Smith v. Ashurst
Supreme Court of Alabama
Appeal from the Probate Court of Tallapoosa. IN the matter of the partial distribution of the estate of Thomas W. Coker, deceased, whose last will and testament had been duly admitted to probate in said county, and contained the following residuary clause: “ Lastly, t is my will that the residue of my estate, both real and personal, be converted into cash, as my executors can do so to the interest of the legatees, and the whole amount be equally divided, pro rata, between my…
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Appeal from the Probate Court of Tallapoosa. IN the matter of the partial distribution of the estate of Thomas W. Coker, deceased, whose last will and testament had been duly admitted to probate in said county, and contained the following residuary clause: “ Lastly, t is my will that the residue of my estate, both real and personal, be converted into cash, as my executors can do so to the interest of the legatees, and the whole amount be equally divided, pro rata, between my niece, Frances Ellen Johnson, and the children of my brother, Richard C. Coker.” Under this clause of the will, the…
1Opinion of the CourtStone, J.
Mr. Jarman, in his admirable work on Wills,, (vol. 2, p. 111,) says: “Where a gift is to the children of several persons, whether it be to the children of A. and B., or to the children of A. and the children of B., they takeyier capita, and not per' stirpes.”
The same1 rule applies where a devise or bequest is made to a person described as standing in a certain relation to the testator, and the children of another person standing in the same relation, as to “ my brother A., and the children of my brother B.,” in, which case A. takes only a share equal to that of one of the children of B.,…
2Cases cited3 opinions
- Vanzant v. MorrisSupreme Court of Alabama · 1854
- Duffee v. BuchananSupreme Court of Alabama · 1845
- Howard v. Howard's Adm'rsSupreme Court of Alabama · 1857
3Cited by9 opinions
- Patton v. LudingtonWisconsin Supreme Court · 1899
- Biggs v. McCartyIndiana Supreme Court · 1882
- Bethea v. BetheaSupreme Court of Alabama · 1896
- Varner v. Young'sSupreme Court of Alabama · 1876
- Guesnard v. GuesnardSupreme Court of Alabama · 1911
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