by name, in which case the presumption is that they take as individuals, yet this presumption is not conclusive, and if the beneficiaries constitute a class and the will discloses an intent to make a gift to a class, such intention will be given effect.36 The mere fact that the persons composing the class are mentioned by name is not always sufficient to take the case out of the rules applicable to gifts to a class; and if from other provisions of the will taken in connection with the existing facts, an intention to confer a right of survivorship may be collected, that intention will prevail.37 But where the will provides that the beneficiaries shall share equally in an aggregate sum, or otherwise fixes the amount each is to receive, the language is always held to create the relationship of tenants in common, not a joint tenancy as in gifts to a class.38

§ 878. Manner of Designating Beneficiaries as a Class: Where Share of Each Is Mentioned.

In a gift to a class the beneficiaries are described generally, such as "my brothers' and sister's children, or

36 Security Trust Co. v. Lovett, 78 N. J. Eq. 445, 79 Atl. 616.

Some authorities hold that when the beneficiaries do, as a matter of fact, constitute a separate and distinct class of persons, such as the children of a certain person, grandchildren, nephews, or nieces, the rule is not to be altered by the fact that the testator enumerates them by name.-Bolles v. Smith, 39 Conn. 217; Warner's Appeal, 39 Conn. 253; Springer v. Congleton, 30 Ga. 977; Schaffer v. Kettell, 14 Allen (96 Mass.) 528; Stedman v. Priest,

1939

103 Mass. 293; Magaw v. Field, 48 N. Y. 668; Hoppock v. Tucker, 59 N. Y. 202.

37 Schaffer v. Kettell, 14 Allen (96 Mass.) 528; Stedman v. Priest, 103 Mass. 293; Hall v. Smith, 61 N. H. 144; Page v. Gilbert, 32 Hun (N. Y.) 301; Manier v. Phelps, 15 Abb. N. C. (N. Y.) 123.

38 Downing v. Marshall, 23 N. Y. 366, 373, 80 Am. Dec. 290.

39 In re Brundage's Estate, 36 Pa. Super. Ct. 211.

A gift to a number of beneficiaries not individually named, but designated by a general de

"the eight children of my niece F. F., eight shares, share and share alike."40 The presumption is that the testator intends to dispose of his entire estate, and the words "share and share alike," although they tend to show gifts to individuals which may lapse, yet alone they do not overcome the general presumption of intent to make a total disposition. The same is true where the will provides that the gift shall be divided equally among the members of the class.42

In determining whether a testamentary gift is to a class or to individuals, the manner of designating the beneficiaries and the share each is to take are of great

scription, such as to brothers and sisters, is a gift to a class.-Branton v. Buckley, 99 Miss. 116, 54 So. 850.

In Kentucky the court has gone so far as to hold that where there is a general devise to "the children" of another than the testator, such devise includes all the children of such person living at the death of the testator as well as any that may thereafter be born.Lynn v. Hall, 101 Ky. 738, 72 Am. St. Rep. 439, 43 S. W. 402; Gray's Admr. v. Pash, 24 Ky. L. Rep. 963, 66 S. W. 1026; Goodridge v. Schaefer, 24 Ky. L. Rep. 219, 68 S. W. 411; Caywood v. Jones, 32 Ky. L. Rep. 1302, 108 S. W. 888; United States Fidelity etc. Co. v. Douglas' Trustee, 134 Ky. 374, 20 Ann. Cas. 993, 120 S. W. 328.

In Barker v. Barker, 143 Ky. 66, 135 S. W. 396, it seems, however, that the rule laid down in the foregoing cases may be limited to

devises to the children of a near relative, and not necessarily applicable where the devise was to the children of a stranger in blood to the testator.

40 Smith v. Haynes, 202 Mass. 531, 89 N. E. 158.

41 Smith v. Haynes, 202 Mass. 531, 89 N. E. 158; In re King's Estate, 135 App. Div. 781, 119 N. Y. Supp. 869.

As to the proportions in which beneficiaries take where the testator directs division "equally" or "share and share alike," see §§ 871, 872.

The words "in equal shares and proportions" generally mean that the gift is to the beneficiaries as tenants in common, but this inference is not conclusive.-Meserve v. Hook, 191 Mass. 220, 77 N. E. 377.

42 Bartlett v. Sears, 81 Conn. 34, 70 Atl. 33. *

importance. If the gift is to the beneficiaries by name and the share each is to receive is mentioned, the gift is to individuals as tenants in common, and not to a class.43

§ 879. Mistake in Designating Number in Class.

A testator may make a testamentary gift to the members of a class whom he also designates by number. Where the number is, in fact, greater than that mentioned by the testator, if the general intent of the testator as evidenced by the will is that the entire class shall be benefited, the statement of the number will be treated as a mistake and the testator's intent will be enforced. Where it appears that only a particular number of the members of the class are to take under the gift and it can not be ascertained who are intended to be benefited, the gift must be held void for uncertainty." If from the will it

43 Rockwell V. Bradshaw, 67 Conn. 8, 34 Atl. 758; Hornberger v. Miller, 28 App. Div. 199, 50 N. Y. Supp. 1079; Savage v. Burnham, 17 N. Y. 561.

