construction of the word "equally" or the like may be controlled by the context, and this is often done.3 Thus bate court had held that because the name of H. W. M. was followed by the word "and" and because the three others were grouped together, and because of the use of the word "between," the division should be per stirpes. This was reversed on appeal. Compare: In re Baskin's Appeal, 3 Pa. St. 304, 305, 45 Am. Dec. 641; Collier v. Collier, 3 Rich. Eq. (S. C.) 555, 55 Am. Dec. 653; Bivens v. Phifer, 47 N. C. 436; Lowe v. Carter, 55 N. C. 377. 3 Kelley v. Vigas, 112 Ill. 242, 54 Am. Rep. 235, citing Richards v. Miller, 62 Ill. 417; Bassett v. Granger, 100 Mass. 348; In re Baskin's Appeal, 3 Pa. St. 304, 45 Am. Dec. 641. The above cited cases may be readily distinguished from Pitney v. Brown, 44 Ill. 363, where the devise was to certain designated persons, and no reference to the statute was required.-Kelley v. Vigas, 112 Ill. 242, 54 Am. Rep. 235. A will provided as follows: "The residue of my estate I give to the following named persons, to be divided equally among them: My sisters R. and S., the grandchildren of my deceased brother W., and the grandchildren of my deceased sisters D. and M.; meaning by this to include all the grandchildren living at the time of my decease." Held, that the grand children took per stirpes and not per capita. - Raymond v. Hillhouse, 45 Conn. 467, 29 Am. Rep. 688. In Mayer v. Hover, 81 Ga. 308, 7 S. E. 562, it was held that, under a will which provided that in a certain contingency property of a certain kind should be "divided between the children of defendant and Mary A. C. Mayer, share and share alike," the children in question and Mary A. C. Mayer took per stirpes, and not per capita. Equally Divided.-In Sharman v. Jackson, 30 Ga. 224, the court had under consideration a deed which gave certain slaves to a person for life, and provided that at his death they were "to be equally divided among the heirs of the body" of the grantee. It was held that the children of a daughter of the grantee took under the deed per stirpes, and not per capita. Judge Lyon, in referring to the words "equally divided among the heirs," says: "It is true she says equally divided, but that is to be understood and construed as that equal division made by the distri bution laws, that is, that all the heirs related to the first taker, equally, or in the same degree, should take equally, while those who were in the same line, but further removed, should take by representation, that is, all together standing in the place of the de a gift of property to such of a class as may be living at the time of division, and to another person by name, "share and share alike," confers one-half upon the latter. Under a devise "in equal shares to my nieces and nephews, and to the nieces and nephews of my former husband," one who is a niece both of the testatrix and of her former husband does not take a double portion. But where there is a gift to two nephews by name, and the residue is bequeathed generally to the testator's "nephews" as a class, the former is entitled also to take under the residuary clause." § 872. The Same Subject. 5 In some cases it has been said that "the law favors that construction of a will which will make a distribution as nearly conform to the general rule of inheritance as ceased parent, and taking but the share or proportion which is equal with the shares of the children. This is an equal division among the heirs of Wm. F. Jackson, and it is not the less so that one or more of the shares must again be subdivided into as many parts as there are grandchildren distributees." See, also, Maclean v. Williams, 116 Ga. 257, 59 L. R. A. 125, 128, 42 S. E. 485. Where a testator directed that the proceeds of certain real estate should "be equally divided as follows, to wit, one share to Melinda Eaton, one share to Amanda Wagner, Anna Wagner, and Clara Wagner, and one share to the sole separate use of Margaret and the language will permit, and favors equities rather than technicalities." Accordingly where the issue of a devisee are substituted in the stead of the latter in case of his death, the issue take per stirpes. In those states in which this rule prevails, it is often applied notwithstanding a direction that the property be divided equally among the devisees. Thus, under a devise to the testatrix's children by name "in equal proportions," and in the event of either dying before the testatrix, then the estate to be "divided among the survivors, or their legal representatives, share and share alike," the two children of one of the daughters who died were deemed entitled only to their mother's share. So, also, in a case in Pennsylvania, where a testator, after the gift of a life estate to his brother, directed that the real estate "be divided among my legal heirs, share and share alike," it was decided that his heirs would take per stirpes and not per capita.10 In New Jersey, where there is a gift over to the heirs at law of the first taker, the heirs will share in the realty per stirpes,11 and in personalty per capita.12 § 873. Gifts to a Class Defined. A testamentary gift to a class may be described as a gift of a prescribed amount to beneficiaries designated by 7 Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537, citing Johnson v. Ballou, 28 Mich. 379, 392; In re Letchworth's Appeal, 30 Pa. St. 175. 