two or more persons or groups, means a per capita, and not a per stirpes, distribution. The court stated that this rule had been adhered to in Kentucky in an unbroken line of decisions, and was, with the qualification, "unless a contrary intention is discoverable from the will," universally recognized.

The heirs of the testator take per capita under a residuary clause which provides that the proceeds of the sale of the remainder of the estate are to be equally divided among the heirs, naming them, with the specific instruction that the devisees and legatees under the clause are to take per capita. Jackson v. Baker (Ala.) supra. The court said: "That the proceeds shall be 'equally' divided between the devisees and the legatees therein named, and that they shall take 'per capita,' exclude all idea of an intention by the testator that any of them should take per stirpes, and to so hold would violate the plain letter of the will, as well as the only reasonable intention to be gathered from the language used."

In Courtenay v. Courtenay (1921) 138 Md. 204, 113 Atl. 717, where the will directed that the estate was to be "divided equally between my brother, William Courtenay, . and the three sons of my deceased brother [naming them] and their mother or their respective heirs and assigns, share and share alike," the court stated that this language bequeathing the estate "equally," and "share and share alike," plainly contemplated a distribution per capita, and while the word "between" usually indicated a division in two parts, it could not be given such effect consistently with the intent expressed by the provision as a whole, but would be treated as equivalent to "among," in which sense the word was often used.

And in Re Flint (1922) 118 Misc. 134, 192 N. Y. Supp. 630, it was held that the word "heirs," used in the clause in a will creating a trust for each of the children of the testator, which directed at their death that the same be divided equally between

their heirs, was used to designate the individuals as members of a single class who would take upon the death of the children, and, by using the words "the same be divided equally," the testator intended to fix the quantity of interest which would devolve upon each, so that, upon the death of one of the children, leaving as heirs a brother and sister and descendants of a deceased brother and sister, the heirs of that child should take per capita, and not per stirpes.

And since the terms "share and share alike," and "jointly and equally," have been treated as synonymous expressions in earlier decisions, the use of these expressions in a will directing that the property of the testator should, on certain conditions, descend jointly and equally to the heirs. of the testator and the heirs of his wife, indicates the intention of joining two naturally separate groups into a single group or class, and the will must be construed to order a per capita distribution among the members of the class composed of the heirs of the testator and his wife. Rogers v. Burress (Ky.) supra.

In the effort to sustain a judgment of the lower court which decreed a per stirpes distribution, stress was laid upon the fact that by the mere chance that the wife's mother survived the testator, but his father did not, the heirs of the testator, by reason of their number, would, under a per capita distribution, receive most of his estate, and that that would not be in accordance with the testator's intention, since he must have anticipated that his wife's mother, as well as his own father, would die before his own death, and he therefore really contemplated and desired that his own brother and sisters, and those of his wife, about equal in number, should share his estate as two separate classes; the reason advanced to support that belief was that the testator and his wife each owned about the same portion of a farm which they had operated together, and from which they had jointly made what personal property he owned and disposed of by his will. The court of appeal, in re

ply to that argument, said that even if it could resort to extraneous facts and circumstances to vary the plain provisions of the will, it could not ignore the fact that the wife's separate estate, which was not much less than that of the testator, passed entirely to her heirs, and if it was testator's desire that the heirs of himself and his wife should each receive approximately an equal amount from their joint efforts and savings, that result happened to be more nearly accomplished by the construction which, in the court's judgment, the language of the will demanded,-i. e., a construction requiring a per capita distribution, than by a construction requiring a per stirpes distribution.

In Cliff v. Cliff (1920) 47 N. B. 302, it was held that a provision of a will directing: "All the residue of my estate both real and personal are to be divided, share and share alike among my brothers and sisters living and my deceased brothers' and sisters' children which are living"-was clear and free from ambiguity, and undoubtedly 'directed that the residue of the estate be divided per capita among the brothers and sisters and the children of deceased brothers and sisters who were living at the time of testator's death. And the construction of this provision will not be changed to a stirpital distribution by reason of a subsequent sentence in the same provision of the will which the court construed as a direction that a nephew, the son of a living sister, should take one half as much as "my brothers and sisters," in view of the clear language used above.

And it has been held that a devise of a portion of an estate to be divided equally, share and share alike, among the heirs at law, and also to A and her children, shows an intention on the part of the testator to place A and her heirs in the same class with the heirs at law, and the fund should be divided share and share alike, and the members of the class take per capita. Rowley v. Currie (1923) - N. J. Eq. -, 120 Atl. 653.

