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two or more persons or groups, means their heirs, was used to designate the a per capita, and not a per stirpes, individuals as members of a single distribution. The court stated that class who would take upon the death this rule had been adhered to in Ken- of the children, and, by using the tucky in unbroken line of de- words “the same be divided equally," cisions, and was, with the qualifica- the testator intended to fix the tion, "unless a contrary intention is quantity of interest which would dediscoverable from the will," univer- volve upon each, so that, upon the sally recognized.

death of one of the children, leaving The heirs of the testator take per as heirs a brother and sister and decapita under

residuary clause scendants of a deceased brother and which provides that the proceeds of sister, the heirs of that child should the sale of the remainder of the es- take per capita, and not per stirpes. tate are to be equally divided among And since the terms "share and the heirs, naming them, with the spe- share alike," and "jointly and equalcific instruction that the devisees ly," have been treated as synonymous and legatees under the clause are to expressions in earlier decisions, the take per capita. Jackson V. Baker use of these expressions in a will di(Ala.) supra. The court said: “That recting that the property of the testathe proceeds shall be equally' di- tor should, on certain conditions, devided between the devisees and the scend jointly and equally to the heirs legatees therein named, and that they of the testator and the heirs of his shall take 'per capita,' exclude all wife, indicates the intention of joinidea of an intention by the testator ing two naturally separate groups inthat any of them should take per to a single group or

lass, and the stirpes, and to so hold would violate will must be construed to order a per the plain letter of the will, as well as capita distribution among the memthe only reasonable intention to be bers of the class composed of the gathered from the language used." heirs of the testator and his wife.

In Courtenay v. Courtenay (1921) Rogers v. Burress (Ky.) supra. 138 Md. 204, 113 Atl. 717, where the In the effort to sustain a judgment will directed that the estate was to be of the lower court which decreed a "divided equally between my brother, per stirpes distribution, stress was William Courtenay,

and the laid upon the fact that by the mere three sons of my deceased brother chance that the wife's mother sur

[naming them] and their vived the testator, but his father did mother

or their respective not, the heirs of the testator, by heirs and assigns, share and share reason of their number, would, under alike," the court stated that this a per capita distribution, receive most language bequeathing the estate of his estate, and that that would not "equally," and "share and share be in accordance with the testator's alike,” plainly contemplated a distri- intention, since he must have anticbution per capita, and while the word ipated that his wife's mother, as well "between" usually indicated a divi- as his own father, would die before sion in two parts, it could not be given his own death, and he therefore such effect consistently with the in- really contemplated and desired that tent expressed by the provision as a his own brother and sisters, and those whole, but would be treated as equiv- of his wife, about equal in number, alent to "among,” in which sense the should share his estate as two sepaword was often used.

rate classes; the reason advanced to And in Re Flint (1922) 118 Misc. support that belief was that the testa134, 192 N. Y. Supp. 630, it was held 'tor and his wife each owned about the that the word “heirs," used in the same portion of a farm which they clause in a will creating a trust for had operated together, and from which each of the children of the testator, they had jointly made what personal which directed at their death that property he owned and disposed of by the same be divided equally between his will. The court of appeal, in re


ply to that argument, said that even if of a will which provides that the resiit could resort to extraneous facts and due of the estate is to be invested and circumstances to vary the plain pro- the income derived therefrom paid, visions of the will, it could not ignore one third to each of three children, the fact that the wife's separate es- and, upon the death of either benetate, which was not much less than ficiary, the respective share to be paid that of the testator, passed entirely to their issue until all the beneto her heirs, and if it was testator's ficiaries are dead, when the "said desire that the heirs of himself and his trust shall cease and the corpus be diwife should each receive approxi- vided equally among their surviving mately an equal amount from their children,” must be distributed per joint efforts and savings, that result capita in order to satisfy the direction happened to be more nearly accom- that the corpus be distributed equally plished by the construction which, in among the class of persons described, the court's judgment, the language since a distribution per stirpes would of the will demanded,-i. e., a con- result in an unequal division of the struction requiring a per capita dis- estate among the designated remaintribution,-than by a construction re- dermen. Requardt v. Safe Deposit & quiring a per stirpes distribution. T. Co. (1923) 143 Md. 431, 122 Atl.

