or "without children," or "without leaving a lawful heir," there is a conflict of authority as to whose death is referred to. The rule of the English cases is that where there is a gift over in the event of death without issue, the death referred to must be held to mean death of the first taker at any time without issue, unless a contrary intention appears in the will, and even the introduction of a previous life estate will not alter the principle.78 The rule, however, appears to be confined to bequests of personalty. Where real property is devised in fee with a limitation over in the event of the devisee dying without issue, the death referred to is the death of the devisee during the lifetime of the testator; if the devisee survive he takes an absolute fee.80 Under certain devises, should a different construction be allowed, the devisees first

79

78 Peake V. Pegden, 2 Term R. 720; Cadogan v. Ewart, 7 Adol. & El. 637; Mahoney v. Burdett, 7 H. L. Cas. 408; Olivant V. Wright, 24 Week. R. 84.

79 Forth v. Chapman, 1 P. Wms. 663; Peake v. Pegden, 2 Term Rep. 720.

In his elaborate opinion in Cadogan v. Ewart, 7 Adol. & Ellis 636, Lord Denman said the words, "depart this life without leaving issue lawfully begotten," would, "if the question arose upon a term for years or other personal estate, now be held to mean a dying without issue living at the date of the first taker."

This distinction between devises of realty and bequests of personalty has been recognized in the United States.-Woodland v.

Wallis, 6 Md. 151; Budd v. Posey, 22 Md. 48; Wallis v. Woodland, 32 Md. 101; Allender's Lessee v. Sussan, 33 Md. 11, 3 Am. Rep. 171.

In Crooke v. De Vandes, 9 Ves. Jun. 197, where the limitation over after the devise to a grandson and the heirs of his body lawfully issuing was "if he has no such heirs." A distinction was drawn between these words and the words "if he leaves no such heirs," the limitation over being held void.

80 Home v. Pillans, 2 Myl. & K. 15, 19; Ware v. Watson, 7 De G., M. & G. 248; Clayton v. Lowe, 5 Barn. & Ald. 636; Gee v. Mayor of Manchester, 17 Q. B. (Ad. & Ell.) (N. S.) 737; Woodburne v. Woodburne, 23 L. J. Ch. 336; Doe v. Sparrow, 13 East 359.

named would take but life estates, as where the devise is to several and in case of any of them "dying without issue," their shares shall vest in the other devisees; but if any of such devisees "die and leave issue," such issue shall take the share of their deceased parents. The death of the devisees, either with or without children, is certain. If the death referred to is that of a devisee at any time, no devisee could take an estate in fee since if he died without issue his share would pass to the others, not as heirs but as purchasers under the terms of the will; and if he died leaving issue, such issue would take in like manner as purchasers and not as heirs. Therefore no devisee would have an estate of inheritance of which he could dispose. So the death referred to is that during the lifetime of the testator and all devisees who survive the testator take a fee simple.81

§ 867. The Same Subject: American Decisions.

In the United States the decisions are conflicting, but the weight of authority seems to be in favor of the English rule as to real property, that a devise to one with a limitation over should the devisee "die without issue," vests a title in fee in the devisee if he survive the testa

tor.82 The same rule applies as to personalty.83 Where a devise is to one with a limitation over in the event of his death "without issue," the reasons for the rule holding that the death referred to means during the life of the testator do not apply. In the latter case there would be no issue of the devisee to be protected, since the limitation over would take effect only in the event of no issue. One principle of construction, however, is that an estate should vest at the earliest moment, yet the intention of the testator must prevail. Where the will is silent and its context affords no indication of intention other than that disclosed by the absolute gift with a limitation over, the terms of the will will be given their legal effect; but there is a tendency on the part of the courts to seize upon slight circumstances to vary this construction. The rule above mentioned regarding a limitation over if the firstnamed devisee "die without issue," being based more on

82 Briggs v. Shaw, 9 Allen (91 Mass.) 516; Livingston v. Greene, 52 N. Y. 118; Embury v. Sheldon, 68 N. Y. 227; Quackenboss v. Kingsland, 102 N. Y. 128, 55 Am. Rep. 771, 6 N. E. 121; Vanderzee v. Slingerland, 103 N. Y. 47, 57 Am. Rep. 701, 8 N. E. 247; In re Biddle's Estate, 28 Pa. St. 59; In re Mickley's Appeal, 92 Pa. St. 514; Stevenson v. Fox, 125 Pa. St. 568, 11 Am. St. Rep. 922, 17 Atl. 480; King v. Frick, 135 Pa. St. 575, 20 Am. St. Rep. 889, 19 Atl. 951; Coles v. Ayres, 156 Pa. St. 197, 27 Atl. 375.

The decisions in Pennsylvania are conflicting; however, the rule seems to be that a devise to one with a limitation over should he

"die without issue" has reference to the failure of issue indefinitely, that the first-named devisee takes an estate in fee tail which, if he leave issue, passes to them ad finitum by descent as tenants in tail. -Barber v. Pittsburg, Ft. W. & C. R. Co., 166 U. S. 83, 41 L. Ed. 925, 17 Sup. Ct. 488; Eichelberger v. Barnitz, 9 Watts (Pa.) 447; Lawrence v. Lawrence, 105 Pa. St. 335; Reinoehl v. Shirk, 119 Pa. St. 108, 12 Atl. 806; Ray v. Alexander, 146 Pa. St. 242, 23 Atl. 383; In re Hoff's Estate, 147 Pa. St. 636, 23 Atl. 890.

