but a short and natural way of saying exactly this particularly when related as here to the term "children" in other items of the will, which are in turn related to the item here under consideration. As indicative of this meaning, it is to be noted that, in the residual bequest, there are lacking the words "equally to be divided between them, share and share alike," which uniformly appear in the other items of the will to which reference has been made. This intention of the testator is further indicated by the stirpital distribution in the event his cousins named in the third and fourth items of the will should predecease him. It is hardly to be supposed that this principle of representation was not to apply with respect to the residual bequest if one of the children of a named cousin should predecease the testator leaving issue. This, I believe, was the intention of the testator in the choice of the term different from, but related to, the term "children" used in the previous items of the will.
There are several principles of construction which press for this conclusion. That construction of doubtful words is to be most favored which will inure to the benefit of the next of kin. A method of distribution following that prescribed by the statute of distribution is considered the most natural and normal. A construction which permits children to compete with their living parents is to be avoided, unless such was plainly the testator's intention. In the case at bar, no children of the named cousins predeceased the testator leaving children or other issue, but this possibility must needs be considered to determine what the testator had in mind in using the terms which he did.
Furthermore, there would seem to be legislative sanction for the view that the word "issue" connotes representation in this jurisdiction. By statute, it is provided that, if a devisee dies before the testator, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition be made or required by the will (D.C.Code, Title 29, Section 30). This legislation derives from the English Statute of Wills, 1 Vic., Chapter 26, Section 33. Its prototype exists in many of the States. There has been no decision in this jurisdiction construing the word "issue" as used in this legislation, but it is commonly construed in States having a similar statute as equivalent to heirs, or next of kin, in the descending line, and has been repeatedly held to exclude grandchildren who are children of living children from taking concurrently with their parents. Redfield on Law of Wills, supra.
It is further to be considered that the guardian ad litem for the minors here involved urged that the court receive parol evidence as to the intention of the testator in respect of the use of the word "issue" here involved. It is stated that evidence, if received, would establish that the residuary bequest here involved is identical with the provisions of a residuary bequest in a previous will, with the exception that certain parties mentioned in the residual bequest of the earlier will were deleted from that bequest of the will now under consideration, and that the testator, when asked by the draftsman of the earlier will if he should state in connection with the word "issue" that distribution should be made "per stirpes," the testator answered, "No:" whereupon the testator was asked if he desired the words "per capita" used to designate the manner of distribution, and the testator replied that he desired merely to use the word "issue." Quite aside from the question as to the admissibility of parol evidence in the circumstances here present to establish an intent which may be found in the instrument itself, the offered proof, if received, would not support the contentions of the parties on whose behalf it is offered. While, doubtless, if the term "issue" had been qualified by the phrase "per stirpes," the question now under consideration would not have been raised, it is quite understandable why the testator, who is said to have been choice in his language, would object to such qualification in the residuary bequest. The term "per stirpes," used accurately, means that persons who take do so in a representative capacity and, standing in the place of a deceased ancestor, take only what he would have taken if living. Bearing in mind that the gift in the residuary bequest was directly to the issue of named cousins, and not to such cousins, who even if living, were not to take, if it had been the intention of the testator that the children of such cousins, if living, were to take, the distribution to them would not be per stirpes. If, on the other hand, intending that all of such children should take per capita, but, in the event one of them should predecease the testator leaving issue, that such issue should take their parents' share, the use of the term "per capita," to which the testator objected, would also be in conflict with his purpose.
In consideration of all of the foregoing, the conclusion reached is that the testator intended the living children of the cousins named each to take, share and share alike, their part of the fractional residue left to the issue of their mother, and the children of any deceased child to take per stirpes the share which their parent would have taken. In this view, it is directed that the four-sevenths of residue bequeathed to the issue of Emma Kate Whaley be distributed one-fourth each to John P. Whaley, Katharine W. Cummins, Thomas B. Whaley, and Ellen R. W. Patton, and that the one-seventh of residue bequeathed to the issue of Ethel Purnell MacGregor be distributed one-half each to Charles Russell MacGregor and George Purnell MacGregor.
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