The distribution of the corpus of a trust fund under the residuary clause 31 A.L.R.-51.

of a will which provides that the residue of the estate is to be invested and the income derived therefrom paid, one third to each of three children, and, upon the death of either beneficiary, the respective share to be paid to their issue until all the beneficiaries are dead, when the "said trust shall cease and the corpus be divided equally among their surviving children," must be distributed per capita in order to satisfy the direction that the corpus be distributed equally among the class of persons described, since a distribution per stirpes would result in an unequal division of the estate among the designated remaindermen. Requardt v. Safe Deposit & T. Co. (1923) 143 Md. 431, 122 Atl. 526. In answer to the argument that, as the testator had adopted the per stirpes method of distribution as to the income of the trust estate, on the death of the beneficiary for life during the period of the fund that he presumably intended the same principle to be applied to the division of the corpus, the court said that the provision as to the payment of income was expressly made operative only until the death of the last surviving legatee for life, and did not reflect upon the question relating to the disposition of the corpus. And see also Re Farmers' Loan & T. Co. (1921) 231 N. Y. 41, 132 N. E. 562, infra, under heading, "-under a bequest to issue;" Gee's Petition (1922) 44 R. I. 132, 115 Atl. 716; Giles v. Von Cain (1923) W. Va. 117 S. E. 488, infra, under heading, "-under a bequest to the heirs of the testator or of some other person."

But in Lee v. Roberson (1921) 297 Ill. 321, 130 N. E. 774, where the will provided that if the legatee named should die without heirs, the estate willed him should be divided equally among the testator's living heirs, the court held that, upon the death of the legatee without heirs, the estate passed to the two surviving daughters and to the other descendants of the testator living at the death of the legatee, and that such descendants took per stirpes.

And under a residuary clause

which directed that the residue of the estate should go, share and share alike, to the children, naming them, and to two grandchildren, sons of a deceased daughter of the testator, it was held that, in view of a subsequent provision of the will appointing a trustee for the grandsons, which twice referred to the share of the grandsons, the distribution was to be per stirpes and not per capita. Mensdorf's Estate (1920) 29 Pa. Dist. R. 863. The court stated that while the words "share and share alike" usually indicated a per capita distribution, if there was any doubt in the interpretation, the policy of the Statute of Distribution would be followed, and the distribution made per stirpes.

And in Hartford-Connecticut Trust Co. v. Beach (1924) - Conn. —, 123 Atl. 921, the court stated that a distribution per stirpes might be upheld in spite of the use of the words "distributed equally," if the will otherwise disclosed an intention to make a per stirpes distribution.

-use of word "between."

(Supplementing annotation in 16 A.L.R. 26.)

A provision in a will that, upon the death of the testator's children and the execution of a special trust, the remainder of the estate should be divided "between those of my grandchildren as shall then be living and the issue of such grandchilden as shall have died and left issue them surviving," clearly indicates the desire of the testator that the final distribution of the estate is to be made per capita. Granger v. Duryea (1922) 218 Mich. 616, 188 N. W. 372, affirming a decree dividing the property per capita between the grandchildren. And see Courtenay V. Courtenay (1921) 138 Md. 204, 113 Atl. 717, supra, under heading, "In generaleffect of direction that legatees shall take equally."

-effect of reference to statute of distribution.

(Supplementing annotation in 16 A.L.R. 29.)

Under the provision of a will which declares that in any case of the death

of a person named in the will before the termination of a trust created thereby, or before the death of the testator, the share which the deceased would have received, if living, shall be paid to his or her lawful heirs, and which further provides that the term "lawful heirs" shall be deemed to mean the persons to whom the real estate would descend in cases of intestacy, under the state laws, the relatives of a legatee who died before the termination of the trust period, take per stirpes, and not per capita by purchase. Re Barker (1921) 230 N. Y. 364, 130 N. E. 579.

And see Clark v. Todd (1923) 310 Ill. 361, 141 N. E. 758, infra, under heading,-"under a bequest to the heirs of the testator or of some other person."

- effect of direction that legatees shall take per stirpes.

(Supplementing annotation in 16 A.L.R. 32.)

It has been held that, under a devise to "my said wife and to my sons and daughters and their heirs and assigns forever, share and share alike, per stirpes and not per capita," the wife and each child should take in equal shares. Gee's Petition (1922) 44 R. I. 132, 115 Atl. 716. In answer to the claim of the widow that the clause indicated two classes, one consisting of herself and the other of the sons and daughters, the court observed: "Were it not for the addition of the words 'per stirpes and not per capita,' there would be no uncertainty, as the words 'share and share alike' direct an equal distribution among all of the persons entitled. 'Per stirpes' is thus defined in Bouvier's Law Dictionary: 'By or ac

cording to stock or root; by right of representation. When descendants take by representation of their parent, they are said to take per stirpes; that is, children take among them the share which their parent would have taken, if living.' The primary and natural construction of this technical phrase is to consider it applicable to the issue of the children, in the event of the decease of their parent before the testator, rather than to the children of the testator. Whatever ambiguity there is arises from the inexact use of a legal phrase. Without this phrase the meaning of the clause is clear, and is expressed in language easily understood by a layman. If the two phrases are irreconcilable, that construction should be preferred which gives effect to the expression of intention made in plain and ordinary terms, rather than in technical phraseology."

