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directed to be divided "equally between" the wife and children of the testator, the wife takes a share equal only to that of each child.91 So, again, where a testator uses the word "heirs" as applied to brothers and sisters and to children of living and deceased brothers and sisters in such a way as to render it evident that all of them were upon the same footing in his mind, and finally gives the residue to be divided equally among his "heirs," the brothers and sisters and children will take per capita.92 The foregoing rule, however, is not absolute, and will readily yield to a different intention appearing in the will.93 In modern times the rule has been applied with reluctance by some courts, while by others it has been wholly rejected.94 The construction will be overcome by the faintest showing of a different intent on the part of the testator.95

8869. The Same Subject: When Reference Is Had to the Statutes of Distribution.

Where a devise or legacy is to the testator's "relations," "heirs," "heirs at law," or the like, the statute of

91 In re Lacey, 3 Demarest

(N. Y.) 61.

92 McKelvey v. McKelvey, 43 Ohio St. 213, 1 N. E. 594.

93 Clark v. Lynch, 46 Barb. (N. Y.) 69; Ferrer v. Pyne, 81 N. Y. 281.

94 Raymond V. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688; Minter's Appeal, 40 Pa. St. 111.

95 Raymond V. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688; Lachland's Heirs v. Downing's Exrs., 11 B. Mon. (Ky.) 32; Alder v. Beall, 11 Gill & J. (Md.) 123; Balv. Haynes, 14 Allen (96

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Mass.) 204; Burnet's Exrs. v. Burnet, 30 N. J. Eq. 595; Gilliam v. Underwood, 56 N. C. 100; Howell v. Tyler, 91 N. C. 207; In re Young's Appeal, 83 Pa. St. 59; Hoxton v. Griffith, 18 Gratt. (Va.) 574.

As to how far a direction "to divide" the estate governs the construction, see Pruden v. Paxton, 79 N. C. 446, 28 Am. Rep. 333.

As to the use of the preposition "between," there being more than two beneficiaries, see Ward v. Tompkins, 30 N. J. Eq. 3; Herneisen v. Blake, 1 Phila. (Pa.) 131.

distribution must be resorted to in order to ascertain who will take. So far the authorities are in harmony; but the question then arises as to whether the statute may be resorted to to determine the extent of the gift to each beneficiary, whether each will take as an individual or whether some will take only by right of representation. The general rule is that where reference must be had to the statutes regulating the descent and distribution of estates to ascertain what persons are entitled to take under a devise or bequest by a general description, such as to "heirs" or to "next of kin," the provisions of the statute must also be observed as to the quantity each shall take, there being no contrary intent expressed in the will. The distribution would therefore be per stirpes.96

96 In re Porter's Trust, 4 Kay & J. 188; Cotton v. Cotton, 2 Beav. 67; Jacobs v. Jacobs, 16 Beav. 557; Bullock v. Downes, 9 H. L. Cas. 1, 17; Masters v. Hooper, 4 Bro. C. C. 207; Devisme v. Mellish, 5 Ves. Jun. 529; Stamp v. Cooke, 1 Cox C. C. 234; Rowland v. Gorsuch, 2 Cox C. C. 187; Raymond v. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688; Conklin v. Davis, 63 Conn. 377, 28 Atl. 537; Kelley v. Vigas, 112 Ill. 242, 54 Am. Rep. 235; Thomas v. Miller, 161 Ill. 60, 43 N. E. 848; Wood v. Robertson, 113 Ind. 323, 15 N. E. 457; West v. Rassman, 135 Ind. 278, 34 N. E. 991; Tillinghast v. Cook, 9 Metc. (50 Mass.) 143; Daggett v. Slack, 8 Metc. (49 Mass.) 450, 453; Houghton v. Kendall, 7 Allen (89 Mass.) 72; Balcom v. Haynes, 14 Allen (96 Mass.) 204; Bassett v. Granger, 100 Mass. 348; Bailey v.

