Estate of Williamson
| Decision Date | 08 February 1922 |
| Docket Number | 4743 |
| Citation | 45 S.D. 180,186 N.W. 827 |
| Parties | IN RE ESTATE OF JOHN WILLIAMSON, DECEASED. CHARLES H. WILLIAMSON, and Minnie Williamson Mulleague, Plaintiffs and respondents, v. WILLIAM WILLIAMSON, James Williamson and Henry Williamson, Defendants and appellants. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Bon Homme County, SD
#4743--Affirmed
W. L. Redden, Bogue & Bogue
Attorneys for Appellants.
French, Orvis & French
Attorneys for Respondents.
Opinion filed February 8, 1922
This is an appeal from a judgment construing the last will and testament of John Williamson, deceased. The clause in the will that is in question, which is the only disposing clause in the will, reads as follows:
"All of real and personal property I bequeath to my brothers and their families."
Testator left surviving him three brothers, James, Henry, and William. James was a bachelor and had no family at all. Henry had wife and four children. William had a wife and two children; in all eleven persons. The sole and only question in dispute is: Is the estate to be divided into eleven equal parts, and one part given to each of the eleven persons composing the three families? Or is it to be divided into three equal parts and one part given to each family? In other words: Is the estate to be distributed per capita or per stirpes?
It is the contention of the appellants that the last three words "and their families" should be held to be void for uncertainty, and that the will should be construed to mean that the estate should be divided into three equal parts, and that one of such parts should go to each brother if living at the time of testator's death, but that in case of the death of either of the brothers prior to the death of the testator then the share that would have gone to such deceased brother should go to his family. But this position cannot be maintained under appellants' theory of the case, because if the clause in question is held to be void then it must be left out of consideration altogether, and there is no reference whatever to the families; and in case of the death of either of the brothers prior to the death of the testator the part that would have gone to such deceased brother would be distributed under the statute of distribution. But by the use of the words "and their families" it is manifest that the testator intended that each of the members of his brothers' families should take a share of the estate as a direct gift from him rather than by right of succession from his brothers at their death.
In support of their contention that donees under the will should take by the group or family rather than as individuals, appellants cite: Raynolds v. Hanna (C. C.) 55 Fed. 783; Walker v. Griffin, 11 Wheat. 375, 6 L. Ed. 498; Fisher v. Skillman, 18 NJ Eq. 234; Youngs' Appeal, 83 Pa. 63; Osburn's Appeal, 104 Pa. 644; Paul v. Ball, 31 Tex. 21; Ross' Ex'r v. Kiger, 42 W. Va. 411, 26 S. E. 193; Preston V. Brandt, 96 Mo. 558, To SW 78; Silsby v. Sawyer, 64 N. H. 580, 15 Atl. 601; Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70; In re Whittaker's Estate, 175 Iowa, 718, 157 N.W. 135; Fields v. Fields, 93 Ky. 619, 20 S.W. 1042; Allen's Succession, 48 La. Ann. 1036, 20 South. 193, 55 Am. St. Rep. 295; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302.
While the language used in the distributing clause in all these cases is more or less similar in import to the language used in this case; still upon examination of those cases it will be found that in the distributing clause itself or in some other part of the will, or from the general context of the entire will, there is something to indicate that it was the intent of the testator that the beneficiaries should take per stirpes rather than per capita. In this case there is no such language; nothing to indicate that the testator intended that his beneficiaries should be treated other than as...
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