality there may have been, the appellant had the right and opportunity to object and except to the account, as well on this ground as others, and he used it. The precise mode in which the allowance appeared upon the account is not material, but may be explained in a word or two. The payments were made by the solicitors of the parties while they had the assets in their hands, as will be stated in a moment. They rendered their account, crediting themselves with those payments generally. Then they turned over the assets, less these...