In Cliff v. Cliff (1920) 47 N. B. 302, 526. In answer to the argument that, it was held that a provision of a will as the testator had adopted the per directing: “All the residue of my es- stirpes method of distribution as to tate both real and personal are to be the income of the trust estate, on the divided, share and share alike among death of the beneficiary for life durmy brothers and sisters living and my ing the period of the fund that he deceased brothers' and sisters' chil- presumably intended the same princidren which are living”—was clear and ple to be applied to the division of the free from ambiguity, and undoubtedly corpus, the court said that the prodirected that the residue of the estate vision as to the payment of income be divided per capita among the was expressly made operative only unbrothers and sisters and the children til the death of the last surviving legaof deceased brothers and sisters who tee for life, and did not reflect upon were living at the time of testator's the question relating to the disposition death. And the construction of this of the corpus. And see also Re Farmprovision will not be changed to a ers' Loan & T. Co. (1921) 231 N. Y. stirpital distribution by reason of a 41, 132 N. E. 562, infra, under headsubsequent sentence in the same pro- ing, “—under a bequest to issue;" vision of the will which the court con- Gee's Petition (1922) 44 R. I. 132, 115 strued as a direction that a nephew, Atl. 716; Giles v. Von Cain (1923) the son of a living sister, should take W. Va. 117 S. E. 488, infra, under one half as much as “my brothers and heading, “—under a bequest to the sisters," in view of the clear language heirs of the testator or of some other used above.

person.” And it has been held that a devise But in Lee v. Roberson (1921) 297 of a portion of an estate to be divided Ill. 321, 130 N. E. 774, where the will equally, share and share alike, among provided that if the legatee named the heirs at law, and also to A and her should die without heirs, the estate children, shows an intention on the willed him should be divided equally part of the testator to place A and her among the testator's living heirs, the heirs in the same class with the heirs court held that, upon the death of the at law, and the fund should be divided legatee without heirs, the estate share and share alike, and the mem- passed to the two surviving daughters bers of the class take per capita. and to the other descendants of the Rowley v. Currie (1923) — N. J. Eq. testator living at the death of the - 120 Atl. 653.

legatee, and that such descendants The distribution of the corpus of a

took per stirpes. trust fund under the residuary clause And under residuary clause

31 A.L.R.-51.


which directed that the residue of the of a person named in the will before estate should go, share and share the termination of a trust created alike, to the children, naming them, thereby, or before the death of the and to two grandchildren, sons of a testator, the share which the deceased deceased daughter of the testator, it would have received, if living, shall be was held that, in view of a subsequent paid to his or her lawful heirs, and provision of the will appointing a which further provides that the term trustee for the grandsons, which "lawful heirs” shall be deemed to twice referred to the share of the mean the persons to whom the real esgrandsons, the distribution was to be tate would descend in cases of intes. per stirpes and not per capita. Mens- tacy, under the state laws, the reladorf's Estate (1920) 29 Pa. Dist. R. tives of a legatee who died before the 863. The court stated that while the termination of the trust period, take words "share and share alike" usually per stirpes, and not per capita by purindicated a per capita distribution, if chase. Re Barker (1921) 230 N. Y. there was any doubt in the interpre- 364, 130 N. E. 579. tation, the policy of the Statute of Dis- And see Clark v. Todd (1923) 310 tribution would be followed, and the Ill. 361, 141 N. E. 758, infra, under distribution made per stirpes.

heading, -"under a bequest to the And in Hartford-Connecticut Trust heirs of the testator or of some other Co. v. Beach (1924) Conn. 123 person." Atl. 921, the court stated that a distri

- effect of provision for stirpital divibution per stirpes might be upheld in sion elsewhere in will. spite of the use of the words “distri

(Supplementing annotation in 16 buted equally,” if the will otherwise

A.L.R. 30.) disclosed an intention to make a per

See Stamford Trust Co. v. Lockstirpes distribution.

wood (Conn.) infra, under heading, - use of word “between."

“—under a bequest to issue,” and Re(Supplementing annotation in 16 quardt v. Safe Deposit & T. Co. (1923) A.L.R. 26.)

