Osburn's Appeal

Chief Justice Mercur

delivered the opinion of the court, January 7th 1884.

This contention arises as to the manner in which the residuary estate of Griswold E. Warner, deceased, shall be distributed. That is, whether it shall be'made among those entitled to share therein, according to the per capita or the per stirpes rule.

At the time of the death of the testator he left one daughter, Mrs. Henrietta Osburn, who then had seven children (she has given birth to one since), and Harry G. McCartney, the son of a deceased daughter. All the grandchildren were under the age of twenty-one years.

. The residuary estate is disposed of under the third paragraph of the will, but the division thereof was not intended to be made until some years after the death of the testator. In the next paragraph he declares : “ I would rather prefer not to have a division made of my estate until the youngest child of the said Henrietta arrives at the age of twenty-one years.” The third paragraph authorizes his executors, if they think it advisable, to sell his real estate, and the money received therefrom, and from all other sources, he says, “ I wish put at interest until there is a final division made of my estate, which I wish to be equally divided between the heirs of the said Henrietta that may be living at the time of said division, and the said Harry G. McCartney, each to share and share alike.”

It will be observed, standing by itself alone, this clause makes no reference to the relationship which any of the devisees bear to the testator. Referring to the first paragraph we see he therein devised to his daughter, Henrietta W. Osburn, the house she then occupied, together with one and one-half acres of ground attached thereto; and also all the furniture, bedding, library, etc., in the house which the testator then *642 occupied or might occupy at the time of his decease. .lathe second paragraph he gave to “ Harry Gr. McCartney, minor and only heir of my late daughter, Jennie W. McCartney,..... deceased, in addition to such other bequests hereinafter-made, .thirty thousand dollars, which my executors are requested to pay over to him,-the said Harry, when he arrives at the age of twenty-one years, together with interest on the same,” to be paid yearly, or so much thereof as may be required for his support and education, and the residue thereof to be put at interest for his benefit.

Thus it appears the testator makes one general division in the objects of his bounty. To his only surviving daughter he gives certain property specified. To the only heir of his deceased daughter a specific sum of money. This heir is mentioned by name. In the specific devise to Henrietta no reference is made to her heirs or to her children. The foundation of the per capita rule of distribution rests in a large measure on the presumption, that when the beneficiaries are in equal degrees of relationship to the testator his affection for each is equal, and therefore he will desire to benefit each equally. In these two clauses the testator wholly ignores tlie children of Henrietta as effectually as if they had not existed. So far, all' presumption of affection towards her children or a desire to make them his beneficiaries, is clearly rebutted.

It is contended by the appellants that the general rule is, who» a devise or bequest is made to a person described as standing in a certain relation to the testator, and the children of another person standing in the same relation, that they all take per c.apita.

The rule is so declared in 2 Jar. on Wills 756; but on the next page it is said “this mode of construction will yield to a very faint glimpse of a different intention in the context.” Conceding the correctness of this general rule which may so easily be set aside, let ns return to the language of the third paragraph. There is no direction therein that the estate be divided between the children of Henrietta; but between her “heirs ” that may be living at the time of said division. It is true the fourth paragraph does indicate, in speaking of' the time of division, that children and heirs of Henrietta^ are for that purpose, referred toas the same persons; yet in' the devising clause of the previous paragraph the word “ heirs ” in its most general sense is used. No language therein contained indicates that it means children or issue only of Henrietta. It-is broad enough to apply to all of her heirs who may be living when the division shall be made.

Still further, conceding that the testator may have meant children of Henrietta'; yet he refers to them as a class only. No *643 names nor sex are mentioned. They are her heirs or children as a class, all representing her, and deriving their share as her heirs, and presumably no greater share than she would otherwise have taken. Moreover, this devise or bequest is to Harry G. McCartney by name, and not merely as his grandson. The gift to him is absolute. It is not contingent that he be living wheu the division shall be made. It vested in him. at once. The possession thereof only was postponed. To adopt the per capita rule contended for, would strike down the absolute devise of one-half the estate to Harry, and cause his share to increase or diminish as the number of the children of Henrietta might increase by birth or decrease by death. Such a result as this was clearly not intended by the testator, and finds no warrant in any of the language used. Conceding, then, the correctness of the rule urged by the appellants, that language somewhat similar has often been held to presumptively distribute the estate per capita; yet a careful consideration of these words, and of the manifest intent and spirit of the whole will, convinces us that such was not the intention of the testator. There is much more than “a very faint glimpse of a different intention.” The evidence that a per stirpes distribution was intended clearly preponderates.

We do not think the conclusion at which we have arrived is weakened by the expression “each to share and share alike.” There was to be but one division. It was to divide the fund between the heirs of Henrietta of the one part, and Harry of the other part. In this division each class was to share and share alike. Harry was to have one share, and all the heirs of Henrietta the other share. The division was to be “ between ” the two classes.

Admitting the general rule of law to be as stated by the appellants, and ruled by the authorities cited by them, yet they do not rule this ease. The first great rule in the interpretation of a will is to seek for the intention of the testator. When that intention can be ascertained from the will itself, and is inconsistent with the artificial rule pressed by the appellants, the testators intention must prevail. In the view we take, it is unnecessary to refer seriatim to the authorities cited by the appellants. Due effect may be given to them, and our conclusion stand.

It is rather difficult under the authorities, to indicate any fixed line between language which shall establish a peí capita distribution on one side, and a per stirpes distribution on the other. That in the present case, the whole will sufficiently shows the testator intended a per stirpes distribution we are well satisfied. This conclusion is sustained by Lachland v. Downing, 11 B. Monroe 32; Walker v. Griffin’s heirs, 11 Wheat. *644 375 ; Alder v. Beall, 11 Gill & Johnson 123: Baskin’s Appeal, 3 Barr 304; Minter’s Appeal, 4 Wright 111 ; Risk’s Appeal, 2 P. F. Smith 269; Young’s Appeal, 2 Norris 59. The application of these authorities to the facts before us is in no wise impaired by Dible’s Estate, 32 P. F. Smith 279. We see no error in the decree.

Decree affirmed and appeal dismissed at the costs of the appellants.