Devise and Legacy.
A will contained the following residuary clause: "I direct that the remainder of my property if there be any, be divided in equal shares between Willie Wilder, the children of Ella Roper Phillips and the children of the late George S. Roper, share and share alike." There were six children of Ella Roper Phillips and three children of George S. Roper. Willie Wilder contended that he was given one third of the residue. Held, that the property should be divided into ten equal parts, of which Willie Wilder should receive one.
BRALEY, J.
The testatrix, after making various specific legacies and creating a life estate for the benefit of her sister and directing that at the death of the tenant for life certain pecuniary legacies should be paid, provided further in the eleventh clause of the sixteenth article of her will as follows: "I direct that the remainder of my property if there be any, be divided in equal shares between Willie Wilder, the children of Ella Roper Phillips and the children of the late George S. Roper, share and share alike." The life tenant is dead, and, although not stated in the record, we assume that after payment of the legacies a fund remains for distribution under the residuary clause. It is the contention of the appellant that he is entitled to one third of the residue, while the remainder is to go one third to the children of Ella Roper Phillips and one third to the children of George S. Roper as a class; all of whom were living at the death of the testatrix. But this construction cannot be adopted. The intention of the testatrix is free from doubt. The legatees, who are referred to as "children" and not as heirs, are to "share and share alike;" and the naming of their respective mother and father was only for the purpose of designating the persons who were to take. Weston v. Foster, 7 Met. 297, 300. Daggett v. Slack, 8 Met. 450, 454. Balcom v. Haynes, 14 Allen, 204, 205. Hill v. Bowers, 120 Mass. 135. The plaintiff is instructed that the residue is to be divided into ten equal parts or shares of which the appellant is to receive one share and the nine defendants one share each. The decree of the court of probate should be affirmed.
Ordered accordingly.