Page:The English Reports v1 1900.pdf/1444

construction; but that it ought to be favoured, as operating with more equality, and therefore with more equity, between the two branches of the testator's family, than a distribution per capita. If in construing the will, a distribution per stirpes should be preferred, it would give one moiety of the testator's property to the family of his brother, and another to that of his sister. If the distribution per capita should be adopted, the whole property passed to the sister's family in perfect exclusion of the brother's. So much in favour of a distribution per stirpes arose from the devise itself; and it was offered as no slight ground for preference in the construction, where the words to be interpreted are of so doubtful a meaning as to bear two senses. But this was not the chief strength of the argument for the appellants. What they most relied on was the explanation of the testator's intent, conveyed by the subsequent dispositions of his will, By the devise of the one half of his fortune to his sister's eldest son, in the event of her not having a younger son, the testator put a direct [452] negative on a distribution per capita, as against the younger sons of his brother; for according to that devise, a younger son of the brother could in no event have more than a moiety. If then the testator intended a distribution per capita, it was of a very unequal and partial sort; that is, in favour of the sister's family, but not in favour of the brother's. But was this consistent with the clause itself, or with the other parts of the will? The clause itself, which contained the devise to the brother's and sister's younger sons, was without partiality either way. In the other parts there was more than an equality of affection for the brother; there was an absolute and decided partiality for him. In them he was made the testator's sole trustee both of his real and personal estate, the sole guardian of his children, and his sole residuary devisee and legatee; in them he was made, in the event of his sister's having no younger son, and of her death and that of her eldest son before the testator, to succeed to the whole property, as against the representatives of the sister, who by the first part of the will was put on an equal footing with him. But the construction for a distribution per capita turned the stream of the testator's partiality another way, and converted it into a partiality for the sister instead of the brother; establishing a distribution per capita as against the brother's younger sons, but refusing it in their favour. Besides, the very manner of expressing the devise on the event of the sister's not having a younger son shewed, that the testator considered the former part of his will as amounting to a devise to the two branches of his family in moieties; for the devise on this event was of the one half of the testator's fortune, which were clearly words of reference, and could only be properly applied to the half-part which he conceived to have been given by the preceding devise to the sister's younger sons, and in default of them to the sister herself. This, too, explained the true motive for the devise to the sister's eldest son, in case of her not having a younger son. The devise over to the sister's eldest son was, not to establish a partial distribution per stirpes to the prejudice of the brother's younger sons, as perhaps the respondent's counsel would contend; but, as had been already noticed, it was to make a new arrangement of the moiety before allotted to the sister's younger sons and herself, by making her eldest son, and eventually the brother himself, substitutes for her younger son, instead of making her the sole substitute. Here the argument reduced itself into a short compass; for it stood thus: The sister's eldest son was clearly a substitute for, and consequently to take as much as the sister's younger sons; but the elder son could only have taken a moiety; therefore the youngest son could not take more. If the will was considered in this way, every thing would be consistent, every thing would be reconciled; for the disposition would, in the event which had happened, carry the property with equality, where the testator plainly intended equality; and if the other events, in which he plainly intended to introduce a disposition more favourable to the brother, had happened, that partiality would have operated accordingly. But [453] should the construction per capita prevail, the whole plan of the will would be subverted, and it would be made to create an unequal and partial distribution, to the prejudice of the very brother's family, in whose favour the only partiality explicitly avowed in the will was so strongly expressed. Thus too a will, which, as the appellants construed it, was intended in all events to give a moiety of the testator's property to his brother's family, and in some the whole, would be made so to distribute the property, that in no event the brother's younger son could have taken more than a moiety; and in the event which had actually happened, the whole would be taken by the sister's younger son. Such a construction would be the more remarkable, because it was