And in Re Striker (1922) 119 Misc. 286, 196 N. Y. Supp. 111, where the testator devised property, on the death of a named child, excepting the issue of such child, to testator's children then living in equal shares, per stirpes and not per capita, and it appeared from other parts of the will that the intent of the testator was always to provide equally for his children and their issue, it was held that the issue of deceased sons and daughters should share per stirpes with the only living child of the testator.

And see Stamford Trust Co. v. Lockwood (1922) 98 Conn. 337, 119 Atl. 218, infra, under heading, “—under a bequest to issue," and Romer v. Romer (1921) 300 III. 335, 133 N. E. 257.

Under various forms of bequest-under a bequest to the "heirs" of the testator or of some other person. (Supplementing annotation in 16 A.L.R. 33.)

In Clark v. Todd (1923) 310 III. 361, 141 N. E. 758, where a will devised the property to the testator's "heirs at law," and a codicil, executed for the express purpose of excluding two persons who would otherwise take as heirs at law, provided that the heirs

at law, excluding the two named, should be according to the laws of such state as would have jurisdiction in the premises, the court affirmed a decree of the chancellor awarding a distribution among the heirs at law per stirpes, stating that where, as in this case, it was doubtful as to who was to take under the designation "heirs at law," the presumption was that the testator intended the property to be distributed in accordance with the laws of descent, and the will would be construed in favor of those nearest of kin to the testator; and that, when the statute is invoked to determine the persons who are to take, it must, in the absence of an expressed intent in the will, be followed in determining the quantity the beneficiaries are to take.

But it was said in the Clark Case (Ill.) supra, that if the testator had used the word "heirs" in the codicil to describe the persons who were to take, and not to fix the interest which would vest in each person by virtue of his or her heirship, then the persons described would take per capita.

The word "heir," in a devise to P. and his wife for life, the remainder to their heir, and, if no heir, to be divided among the brothers and sisters of the said P., is to be given the interpretation of child, children, or issue of the marriage of the said P. and his wife, such descendants to take per stirpes. Todd v. St. Mary's Church (1923) - R. I., 120 Atl. 577.

(Supplementing annotation in 16 A.L.R. 49.)

In NEW YORK L. INS. & T. Co. v. WINTHROP (reported herewith) ante, 791, it is held that the distribution to the next of kin, under a provision directing a trustee to convey the trust fund to "the lawful issue of Mrs. Nellie Bostwick Morrell share and share alike, or in default of such issue to the next of kin of Mrs. Morrell," is to be made per stirpes, where by statute the rule that the distribution of a gift to issue is to be treated as per capita has been changed to a per stirpital distribution, and the question of the mode of distribution to the next of kin is still open.

-under a bequest to testator's grandchildren.

(Supplementing annotation in 16 A.L.R. 51.)

The distribution under a provision directing property to "be distributed equally to all my grandchildren and the issue of such deceased grandchildren as may be born during my lifetime, if any, they to take per stirpes and not per capita," is, where all the grandchildren are living, to be per capita, for the provision directing property to be distributed equally to grandchildren is a gift to a class, each member of which is to take per Hartford-Connecticut Trust capita. Co. v. Beach (1924) Conn. Atl. 921.

123

(Supplementing annotation in 16. A.L.R. 55.)

In Re Farmers' Loan & T. Co. (1921) 231 N. Y. 41, 132 N. E. 562, holding that where, from the whole context of the will, it appears that equality of distribution was dominant in the testator's mind, the distribution

under a devise of a share in trust to a daughter for her life, and upon her death leaving lawful issue surviving, then to such issue, to be equally divided between them, was to be per stirpes, the question was not, as in most of the cases cited in the annotation, as to the relative proportions in which the members of the class of beneficiaries should take, but whether two grandchildren, son of a living daughter, should take at all, the decision being that the distribution was to be per stirpes among the children, to the exclusion of the grandchildren (reversing the decision of the appellate division in (1920) 193 App. Div. 80, 183 N. Y. Supp. 339, holding that each of the grandchildren was entitled to share equally with the children in the distribution of the trust fund). For other cases on this aspect of the subject, see annotation in 2 A.L.R. 963, and 5 A.L.R. 195, on the question whether, under a bequest to "issue," they take per stirpes or per capita.

Where a will devises property of the testator in trust, one fourth to each of three children and one eighth to each of two grandchildren, and provides that upon the death of any child or grandchild such portion of the principal as such child or grandchild should have had the income of

during life is to be paid over to the lawful issue, with the further provision that in case both grandchildren died without lawful issue their shares should be divided equally among the lawful issue of the three children (naming them), per stirpes, the descendants of any deceased child or grandchild take per stirpes, and not per capita. Stamford Trust Co. v. Lockwood (1922) 98 Conn. 337, 119 Atl. 218. The court stated that a per capita distribution would, under the facts of the case, result in an unequal distribution of the testator's estate among the several branches of the family, while a distribution per stirpes among the issue of whatever degree, the issue of each life tenant taking as a class by the right of representation, satisfied not only the language of the will and the intent of