In Re the Estate of Gruendike

SHAW, J.

This is an appeal from a part of the decree of final distribution of the estate of Jacob Gruendike, deceased.

The appeal concerns the interpretation of the third clause of his will. The testator was a bachelor. He was over eighty years of age at the time of his death and left surviving a brother and three sisters and a large number of nephews and nieces, the appellant Abbott being one of the nephews. He left an estate of the value of something near three hundred thousand dollars. After providing for the burial of his body and giving a legacy of a thousand dollars to his nephew Edwin Phillips, he devised the residue of his estate by the third clause of the will. This clause provides that the residue shall be equally divided. between his brothers and sisters and all of his nephews and nieces living at the time of his death, each to take

per capita

and as a class, that is to say, a nephew or niece was to take the same share as a sister or brother. The appellant Abbott, being one of the nephews, the effect of this clause, if it had not been qualified, would be to vest in him an equal share in the residue with the other nephews and nieces, brothers and sisters. The will, however, in the last sentence of the third clause provides with respect to Frank W. Abbott as follows: “The proportion going under this paragraph to

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my nephew, Frank Abbott, is to be divided into parts, one third (1-3) to be paid to him, one third (1-3) to his wife, and one third (1-3) to his child.” The appellant Elfers is the assignee from Frank Abbott of all of the estate and property covered by the phrase “one third to his wife” in the above-quoted provision of the will.

Upon the face of the will this provision is entirely clear. It divides the portion going to Frank Abbott into three parts, giving one part to him, another to his wife, and another to his child. It appeared, however, upon the hearing, that, at the time the will was made and at the time of the death of the deceased, Abbott had no wife. The fact was that he had been married in the year 1883 to the respondent, Effie A. Smith, and that in the year 1893 she obtained a divorce from him and after-wards married one Smith. Frank W. Abbott had never been married to any other person at the time of the death of the testator. The court decided that the person intended in the provision of the will above quoted by the term, “his wife,” was the respondent, Effie A. Smith, and distributed to her one third of the proportion otherwise going to Frank W. Abbott as a nephew. The appeal is from this portion of the decree.