143 Md. 431, 122 Atl. 526, supra, unA provision in a will that, upon the der heading, “_effect of direction death of the testator's children and that legatees shall take equally." the execution of a special trust, the

- effect of direction that legatees shall remainder of the estate should be di

take per stirpes. vided “between those of my grand- (Supplementing annotation in 16 children as shall then be living and A.L.R. 32.) the issue of such grandchilden as It has been held that, under a deshall have died and left issue them

vise to “my said wife and to my sons surviving," clearly indicates the de

and daughters and their heirs and assire of the testator that the final dis

signs forever, share and share alike, tribution of the estate is to be made

per stirpes and not per capita,” the per capita. Granger v. Duryea (1922) wife and each child should take in 218 Mich. 616, 188 N. W. 372, affirming equal shares. Gee's Petition (1922) a decree dividing the property per 44 R. I. 132, 115 Atl. 716. In answer capita between the the grandchildren.

. to the claim of the widow that the And see Courtenay v. Courtenay clause indicated two classes, one con(1921) 138 Md. 204, 113 Atl. 717, sisting of herself and the other of the supra, under heading, "In general

sons and daughters, the court obeffect of direction that legatees shall served: "Were it not for the addition take equally."

of the words 'per stirpes and not per - effect of reference to statute of dis- capita,' there would be no uncertain. tribution.

ty, as the words 'share and share (Supplementing annotation in 16 alike' direct an equal distribution A.L.R. 29.)

among all of the persons entitled. Under the provision of a will which 'Per stirpes' is thus defined in declares that in any case of the death Bouvier's Law Dictionary: ‘By or ac


cording to stock or root; by right at law, excluding the two named, of representation. When descendants should be according to the laws of take by representation of their par- such state as would have jurisdiction ent, they are said to take per stirpes; in the premises, the court affirmed a that is, children take among them the decree of the chancellor awarding a share which their parent would have distribution among the heirs at law taken, if living.' The primary and per stirpes, stating that where, as in natural construction of this technical this case, it was doubtful as to who phrase is to consider it applicable to was to take under the designation the issue of the children, in the event "heirs at law," the presumption was of the decease of their parent before that the testator intended the properthe testator, rather than to the chil- ty to be distributed in accordance dren of the testator. Whatever ambi- with the laws of descent, and the will guity there is arises from the inexact would be construed in favor of those use of a legal phrase. Without this nearest of kin to the testator; and phrase the meaning of the clause is that, when the statute is invoked to clear, and is expressed in language determine the persons who are to take, easily understood by a layman. If it must, in the absence of an expressed the two phrases are irreconcilable, intent in the will, be followed in deterthat construction should be preferred mining the quantity the beneficiaries which gives effect to the expression are to take. of intention made in plain and ordi- But it was said in the Clark Case nary terms, rather than in technical (III.) supra, that if the testator had phraseology."

used the word "heirs" in the codicil to And in Re Striker (1922) 119 Misc. describe the persons who were to take, 286, 196 N. Y. Supp. 111, where the and not to fix the interest which testator devised property, the would vest in each person by virtue death of a named child, excepting the of his or her heirship, then the perissue of such child, to testator's chil- sons described would take per capita. dren then living in equal shares, per The word “heir,” in a devise to P. stirpes and not per capita, and it ap- and his wife for life, the remainder to peared from other parts of the will their heir, and, if no heir, to be divided that the intent of the testator was among the brothers and sisters of the always to provide equally for his chil- said P., is to be given the interpredren and their issue, it was held that tation of child, children, or issue of the issue of deceased sons and the marriage of the said P. and his daughters should share per stirpes wife, such descendants to take per with the only living child of the testa- stirpes. Todd v. St. Mary's Church tor.

(1923) - R. I. — 120 Atl. 577. And see Stamford Trust

Co. v.

