Estate of Seay

WILBUR, J.

The controversy in this case arises upon partial distribution and involves a determination of the meaning of the following clause in the will, dated November 28, 1902: “When all the devisees and legatees are fully paid what has been bequeathed to them the residue of my estate, if any, shall be divided as follows: To Ida Dowler, $2500.00, to Nannie Marsh, Jas. A. Marsh, $2000.00, five hundred of-which to be used to pay for dress, expenses and dues to the Military Order of the Loyal Legion of the U. S. Mo. Commandery. To Maud Woodruff if married $100, if single $500 —Minnie Carhart $100 (one hundred dollars). Sue E.

[305]

Sanders $1000.00

G.

E. Marsh, $500.00 Ralph M. Seay upon the sole condition that he has entirely quit drinking for at least one year, $2500.00, otherwise nothing except what has heretofore been given. Earl Seay if married $2000, if single $1000—W. J. Seay if he shall be married $1000, Lulu Y. Sigler $2500.00. If there are not enough assets to pay the above bequests, and yield funds to carry out and pay the trusts herein created, then they shall be paid

pro rata.”

Appellants claim that by this clause of the will it was intended to dispose of the remainder of the estate, and that inasmuch as the estate is worth three hundred thousand dollars more than is otherwise disposed of by the will, this excess amount should be distributed among those mentioned in the above clause in proportion to the respective amounts they were to receive by said clause. The testator declared in the next clauses in his will, “I will make my gifts without regard to the disposition of my property here made, which shall not be considered as advancements. I expect also to make some charitable and public donations which will consume more or less of my estate. I intend to do something for poor children in the way of an industrial school or orphans’ home, and. to contribute to a public library. But the town and the public must take holt and contribute.” The opening clause of the will contains the following recital: “Having seventeen nieces and nephews all of whom are worthy—all of whom have heretofore received financial help from me in proportion to their needs the prodigal and unfortunate receiving more than the rest, and many of them being more or less needy. In making the following disposition of my property I am yet mindful of what I have done for them and they for me, and of their present and prospective needs. ’ ’