Brittain v. Carson

Brent, J., delivered the opinion of the Court. The object of the bill in this case is to obtain a decree, construing the residuary clause of the will of John W. Randolph, which was admitted to probat in the office of the Register of Wills for Baltimore City, on the 6th day of May, 1874. The will is made an exhibit, and the clause in question, is as follows: “It is my will, that the rest, residue and remainder of my said estate, together with all my right and interest in and to the estate and property of my deceased wife, Hannah Randolph, shall be equally divided between my said daughter, Amelia J. Brittain, and the children of Virginia Carson.” At the time of the death of the testator in the spring of 1874, he left surviving him, his daughter, Amelia J. Brittain, and his two grandchildren, Queen Maud Carson and Virginia Randolph Carson, children of his daughter, Virginia Carson, who had died in May, 1873. The question now presented, is whether the surviving daughter, and the two children of Virginia Carson, take per stirpes or per capita.

The other parts of the will do not furnish any aid in determining this question. Legacies and devises are made to a number of legatees, and amongst them, to the parties named in the residuary clause. But there is nothing to be gathered from them, showing an intention on the part of the testator, that his grandchildren were to be regarded in the distribution of the residue of his estate as a class,taking by representation. If such an intention was apparent, the cases all concur that it must be carried out.

The distribution to be made in this case, will therefore depend ¹⁸⁸ upon the construction to he given to the language used in the clause referred to. The words of the will are, “shall he equally divided between my said daughter, Amelia J. Brittain, and the children of Virginia Carson.” A long series of uniform decisions has given a settled construction to provisions in a will similar to this, all holding that the legatees, by force of the language used, take equally, and that the distribution is to he per capita. The cases which have been referred to by the appellant, as establishing a different doctrine, all affirm and recognize this rule of construction, hut are put as exceptions to it, because of something in the will which indicated a different intention on the part of the testator. Such is not the case here.

In this will, the clause now in question, is unexplained and uncontrolled by any other portion of the will, and we are left to give it a construction solely upon the force of the words which the testator has chosen to employ. We have seen no authority, and do not suppose any case can he found, in