
    EVA L. HAAS et al. vs. JENNIE B. ATKINSON et al.
    Wires; Eegacies; Testamentary Intention.
    A bequest having been made of a sum of money in bank to be equally divided between A., B. and C. and the children of D., deceased; held, considering the circumstances of the case, that the children of D. took one-fourth per stirpes.
    
    In Equity.
    No. 11,732.
    Decided May 16, 1892.
    The Chief Justice and Justices JAmes and Bradrey sitting.
    Appear by defendants from a decree of the Special Term construing a will.
    
      Decree reversed.
    
    The pacts are stated in the opinion.
    Mr. Rodorphe CraughTon for defendants (appellants):
    Do the complainants take per capita? There is nothing to sustain such a contention except the English rule, which whenever cited is coupled with the explanation; that such rule will yield “to a very faint glimpse of a different intention.” 2d Jarman on Wills, 1st Am. Ed. 111.
    American courts have ignored the English rule. The Supreme Court of Connecticut, rejecting the said rule, say “ the English rule, that referring to children is the same as if they were individually named in the will, in view of the exceptions which so easily set it aside, is of little practical importance, and it does not seem to have been recognised in this State, although cases have been discussed and decided where its application would have been controlling.” Raymond vs. Hillhouse, 45 Conn. 474.
    And the court, continuing, say, ‘ ‘ In Tallcott vs. Tallcott, 39 Conn. 186, the devise was to the children of one Mrs. Burke, deceased; and though the names of each of the children were given, yet it was held that they took as a class, and not per capita.” Id. 475.
    
      The Supreme Court of New York, disregarding said rule, say, “the rule referred to has, in modern times, been applied with reluctance by some courts, because it had become a rule of property, and by others out of deference to its supposed authority; but, in many, if not in all cases, with open protest, while by others it has been wholly rejected.” Ferrer vs. Pyne 81 N.Y.284 (citing Mintern’s Appeal 40 Penn. 111,) and Raymond vs. Hillhouse, 45 Conn. 474.
    It is reasonable to assume that in such cases, affection induces the bequest, and, also, that other things being equal, the ties of affection are stronger in proportion to the degree of kinship.
    Following this reasoning, it has been well observed that “the taking per stirpes always presupposes an inequality of relationship.” . Roper on Regacies 1st vol. (2d Am. Ed.,) 160.
    In the case at bar, it is admitted, by stipulation of record, that the complainants are only the g rand-nephews and the grand-nieces of testatrix, while the defendants Atkinson and Jones are respectively niece and nephew of testatrix, and the defendant Thornton is the husband of a niece of testatrix.
    The principle above referred to has been adopted by the Supreme Court of New York, and, that court, in disposing of a case in which were circumstances similar to those of the case at bar, in holding that the distribution should be per stripes, say that, 1 ‘a contrary construction would be at variance with the natural disposition of mankind.” Ferrer vs. Pyne 81 N. Y. 284.
    There is a striking similarity between the case of Ferrer vs. Pyne and the case at bar.
    1st. The contest was between two classes one of which was nearer in kinship to testatrix than was the other.
    2d. One of the classes was referred to as the children of á deceased relative, which deceased relative stood in same degree of relationship to testator as did the other legatees who were designated by their names.
    
    
      Nomine mdato, the facts, phraseology and reasoning of the court, in Ferrer vs. Pyne are applicable to the case at bar.
    
