The opinion of the court was delivered by: MORRIS
The executor under the will and codicil of William L. Robins, deceased, by petition, ask for directions as to the manner in which distribution of the residue of decedent's estate shall be made. Answers have been filed by all interested parties, including the guardian ad litem, appointed to represent the interests of minors. The tenth item of the will here under consideration reads as follows:
"All of the rest, residue and remainder of my estate, of every character and description, I give and bequeath to the issue, living at the time of my decease, of my cousins hereinafter named as follows:
Four-eighths (4/8) to the issue of Emma Kate Whaley
One-eighth (1/8) to the issue of Ethel Purnell MacGregor
One-eighth (1/8) to the said issued of Frances Purnell Thebaud
Two-eighths (2/8) to the said issue of Blanche Purnell Russell.
Should any of the fractional bequests fail for want of issue, the total of the numerators of the survivors' fractions shall be taken as a new denominator and for purposes of distribution the numerators of the survivors' fractions shall be written above such new denominator, and the said distribution shall be made in accordance with such newly determined fraction."
It is stated in the petition, and admitted by the answers, that Frances Purnell Thebaud is an adult and at the time of the death of the testator, on January 28, 1940, had no children or descendants. For this reason, the bequest of one-eighth of the residue to her issue has failed, and the other fractional bequests of residue have been thereby increased from eighths to sevenths.
The descendants of Emma Kate Whaley who were living at the time of the death of the testator are:
(a) John F. Whaley, adult son. He has no children or descendants and had none at the time of the testator's death.
(c) Dr. Thomas B. Whaley, adult son, who has one minor child, Anna Whaley, age 11 years.
(d) Ellen R.W. Patton, adult daughter. She has two minor children, William Whaley Patton, age 12 years and ...