Joseph Tucker et ux. versus The City of Boston, 18 Pick. 162

Shaw C. J. delivered the opinion of the Court. The decision of this case must depend upon the construction of the will of Catharine Stevens. This is an extremely obscure will, and it is difficult to put a construction upon it intelligible or satisfactory.

The Court are of opinion, however, that it was the intent and legal effect of this will of the testatrix, having provided for the descendants of two of her seven children by pecuniary legacies, beneficial or nominal, to distribute the residue among the children and issue of the other five, except those whom she had excluded, as in the case of Mary Gear, to take per stirpes and not per capita. The plaintiff, Rebecca Tucker, was one of the six children of Rebecca Sancry, a daughter of the testatrix.

Abraham died long before the will was made, and Mary Gear was excluded by a nominal legacy ; two others and the children of a third are named, but the plaintiff is not named among them who are to take the residue.

She then adds, “ meaning that the child or children of each of my sons or daughters shall have that portion which would fall to their respective parents.” The primary intent of this clause was to direct that they should take per stirpes, but the terms are broad enough to include the plaintiff as one of the children of one of those to whom the residue was intended to be given, and she is not otherwise excluded. In all other instances, those coming within the description of the children of those branches, among which the estate was intended to go, are excluded by a nominal legacy, if intended to be excluded.

It is very clear, that a legatee need not be named ; any description or designation is sufficient, which will include or identify her. In this same will, the children and heirs of the daughter Mary Shoult are includes under that general designation. 2. But upon the other point, the Court are of opinion, that if the plaintiff, the granddaughter, Rebecca Tucker, did not take a share of the estate, under the clause devising the residue, she would take a share by descent under the provisions of the St. 1783, c. 24, § 8, as a grandchild, the daughter of a deceased child, to whom no legacy w'as given.

The Court do not mean to question the authority of the decisions which have held, as the reasonable and true construction of this statute, that it is not to be construed literally, but if it appear, that the child or grandchild was fully in the mind of the testator, and was not unintentionally overlooked or forgotten, the statute should not apply. Whatever we might have thought, if now first called on to expound the statute, the construction has been too long and uniformly adopted and settled as a rule of property, to be safely overturned.

But the tests given in the cases cited, to determine whether a child has been overlooked and forgotten, or intentionally omitted, are not conclusive. They affirm the general principle, but each case must depend much on its own circumstances. In general, if a child has no legacy, the presumption is, that such child was unintentionally overlooked ; and to prevent the operation of the statute this presumption must be rebutted by evidence from other parts of the will.

The most conclusive would be a declaration of the testator, that for any cause it was his intention not to give any thing to the child ; but any other evidence, which would lead to the same conclusion, must have the same effect. The circumstance relied on here is, that the plaintiff’s mother was named, which, it was contended, brings it within the case of Wilder v. Goss, 14 Mass. R. 357. This is a circumstance to be considered, but under the other circumstances of the present case, a slight one, the descendants being very numerous, and the relations complicated, and the testatrix advanced in years.

Besides, wherever she intended to exclude one from a beneficial enjoyment of her estate, she did it by giving him a legacy, and in every instance, either by particular or general description, every descendant has a provision, nominal or substantial, except the demandant. On the whole, the Court are of opinion, that there is no evidence to rebut the presumption, that if the demandant was not included as one of those who were to take a share in the residue, she was unintentionally overlooked and forgotten by her grandmother, and in that event would take a share under the statute, as of an intestate estate.

Tenants defaulted. This construction is now adopted by statute, as a modification of the positive rule of law. Revised Stat c. 62, § 21