APPEALS FROM, AND IN ERROR TO, THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE HOLMES delivered the opinion of the court.
These are cross appeals from the Court of Appeals of the District of Columbia. 14 App. D.C. 337. To avoid all questions of form there are also writs or error on the same grounds. The appeal of Charles McIntire is from the overruling of exceptions to the final account of the administrator with the will annexed of the estate of David McIntire, and presents two
questions, one of construction and one of administration outside the terms of the will. The probate of the will already has been before this court. 162 U.S. 383.
The question of construction is the main one. It is whether the children of the testator's brothers, Edwin and Charles, take per capita or per stirpes under the residuary clause of the following will:
"This is my last will and testament.
"I David McIntire. tin-plate worker, of this city (of) do will, bequeath, or devise, to my nephews, and nieces, that is to say, from July the first. 1st eighteen hundred and fifty-four. 1854
"To the opening of. on reading of this, paper. one thousand three hundred and fifty dollars and sixty-four cents ($1,350.64) is to be calculated at six (6) per cent. interest
"That amount whatever it may be is to be given to each of my brother Edwin's children. The remainder if any, is to be equally divided between my Brothers Edwin and Charles children. David McIntire."
There was an addition and also an earlier document of January 1, 1880, which it is unnecessary to copy. At the date of the will the brother Charles was living and had two sons, Charles and Henry, the latter of whom died before the testator. The brother Edwin had died, leaving six children, one of whom died before the testator. The testator held ...