Bailey, 25 Mich. 185; Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537; Eyer v. Beck, 70 Mich. 179, 38 N. W. 20; Roome v. Counter, 6 N. J. L. 111, 10 Am. Dec. 390; Ferrer v. Pyne, 81 N. Y. 281; Woodward v. James, 115 N. Y. 346, 359, 22 N. E. 150; Freeman v. Knight, 37 N. J. Eq. 72, 75; In re Baskin's Appeal, 3 Pa. St. 305, 45 Am. Dec. 641; In re Minter's Appeal, 40 Pa. St. 111; In re Hoch's Estate, 154 Pa. St. 417, 26 Atl. 610; Swinburne's Petition, 16 R. I. 208, 14 Atl. 850; Temple. ton v. Walker, 3 Rich. Eq. (S. C.) 543, 55 Am. Dec. 646; Dukes v. Faulk, 37 S. C. 255, 34 Am. St. Rep. 745, 16 S. E. 122; Taylor v. Fauver, (Va.) 28 S. E. 317

But see Walker v. Camden, 16 Sim. 329.

In the case of Kerngood v. Davis, 21 S. C. 183, where Mr. Jus

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Thus where a testator gave the whole or a part of his
estate to his next of kin, leaving the shares to be taken by
them doubtful, it was said by the court that it was natural
to suppose that he had the statutory form of distribution
in mind.97

tice McGowan delivers the judgment of the court, this language is used (page 207): "In such cases, after much discussion and some difference of opinion, it seems to have been settled as a rule of construction that 'wherever by the terms of description in a devise or grant resort must be had to the statute of distributions for the purpose of ascertaining the object of the gift, resort must also be had to the statute to ascertain the proportions in which the donees shall take, unless the instrument

making the gift indicates the intention of the donor that a different rule of distribution shall be pursued.'

97 In re Dunlap's Appeal, 116 Pa. 500, 9 Atl. 936.

To the same effect, see In re Minter's Appeal, 40 Pa. St. 111. Compare: Woodward v. James, 16 Abb. N. C. (N. Y.) 246.

Chief Justice McIver, in Allen V. Allen, 13 S. C. 512, 36 Am. Rep. 716, says: "If, therefore, the gift is to a class of persons designated as heirs of a particular person, then, as it is necessary to resort to the statute to ascertain who are the individuals composing the

class, resort must also be had to the statute to determine how or in what proportions such individuals shall take. This is upon the presumption that the donor, having by implication, at least, referred to the statute as to the persons who are to take, also intended that reference should be had to the statute to determine the proportions in which they should take, unless he expresses a different intention. But when he prescribes a different mode of distribution, then no such presumption can arise, and the distribution must be made in the manner prescribed."

In Fraser v. Dillon, 78 Ga. 474, 3 S. E. 695, the testatrix devised certain real estate to one of her children and to "the children" of a deceased child. It was held that the children of the deceased child took per stirpes, and not per capita. It was further ruled that, "in the absence of anything in the will to the contrary, the presumption is that the ancestor intended that his property should go where the law carries it, which is supposed to be the channel of natural descent. To interrupt or disturb this descent, or direct it in a different course, should require plain

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§ 870. The Same Subject: Directions by the Testator as to Di

vision.

A direction that land devised shall be divided between the lawful heirs of the testator's children according to the number of their heirs as shall then survive collectively, entitles the devisees to take per stirpes and not per capita.98 Where there is a direction to divide a residue pro rata among legatees who have received gifts of various amounts in the former part of the will, the residue will be distributed between the several legatees in the proportions existing between the special bequests previously given them.99 A direction that property be distributed according to the laws of the state in which the testator lives will be construed to refer to the laws in force when the will takes effect.1

§ 871. The Same Subject: Where Testator Directs Division "Equally" or "Share and Share Alike.”