In Senger v. Senger's Ex'r, 81 Va. 687, 698, Richardson, J., in discussing the meaning of the word "between" in the following clause of a will, namely: "It is my will and desire that all of my estate be equally divided between the children of my deceased son, J. S., and the children of my daughter, E. S., taking into consideration what I have already given them," said: "It is well known that the same words are often capable of different meanings according to their collocation and connections. And the same prepositions are, for the

most part, differently used and placed and do then express different ideas. But when they follow the verb 'divide,' their general signification is very similar, and in popular use are considered synonymous, though 'among' denotes a collection and is never followed by two of any sort, whilst 'between' may be followed by any plural number, and seems to denote rather the individuals of the class than the class itself generally."-See, also, Rogers v. Smith, 145 Ga. 234, 88 S. E. 964.

44 Wrightson v. Calvert, 1 Johns. & H. 250; In re Sharp, (1908) 2 Ch. 190; Kalbfleisch v. Kalbfleisch, 67 N. Y. 354.

"The proposition must be limited to this-that where the court, as a

appears that the testator intended to benefit the whole of a class, a mistake in the number will not be allowed to defeat his intention.45 If the gift be a fixed sum to each of the members of a class, then each will receive such benefit although the number be greater than that mentioned by the testator.*

46

Where an aggregate sum is to be divided among the members of a class, the amount to be received by each will depend upon the actual number, each taking his proportion of the total amount. Thus where three take instead of two as mentioned in the will, the division is in thirds.47

§ 880. As of What Date Members of a Class Are Determined. Since a will speaks as of the date of the testator's death, where there is a testamentary gift to a class the members of the class are prima facie to be determined upon the death of the testator.48 This is not an absolute

matter of construction, arrives at the conclusion that a particular class of persons is to be benefited according to the intention of the testator, if there has been an inaccurate enumeration of the persons composing that class, the court will reject the enumeration." -Lord Russell in Re Stephenson, (1897) 1 Ch. 75, 81.

45 In re Stephenson, (1897) 1 Ch. 75, 83.

46 Garvey v. Hibbert, 19 Ves. Jun. 125.

47 Deech v. Thorington, 2 Ves. Sen. 560, approved in Re Sharp, (1908) 2 Ch. 190.

48 Hodges v. Isaac, Ambl. 348; Horsely v. Chaloner, 2 Ves. Sen.

83; Heathe v. Heathe, 2 Atk. 121; Northey v. Burbage, Prec. Ch. 470; Ruggles v. Randall, 70 Conn. 44, 38 Atl. 885; Downing v. Nicholson, 115 Iowa 493, 91 Am. St. Rep. 175, 88 N. W. 1064; Richardson v. Willis, 163 Mass. 130, 39 N. E. 1015; Buzby v. Roberts, 53 N. J. Eq. 566, 32 Atl. 9.

Only grandchildren in being at the time of the testator's death take under a devise of several parcels of land to "my dear grandchildren, to them, and their heirs forever, to be equally divided among them."-Loockerman v. McBlair, 6 Gill. (Md.) 177, 46 Am. Dec. 664.

Members of the class born

rule but yields to the intention of the testator; and if the will indicates a contrary intent such intent will be adopted and enforced.1 49 The character of the gift, whether immediate or in the future, is to be considered. Thus an immediate bequest of real or personal estate to a class designated as the "children," "grandchildren," "issue," "brothers," "nephews," or "cousins," etc., either of the testator himself, or of some other person, will, as a general rule, in the absence of any indication of a contrary intention, vest only in those of the class who are in existence at the testator's death. Under this rule children born or begotten prior to, and in esse at the time of, the death of the testator, will be entitled to share in the distribution, but those living at the time of the execution of the will who die before the testator, are excluded.50

within the period of gestation after the testator's death are included.-Williams v. Duncan, 92 Ky. 125, 17 S. W. 330.

As to children en ventre sa mere, see § 842.

A testator in 1849 devised real estate to his daughter "A. and her children." A. then had a child, who died in December, 1850. She had another, born November 20, 1851, which died when three days cld. Subsequently she had other children. The testator started on a journey in January, 1850. In November, 1851, on information of his death, the will was admitted to probate, but the date of his death was never ascertained. Held, that it might be inferred that he died while the second child was en ventre sa mere, and that A. and

that child took as tenants in common, to the exclusion of the subsequently born children, and that on the death of the second child its share passed to the parents.Biggs v. McCarty, 86 Ind. 352, 44 Am. Rep. 320.

49 In re Swenson's Estate, 55 Minn. 300, 56 N. W. 1115; Bailey v. Brown, 19 R. I. 669, 36 Atl. 581.

50 Viner v. Francis, 2 Cox 190; Mann v. Thompson, Kay 638; Lee v. Lee, 1 Drew. & S. 85; In re Coleman & Jarrom, 4 Ch. Div. 165; Devisme v. Mello, 1 Bro. C. C. 537; Smith v. Ashurst, 34 Ala. 208, 210; Adams v. Spalding, 12 Conn. 350; Doe ex dem. Ingram v. Roe, 1 Houst. (Del.) 276, 286; Walker v. Williamson, 25 Ga. 549, 554; Gillespie v. Schuman, 62 Ga. 252; Downing v. Nicholson, 115 Iowa 493, 91