McFatridge v. Holtzclaw

• Decision Date: 16 May 1893
• Citation: 94 Ky. 352,22 S.W. 439
• Parties: McFATRIDGE et al. v. HOLTZCLAW et al.
• Court: Kentucky Court of Appeals

22 S.W. 439

94 Ky. 352

McFATRIDGE et al. v. HOLTZCLAW et al.

Court of Appeals of Kentucky.

May 16, 1893

Appeal from circuit court, Mercer county.

To be officially reported.

Action by Andrew McFatridge and others, legatees under the will of S. S. McFatridge, against William Holtzclaw and others, also legatees under the will, for a construction of such will. From a decree dividing the estate per stirpes, McFatridge and others appeal. Reversed.

Poston & Jacobs and Gaither & Vanarsdall, for appellants.

Phil B Thompson, Sr., for appellees.

BENNETT C.J.

By the last will of S. S. McFatridge, he willed his estate to his wife, for life. He willed the remainder interest in his estate as follows: "After the death of my wife, I wish my property disposed of, and equally divided between the heirs of my brothers and sisters, share and share alike, as though my brothers and sisters were living." The testator had no children, and at the time of his death, and the publication of his will, his two brothers, William and Harvey McFatridge, and his sister, Mrs. Holtzclaw, were living; one brother had four children, one had two, and the sister had one. The widow of the testator having died, the question is how the children of the brothers and sisters take,-per capita or per stirpes.

In the case of Purnell v. Culberton, 12 Bush, 369, Jarman on Wills and other authorities are quoted as establishing the following propositions: "Where the gift is to the children of two or more persons the division must be per capita, and not per stirpes, as where the devise is to testator's brother A. and the children of his brother B there B.'s children each get as much as A.; and where the testator gave two shares of his estate to the children of his sons, A. and B., to be equally divided between them, it was held that each of said family of children took per capita and not per stirpes. The words 'equally to be divided,' when used in a will, mean a division per capita, and not per stirpes, whether the devisees be children and grandchildren, brothers or sisters, nephew or nieces, or strangers in blood to the testator." According to said case, there can be no doubt that the words, "equally divided between the heirs of my brothers and sisters, share and share alike," taken alone, mean that the devisees take per capita, and not per stirpes. But the words, "as though my brothers and sisters were living," are added. So the question...