8 In re Orton's Trust, L. R. 3 Eq. 375; Bryden v. Willett, L. R. 7 Eq. 472; Ross v. Ross, 20 Beav. 645; Robinson v. Sykes, 23 Beav. 40; Ballentine v. De Camp, 39 N. J. Eq. 87, 89. 9 Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537. 10 In re Alston's Appeal, (Pa.) 11 Atl. 366. To the same effect, see In re Baskin's Appeal, 3 Pa. St. 304, 45 Am. Dec. 641; In re Wood's Appeal, 18 Pa. St. 478. 11 Hayes v. King, 37 N. J. Eq. 1. 12 Wagner v. Sharp, 33 N. J Eq. 520; Hayes v. King, 37 N. J. Eq. 1. a description which classifies them, uncertain in number at the time the will is executed, but fixed and determined by a future event at which time those constituting the class share equally in the gift, the amount to be received by each being dependent upon the number.13 A gift to a class is distinguished from a gift to an individual, in this: while the death of an individual beneficiary prior to that of the testator or the happening of a specified contingency will cause a legacy or devise in his favor to lapse, a gift to a class does not fail if, at the time title is to vest, there is any member of the class surviving to take it. The interest of the persons constituting the class is joint, and upon the death of one before title vests his share goes to the survivors.14 Where there is a testamentary gift to a class the general rule is that there is no lapse by reason of the incapacity of any member to take, as by having been a witness to the will,15 or because 13 Barber v. Barber, 3 Myl. & C. 688, 697; In re Murphy's Estate, 157 Cal. 63, 137 Am. St. Rep. 110, 106 Pac. 230; Clark v. Morehous, 74 N. J. Eq. 658, 70 Atl. 307; In re Barret's Estate, 63 Misc. Rep. 484, 116 N. Y. Supp. 756; In re Farmers' Loan & Trust Co., 68 Misc. Rep. 279, 125 N. Y. Supp. 78; Matter of Russell, 168 N. Y. 169, 61 N. E. 166; In re King, 200 N. Y. 189, 21 Ann. Cas. 412, 34 L. R. A. (N. S.) 945, 93 N. E. 484; Kent v. Kent, 106 Va. 199, 55 S. E. 564. 14 Page V. Page, 2 P. Wms. 489; Waterman v. Canal-Louisiana Bank & Tr. Co., 186 Fed. 71, 108 C. C. A. 183; Bill v. Payne, 62 Conn. 140, 25 Atl. 354; Doe v. Roe, 4 Houst. (Del.) 20, 15 Am. Rep. 701; Davis II Com. on Wills-27 v. Sanders, 123 Ga. 177, 51 S. E. 298; Gray v. Bailey, 42 Ind. 349; Anderson v. Parsons, 4 Greenl. (4 Me.) 486; Storrs v. Burgess, 101 Me. 26, 62 Atl. 730; Howard v. Trustees, 88 Md. 292, 41 Atl. 156; Meserve v. Haak, 191 Mass. 220, 77 N. E. 377; Smith v. Haynes, 202 Mass. 531, 89 N. E. 158; Jamison v. Hay, 46 Mo. 546; Hall v. Smith, 61 N. H. 144; In re King's Estate, 135 App. Div. 781, 119 N. Y. Supp. 869; Matter of King, 200 N. Y. 189, 21 Ann. Cas. 412, 34 L. R. A. (N. S.) 945, 93 N. E. 484; Saunders v. Saunders' Admrs., 109 Va. 191, 63 S. E. 410. 15 Fell v. Biddolph, L. R. 10 Com. Pl. 709; Shaw v. McMahon, 4 Dru. & War. 431; Clark v. Phillips, of his death during the lifetime of the testator or before the time of distribution or payment.16 The interest of such dead or excluded member passes to the survivors. This right of survivorship prevails even though the gift to one of the members of the class be thereafter revoked by the testator, the benefit revoked going to the remaining members of the class.17 Where the gift is not to a class, but to a number of persons designated by name, if any one of them dies before the death of the testator, or before the title to his portion of the estate has vested in him, the legacy or devise to that person will lapse, and can not be claimed by the surviving legatees or devisees.18 § 874. Effect of Statutes to Prevent Lapse. In many jurisdictions statutes have been passed to the effect that if a beneficiary under a will dies before the testator, the gift in his favor shall not lapse, but shall 17 Jur. 886. See, also, In re Coleman and Jarrom, 4 Ch. Div. 165; Anderson v. Parsons, 4 Greenl. (4 Me.) 486. 16 Viner v. Francis, 2 Bro. C. C. 658; Leigh v. Leigh, 17 Beav. 605; Dimond v. Bostock, L. R. 10 Ch. App. Div. 358; Fell v. Biddolph, L. R. 10 Com. Pl. 709; Shuttleworth v. Greaves, 4 Myl. & C. 35; Stewart v. Sheffield, 13 East 526; Yeates v. Gill, 9 B. Mon. (48 Ky.) 203, 206; Young v. Robinson, 11 Gill & J. (Md.) 328; Schaffer v. Kettell, 14 Allen (96 Mass.) 528; Holbrook v. Harrington, 16 Gray (82 Mass.) 102; Hooper v. Hooper, 9 Cush. (63 Mass.) 122, 130; Dow v. Doyle, 103 Mass. 489. 17 Saunders v. Saunders' Admrs., 109 Va. 191, 63 S. E. 410. 18 Barber v. Barber, 3 Myl. & C. 688; Claflin v. Tilton, 141 Mass. 343, 5 N. E. 649; Dildine v. Dildine, 32 N. J. Eq. 78; Twitty v. Martin, 90 N. C. 643. See, however, Crecelius v. Horst, 78 Mo. 566; s. c., 9 Mo. App. 51. In the absence of provisions in the will to the contrary, a legacy to an individual does not lapse by the death of the legatee after that of the testator, although prior to the probate of the will.-Jersey v. Jersey, 146 Mich. 660, 110 N. W. 54; Tillson v. Holloway, 90 Neb. 481, Ann. Cas. 1913B, 78, 134 N. W. 232. |