In the absence of anything to evince Lockwood (1922) 98 Conn. 337, 119 an intention of the testator to disAtl. 218, infra, under heading, "-un- criminate between his grandchildren, der a bequest to issue,” and Romer v. they take per capita, and not per Romer (1921) 300 Ill. 335, 133 N. E. stirpes, under a will which directs 257.

that the testator's property shall be Under various forms of bequest-under

divided equally between the heirs of a bequest to the "heirs” of the testa- his three sons; for, as all the heirs tor or of some other person.

stood in the same degree of relation(Supplementing annotation in 16 ship to the testator, it cannot be asA.L.R. 33.)

sumed that he preferred any one of In Clark v. Todd (1923) 310 Ill. 361,

them. Giles v. Von Cain (1923) 141 N. E. 758, where a will devised the W. Va. 117 S. E. 488. property to the testator's "heirs at And also Jackson Baker law," and a codicil, executed for the (1922) 207 Ala. 519, 93 So. 469, supra, express purpose of excluding two per- under heading, "In general-effect sons who would otherwise take as of direction that legatees shall take heirs at law, provided that the heirs equally;" Re Barker (1921) 230 N. Y.



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364, 130 N. E. 579, supra, under head- under a devise of a share in trust to a ing, “_effect of reference to statute daughter for her life, and upon her of distribution,” Re Flint (1922) 118 death leaving lawful issue surviving, Misc. 134, 192 N. Y. Supp. 630, supra, then to such issue, to be equally diunder heading, "In general-effect of vided between them, was to be per direction that legatees shall take stirpes, the question was not, as in equally.”

most of the cases cited in the anno

tation, as to the relative propor- under a bequest to the “next of kin," of the testator or of some other per

tions in which the members of the

class of beneficiaries should take, but (Supplementing annotation in 16 whether two grandchildren, son of a A.L.R. 49.)

living daughter, should take at all, In NEW YORK L. INS. & T. Co. v. the decision being that the distriWINTHROP (reported herewith) ante,

bution was to be per stirpes among 791, it is held that the distribution to the children, to the exclusion of the the next of kin, under a provision di- grandchildren (reversing the decision recting a trustee to convey the trust of the appellate division in (1920) 193 fund to “the lawful issue of Mrs. App. Div. 80, 183 N. Y. Supp. 339, Nellie Bostwick Morrell share and holding that each of the grandchilshare alike, or in default of such issue dren was entitled to share equally to the next of kin of Mrs. Morrell,” is with the children in the distribution to be made per stirpes, where by of the trust fund). For other cases on statute the rule that the distribution this aspect of the subject, see annoof a gift to issue is to be treated as tation in 2 A.L.R. 963, and 5 A.L.R. per capita has been changed to a per 195, on the question whether, under a stirpital distribution, and the ques- bequest to “issue," they take per tion of the mode of distribution to the stirpes or per capita. next of kin is still open.

Where a will devises property of

the testator in trust, one fourth to - under a bequest to testator's grand

each of three children and one eighth children. (Supplementing annotation in 16

to each of two grandchildren, and A.L.R. 51.)

provides that upon the death of any The distribution under a provision

child or grandchild such portion of directing property to "be distributed

the principal as such child or grand

child should have had the income of equally to all my grandchildren and the issue of such deceased grandchil- during life is to be paid over to the

lawful issue, with the further prodren as may be born during my lifetime, if any, they to take per stirpes

vision that in case both grandchildren and not per capita," is, where all the

died without lawful issue their shares grandchildren are living, to be per

should be divided equally among the

lawful issue of the three children capita, for the provision directing

(naming them), per stirpes, the deproperty to be distributed equally to grandchildren is a gift to a class,

scendants of any deceased child or each member of which is to take per

grandchild take per stirpes, and not capita. Hartford-Connecticut Trust

per capita. Stamford Trust Co. v.

Lockwood (1922) 98 Conn. 337, 119 Co. v. Beach (1924) Conn. 123

Atl. 218. The court stated that a per Atl. 921.

capita distribution would, under the - under a bequest to issue.

facts of the case, result in an unequal (Supplementing annotation in 16 distribution of the testator's estate A.L.R. 55.)

among the several branches of the In Re Farmers' Loan & T. Co. family, while a distribution per stir(1921) 231 N. Y. 41, 132 N. E. 562,


among the issue of whatever holding that where, from the whole degree, the issue of each life tenant context of the will, it appears that taking as a class by the right of equality of distribution was dominant representation, satisfied not only the in the testator's mind, the distribution language of the will and the intent of

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