The general rule just previously announced that where resort must be had to the statutes of distribution to determine who take as beneficiaries under the will, the statute will likewise determine the proportions of those who take, will yield to the intent expressed by the testator in his will. This is usually accomplished by such words as directing that the beneficiaries take "equally," "in equal parts, ""share and share alike," or kindred words. The

words to that effect." See, also, MacLean v. Williams, 116 Ga. 257, 59 L. R. A. 125, 128, 42 S. E. 485. Compare: Tiffin v. Longman, 15 Beav. 275; Best v. Farris, 21 Ill. App. 49; Richards v. Miller, 62 Ill. 417; Records v. Fields, 155 Mo. 314, 55 S. W. 1021; Stevenson v.

Lesley, 70 N. Y. 512; In re Scott's Estate, 163 Pa. St. 165, 29 Atl. 877. 98 Heath v. Bancroft, 49 Conn. 220.

99 Rosenberg v. Frank, 58 Cal. 387, Myrick, J., dissenting, p. 412. 1 Meserve v. Meserve, 63 Me. 518.

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direct expression of the testator as to the extent of the
benefit conferred on each who is to take will overcome
any presumption that he intended the distribution should
be according to the statute. The use of the expressions
above mentioned would clearly indicate the intention of
the testator as to the manner of distribution and such
direction should prevail. In such a case, no different
intention appearing elsewhere in the will to control the
construction, the beneficiaries will take per capita.

2 Blackler v. Webb, 2 P. Wms. 383, 385; Lincoln v. Pelham, 10 Ves. Jun. 166, 176; Lugar v. Harman, 1 Cox 250; Weld v. Bradbury, 2 Vern. 705; Abrey v. Newman, 17 Eng. L. & Eq. 125; Mattison v. Tanfield, 3 Beav. 132; Walker v. Griffin, 11 Wheat. (U. S.) 375, 6 L. Ed. 498; Howard v. Howard's Admrs., 30 Ala. 391; Smith v. Ashurst, 34 Ala. 208; Lord V. Moore, 20 Conn. 122; Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103, 118, 29 Am. Dec. 336; Brown v. Ramsey, 7 Gill (Md.) 347; Brittain V. Carson, 46 Md. 186; Nichols v. Denny, 37 Miss. 59; Maguire v. Moore, 108 Mo. 267, 18 S. W. 897; Farmer v. Kimball, 46 N. H. 435, 88 Am. Dec. 219; Scudder's Exrs. V. Vanarsdale, 13 N. J. Eq. 109, 113; Collins v. Hoxie, 9 Paige (N. Y.) 81, 88; Ex parte Leith, 1 Hill's Eq. (S. C.) 153; Bunner v. Storm, 1 Sandf. Ch. (N. Y.) 357, 362; Bisson v. West Shore R. Co., 143 N. Y. 125, 38 N. E. 104; Freeman v. Knight, 37 N. C. 72, 75; Burgin v. Patton, 58 N. C. 426; Hackney v. Griffin, 59 N. C. 381,

This

384; Hill v. Spruill, 39 N. C. 244;
Harris v. Philpot, 40 N. C. 324;
Johnston v. Knight, 117 N. C. 122,
23 S. E. 92; McKelvey v. McKel-
vey, 43 Ohio St. 213, 1 N. E. 594;
Ramsey v. Stephenson, 34 Ore.
408, 56 Pac. 520, 57 Pac. 195; Du-
pont v. Hutchinson, 10 Rich. Eq.
(S. C.) 1; Allen v. Allen, 13 S. C.
513, 36 Am. Rep. 716; Dukes v.
Faulk, 37 S. C. 255, 34 Am. St.
Rep. 745, 16 S. E. 122; McMaster
McMaster's Exrs., 10 Gratt.
(Va.) 275.

V.

In Rogers v. Morrell, 82 S. C. 402, 129 Am. St. Rep. 899, 64 S. E. 143, the will contained the following: "I further bequeath unto H. W. M. and W. F., L. M. and H. S. G. all my notes, mortgages and moneys to be equally divided between them, also my cot or personal property, horse, cows or utensils of any kind to be sold to the highest bidder and the money equally divided between the lega tees above named." H. W. M. was a son of the testator, the three other legatees were children of a pre-deceased daughter. The pro

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