Opinion
10-23-1900
ARCHER v. MORRIS et al.
R. H. Ingersoll, for complainant. H. Wooton, for defendant James Morris. Peter Backes, for defendant St. Francis Hospital and others.
Bill by Pierce Archer, executor of the estate of Daniel Morris, against James Morris and others, to obtain the construction of a will.
R. H. Ingersoll, for complainant.
H. Wooton, for defendant James Morris. Peter
Backes, for defendant St. Francis Hospital and others.
REED, V. C. The testator gave 30 legacies, varying from $1,000 to $40,000, altogether amounting to $150,000. After the payment of these legacies, and the debts, which reached about $8,000, there is left a sum to be distributed in the neighborhood of $42,000. This sum is disposed of by the testator in the following clause: "After the payment of the said legacies, any balance remaining of my estate I direct my executor to distribute one half of the said balance ex aequs among the Home for the Aged and the Asylum at Hopewell, and the other half ex aequs among the other bequests and legacies." The query is whether the one-half of the balance is to be divided between the legatees in proportion to the amount of the other legacies theretofore given or to be divided equally between them. If the words of the clause had stood thus: "I direct my executor to distribute the one half of said balance among the Home for the Aged and the Asylum at Hopewell, and the other half among the other bequests and legacies,"— there would not have existed a doubt that the distribution was to be upon the basis of equality. Is this result changed by the employment of the words "ex aequs"? The testator was a college graduate, fond of quoting from the Latin poets, and of using Latin terms. He meant to use an inflection of the word "aequus." It is entirely clear that he meant "ex sequo." "Equus" means "even; equal." From it comes the word "equity," which equality is said to be. These words, then, instead of modifying or changing the meaning of the clause, if read without them, fortify that meaning.
In respect to the affidavit filed by consent giving the language of the testator, after the execution of the will, as to the meaning of these words, it is to be remarked that the affidavit is inadmissible, and, if admissible, it casts no light upon their interpretation. I think the executor should divide one half of the remainder equally between the Home for the Aged and the Asylum of Hopewell, and the other half equally between the other legatees.