      ‘We find the testatrix calling to mind her nephew (Paul Jones) and her nieces (Jennie B. Atkinson, and the wife of Thornton who was an invalid and incapable of managing her affairs) their names (as set forth in the will) their relations to others by marriage (the marriage of her niece Annie to Thornton) the death of some (the death of her niece, Ella M. Turley) and with these incidents before her, making a distribution of her estate. The living nephew and niece are named hy her (as set forth in will) while the children of the niece who is dead (the complainants in this case) are spoken of not by name-, but as the children of her late niece, Ella M. Turley; evidently given to them the place as recipients of her bounty, which Ella M. Turley, if living, would have filled.
    She designates the children of Ella M. Turley as a class, and not as individuals-, remembers them not in their own persons, but as representatives of their parent, and substitutes them in her place.
    Similarity between Connecticut case and case at bar. The Supreme Court of Connecticut in holding that the distribution should be per stirpes, laid stress upon a feature incident to the case at bar. In that case, the will having disclosed that certain of the legatees were the special objects of testatrix’ bounty, the court, in referring to the legatees thus specially favored, say “we think it improbable that he (testator) intended to make their shares as small as any one of his nineteen great-nephews and great-nieces.” Raymond vs. Hillhouse, 45 Conn. 474.
    In the case at the bar the defendant Jennie B. Atkinson, (apart from the money bequest which was in aggregate $6,000) was the object of special favor of testatrix, as is manifest from the provisions of the will.
    Passing from consideration of the special favor shown to Jennie B. Atkinson in the bequest to her of the portrait of testatrix’ father; replete as such bequest is with favor immeasurable in money value; we will consider the bequest to said legatee of the furniture and wearing apparel of testatrix; and, thereof, it may be assumed that the apparel and furniture of one who could afford to keep $6,000 idle in bank are of sufficient value to be regarded as a special favor to the legatee, and, in that regard, of the importance of the construction of the will.
    In the case of Raymond vs. Hillhouse, supra where, as in this case, it was contended that the use by testator of the words “ to be equally divided ’ ’ among the children of &c. was equivalent to naming them individually; the court in repudiating such theory, say “Neither do the words to be divided equally among them necessarily import a division of the property among individuals, for, they apply just as readily and appropriately to a division among classes.” Raymond vs. Hillhouse, supra, 473. Reason, principle and precedent indicate that the complainants take per stirpes, and not per capita.
    
    M. W. A. Johnston for complainants (appellees):
    A gift to ‘ ‘ children ” or to “ grand children ” or to any class described by its members related to the testator, is a gift to them individually. This is especially true when the technical words, “to be equally divided among them,” are employed. 45 Conn. 468.
    Regatees will take per capita and not per stirpes where it is apparent that upon comparing the various clauses of a will that such was clearly the intention of the testator. Re Verplank, 91 N. Y. 439.
    The general rule is, that where several persons are named in a legacy with the children of another, they will all take per capita an equal share, (but where they, the children, are several times mentioned as a class in other clauses of the same will and equality requires that they should be so treated in the clause in question, they will- be decreed to take per stirpes). 3 Jones Bq. 100.
    The rule of distribution as laid down in Powell on Devises Vol. 2 p. 331, says: “It is now to be observed that where a gift is made to the children of several persons whether it be to the children of A, B, or to the children of A, and the children of B, they take per capita not per stirpes.”
    
      No distinction can be taken between real and personal estate. Eewin on Trusts, 843-844.
    The words “to be equally divided,” or “in equal shares;” or words of similar import have been deemed by the courts of controlling influence or significance in determining the intent of the testator. 46 Barb., 81.
    The words “to be equally divided,” import a division per capita. 6 Ired. Eq., 437; 4 Ired., 244.
    The word ‘ ‘heirs’ ’ when used in a devise (there being no other words to control the presumption), the legal inference is that it is nomen collectivum, that it designates the persons whom the law appoints to succeed to the inheritance in cases of intestacy, and that legatees thus designated take by representation and not in their own right. Where he says, that a devise to heirs, whether to ones own, or the heirs of a third person designated not only the persons who are to take, but the manner and proportion in which they are to take.
    When there are no words to control the presumption, the law presumes the intention to be that they take as heirs would take by the rules of descent. Although a different intention may be inferred and a different rule of distribution may be applied where the word “children” is used instead of “heirs,” and in the absence of any thing to control the division, it may in such cases be per capita. In all cases, it is believed without exception, in which it is held, that .where a gift is made to one person standing in a certain relation to the testator, and to the children or heirs of another person standing in the same relation to him, the beneficiaries take per capita, it will be found that the words “to be equally divided” or “ in equal shares,” or words of similar import, have also been employed in the will, and have been deemed by the courts of controlling significance in ascertaining and determining the intent of the testator. 46 Barb., 81 and 82.
    A testator directed that his property should be divided equally “between my wife M, and my daughters I and E.”
    Held, that ‘ ‘between’ ’ meant ‘ ‘among’ ’ and that the intention was that the estate should be divided into three equal shares. Hicks’ Estate, 8 Pa. Co. Ct. Rep, 30.
    
