Gaughen v. Gaughen

Simmons, C. J., and Boslaugh, J., concurring in this dissent.

I am unable to agree with the majority opinion for three reasons: First, it to me patently ignores the intent of the testator and by an anachronistic rule of construction wholly foreign to Nebraska law actually defeats that intent; second, it in effect repeals section 76-117, R. R. S. 1943, which is section 17 of the Uniform *758Property Act; and, third, if a rule of construction is to be applied, the wrong one has been used.

The question in this case is whether the remainder is to be distributed per stirpes or per capita. In concluding…