Compare: Hill v. Hill, 74 Pa. St. 173, 15 Am. Rep. 545.

83 Allender's Lessee v. Sussan, 33 Md. 11, 3 Am. Rep. 171.

precedent than on reason, causes the courts to closely scrutinize the will and to give effect to the intention of the testator. 84

§ 868. In What Proportion Beneficiaries Collectively Designated Take; per Capita or per Stirpes.

The decisions are hopelessly in conflict as to the proportions taken by the various heirs, relatives, and the like, when designated as beneficiaries collectively, whether they take per stirpes or per capita. First, it may be said that the intention of the testator will prevail. Further than this, the cases may be roughly divided into those wherein the will names the beneficiaries specifically or indicates them by positive description; those wherein the beneficiaries can be ascertained only by reference to the statutes of distribution; and those wherein the will indicates by the use of such words as "equally" or "share and share alike," the extent of the gift to each beneficiary.

One line of authorities holds that where the testator has left undetermined the proportions in which his beneficiaries are to take, the courts, favoring equality, will direct the distribution to be per capita rather than per stirpes.85 Thus, "where a gift is to the children of A and B, or to the children of A and the children of B, they take per capita, not per stirpes."'86 The rule is the same

84 Buel v. Southwick, 70 N. Y. 581; Hennessy v. Patterson, 85 N. Y. 92; Nellis v. Nellis, 99 N. Y. 505, 3 N. E. 59. See, also, Vanderzee v. Slingerland, 103 N. Y. 47, 57 Am. Rep. 701, 8 N. E. 247; Shutt v. Rambo, 57 Pa. St. 149; Middleswarth's Admr. v. Blackmore, 74 Pa. St. 414, 419.

85 Huntress v. Place, 137 Mass. 409; Losey v. Westbrook, 35 N. J. Eq. 116; Howell v. Tyler, 91 N. C. 207; Kimbro v. Johnston, 15 Lea (83 Tenn.) 78.

86 De Laurencel v. De Boom, 67 Cal. 362, 7 Pac. 758; Maddox v. State, 4 Har. & J. (Md.) 539; Brittain v. Carson, 46 Md. 186; Schaf

when a devise or legacy is given to a person and the children of another person;s also where there are gifts to a person described as standing in a certain relation to the testator and to the children of another person standing in the same relation. Thus, under a gift "to my son A, and to the children of my son B," the former will take a share equal to that of one of the children of the latter.ss Again, if the gift be made to A and B and their children, or to a class and their children, each individual, the parents as well as children, will take an equal proportion of the fund.89

A gift to a mother and her children simpliciter will confer upon each an equal portion." Where property is

fer v. Kettell, 14 Allen (96 Mass.) 528;

Hill v. Bowers, 120 Mass. 135; Farmer v. Kimball, 46 N. H. 435, 88 Am. Dec. 219; Smith v. Curtis, 29 N. J. L. 345; Post v. Herbert's Exrs., 27 N. J. Eq. 540; Ex parte Leith, 1 Hill's Eq. (S. ̊C.) 153; Skull v. Johnson, 55 N. C. (2 Jones Eq.) 202; McNeilledge v. Barclay, 11 Serg. & R. (Pa.) 103, McNeilledge v. Galbraith, 8 Serg. & R. 43, 11 Am. Dec. 572; In re Young's Appeal, 83 Pa. St. 59; Hoxton v. Griffith, 18 Gratt. (Va.) 574.

As the repetition of such connective words as "of," "to," or "and," see Brown v. Ramsey, 7 Gill (Md.) 347; Farmer v. Kimball, 46 N. H. 435, 88 Am. Dec. 219; In re Fissel's Appeal, 27 Pa. St. 55, 57; In re Risk's Appeal, 52 Pa. St. 269, 273, 91 Am. Dec. 156; McMaster v. McMaster's Exrs., 10 Gratt. (Va.) 275.

87 Butler v. Stratton, 3 Bro. C. C. 367; Blackler v. Webb, 2 P. Wms. 383; Amson v. Harris, 19 Beav. 210; Pitney v. Brown, 44 Ill. 363; McCartney v. Osburn, 118 Ill. 403, 9 N. E. 210; Smith v. Curtis, 29 N. J. L. 345; Fisher v. Skillman's Exrs., 18 N. J. Eq. 220; Burnet's Exrs. v. Burnet, 30 N. J. Eq. 595. See, however, Talcott v. Talcott, 39 Conn. 186; Haskell v. Sargent, 113 Mass. 341; Rand v. Sanger, 115 Mass. 124; Allison v. Chaney, 63 Mo. 279; Sea v. Winston, 7 Humph. (26 Tenn.) 472; Hoxton v. Griffith, 18 Gratt. (Va.) 574.

88 Lady Lincoln v. Pelham, 10 Ves. Jun. 166; Blackler v. Webb, 2 P. Wms. 383; Payne v. Webb, L. R. 19 Eq. 26.

89 Cunningham V. Murray, 1 De Gex & S. 366; Murray v. Murray, 3 Ir. Ch. Rep. 120.

90 Cannon v. Apperson, 14 Lea (82 Tenn.) 553.