Levering v. Levering

Eggleston, J., delivered the opinion of this court. From this record it appears that, in the year 1830, Sarah Brown departed this life, leaving a will, and owning personal property consisting of stocks and leasehold estate, but having no realty. ³⁷ Her will contains the following provisions: “I give, devise and bequeath unto my son John Brown, the dividends and interest arising from six shares of Bank of Baltimore stock, as also the dividends and interest on sixty-three shares of Mechanics Bank stock, during his natural life. “I give, devise and bequeath unto my daughters, Hannah Levering and Sarah Levering, during their natural lives, the dividends and interest arising from the said stocks, after the death of my said son, John Brown. “I give, devise and bequeath unto Hannah Levering and Sarah Levering, for and during their natural lives, all the rents, issues and profits from all the rest, residue and remainder of my estates, real, personal and mixed, to their own separate use and uses, and in the case of the death of either of them, then, and in that case, the rents, issues and profits of the one so dying shall be equally divided between the heirs of the said deceased; and I will and direct that my executor, ¡hereinafter mentioned, after the death of the said Hannah and Sarah Levering, shall set up and expose to public sale, giving three weeks’ notice in some of the newspapers of the said city, said property so devised to the said Hannah and Sarah, in fee-simple, upon a credit, and the nett proceeds of said sale, after deducting his reasonable expenses, unto and amongst the heirs -and representatives of the said Hannah Levering and Sarah Levering, their heirs and assigns forever.” Letters testamentary were granted to Philip Moore, the exec•utor named in the will. He died and letters of administration de bonis non, with the will annexed, were duly granted -to the present appellee, Mary Ann Levering. John Brown survived his mother, and died many years •since.

Sarah Levering departed this life leaving the petitioners, now appellants, with George W. Levering and Eliza B. Levering, her children and heirs at law; which said Eliza has since died, intestate and without issue, leaving the petitioner’s and the said George W. Levering, her brothers and sisters of the whole blood, and the said Mary Ann Levering, her sister •of the half blood, surviving her. ³⁸ Hannah Levering died leaving five children, who- are all living. It is admitted, “that the administratrix has distributed among the parties all the estate, except the sum actually in controversy.” The question we are asked to decide is,-whether, under this Will, upon the decease of the two daughters of the testatrix, the children of each were entitled to one-half of the estate intended to be disposed of by the last clause in the will;, or whether the children of both were to take per'capita? The counsel for the appellants claim a distribution of the fund j»e?' capita. We think this is not consistent with the intention of the testatrix.

Having given to the two daughters,