## Facts

- William E. Harreld executed a will on July 25, 1961, and died on February 5, 1967.
- The will gave about one-half of the estate to his surviving wife and disposed of the residue in Article II(B).
- Article II(B) devised the residue in equal shares to the testator’s son and “each of my grandchildren … as shall survive me,” then listed five grandchildren by name, and provided that if the son or any grandchild predeceased the testator, that share would go “to my said son and/or grandchildren per capita.”
- At execution, the son had five children; a sixth child, Lee Ann Harreld, was born on December 4, 1961, after the will’s execution but before the testator’s death.
- Evidence indicated the testator did not know at execution that a sixth grandchild was expected, and he was close to all grandchildren after Lee Ann’s birth.
- The executor petitioned the chancery court for construction of the will to determine the residuary beneficiaries.
- The chancery court ruled the residue was a class gift to the son and all grandchildren, including Lee Ann.

## Issues

1. Whether the residuary clause created a gift to the five named grandchildren only or a class gift to “my grandchildren” that included a later-born grandchild alive at the testator’s death.

## Decision

- The Supreme Court of Mississippi affirmed.
- The court held the residuary bequest was a class gift to the son and the testator’s grandchildren, not limited to the five named individuals.
- Lee Ann Harreld, though unnamed, was included as a member of the class and took an equal share of the residue.

## Legal Principles

- The controlling inquiry in construing a will is the testator’s intent, determined from the will as a whole and the circumstances surrounding execution.
- A devise using a group description (e.g., “my grandchildren”) generally indicates a class gift, especially where the class is capable of change in number before the testator’s death.
- Naming then-living members after using class language may be treated as identification of existing class members rather than an intent to restrict the gift to named individuals.
- A provision reallocating a deceased beneficiary’s share among remaining beneficiaries per capita supports a class-gift construction by reflecting contemplation of a changing group.
- Absent clear language of exclusion, later-born class members alive at the testator’s death are included in a class gift.

## Conclusion

The residuary clause’s initial class description (“each of my grandchildren”), its per capita reallocation language, and the surrounding circumstances supported construing the devise as a class gift, so the later-born grandchild living at the testator’s death shared equally with the other grandchildren.


Cain v. Dunn, 241 So. 2d 650 (Miss. 1970)