      The mere grouping of children into a class as the children of A or B, instead of naming them individually does not alter the rights of each. 39 Barb., 172.
    The result of the authorities would seem to accord with what is correct upon principle, viz., that in a gift to relations (whether the testator has added the words, “equally to be divided” or not) the distribution among the relations within the statute must be made per capita and not per stirpes. Lewin on Trusts, 843. Everitt vs. Carman, 4 Redf. N. Y., 342; Dibles Estate, 81 Penn. St., 279; Peales’ Estate, 11 Phila. Pa., 147; Kimbro vs. Johnston, 15 Lea, Tenn., 78; McKelvy vs. McKelvy, 43 Ohio St., 213; Nichols vs. Denny 37 Miss. 59; 46 N. H., 435; 9 Paige (N. Y.) 81; 25 Barb. (N. Y.), 396; 6 Ired. (N. C.) Eq., 425. Freeman on Co-Tenancy, 105; Watkins on Descents; Ward vs. Stone, 2 Dev. Eq. 509; Fearne on Con., Rem. 79; Campbell vs. Wiggins, Rices Eq. 10; Blacklen vs. Webb, 2 P. Wms. 383; Lemacks vs. Glover, 1 Rich. Eq. 141; Witmer vs. Ebersole, 5 Penn. St., 458; 5 Barr. 458; Walker vs. Dunshee, 38 Id. 431; Clark vs. Cor-diss, 4 Allen 466-480; Richardson vs. Richardson, 14 Simons 526; 1 Perry on Trusts, 257; 2 Sugden Powers, 246, 1 McLaren, on Wills, 727; (note b.) Tiffin vs. Longman, 15 Bear. 275; 13 Id., 240; Holgen vs. Neale, L. R., 11 Eq. Cas., 48; Witley vs. Mangles, 4 Beav., 358; 10 Cl. and Fin. 215; Kelly vs. Vigas, 112 Ill. 242; Richards vs. Miller, 62 Id., 417; Aspdens Estate, 2 Wall Jr., 442.
   Mr. Justice James

delivered the opinion of the

Court:

On the —■ day of-, Ann Jones departed this life, leaving her last will in the following words: “I am of sound mind; I will to Anne B. Atkinson my clothes and what furniture I may leave; to Miss Maggie Mitchell, of Georgetown, my books, pictures and little fancy articles; my watch to Bolling Thornton; silver napkin ring and fork to little Mamie Cobb, daughter of Norvell Cobb. What money may be in Johnson’s Bank to be equally divided between Jennie B. Atkinson, Paul Jones, P. R. W. Thorntoti and the children of my late niece, Ella M. Turley; G. R. Atkinson to hold Paul Jones’ in trust for him, paying him a certain sum per month; what he thinks will do for his support. Ann Jonbs.

“I wish my large shawl and white spread given to Mrs. Mary H. Brown, of Georgetown, D. C. A. J ones .
“If my birds are living to be given to Miss Isa Mitchell.
“My father’s picture to Jennie B. Atkinson.”

The complainants, two of whom are infants, suing by their next friend, are the children of Ella M. Turley referred to in the will, and grandnieces of the testatrix. They claim that the testatrix intended that each of them should share equally with the defendants Atkinson, Jones and Thornton in the money left in the bank; in other words, that each of them should have one-eighth thereof.

The answer shows that the defendant Atkinson and the wife of defendant Thornton are nieces, and that the defendant Paul Jones is a nephew of the testatrix; and claims that it was the intent of her last will that each of them should have one-fourth of the money in question, and that the children of her other niece should stand in the place of their deceased mother, and should together take one fourth.

The question to be determined is whether, ,in the mind of this testatrix-, the children of her niece Ella were a group, succeeding to her place, or were thought of by her as individuals, in j ust the same way that she thought of her niece Atkinson and nephew Jones. And it seems that, before we decide this question, we have to consider a preliminary question, namely, whether we are bound by the authority of any judicial rule by which the intention of a testator in such provisions is to be determined.

Ever since the statute of wills was enacted the courts have said that the intention of the testator was the one subject of inquiry, and was to control, provided his intent was lawful; and then they proceeded to gather from interpretations and constructions already made in what seemed to them to be analogous cases, positive rules by which the intention of each later testator must be determined. The effect of this has been that each testator was obliged to mean what other testators had meant in what was adjudged to be a like case. To a certain extent this method was inevitable. For example, the courts must presume that a testator uses, in the sense established by common usage, the words of the language in which he expresses his intention. On the same ground it must be presumed that he uses in their technical sense phrases which have an established technical meaning. The presumption in both cases is that everybody uses language in its common sense; and it is reasonable that a rule to that effect should be stated as a judicial rule of interpretation.

But in England, and in some of the States in this country, the courts have gone quite beyond this necessary process. When they found that the testator had been held in previous cases to have intended a certain distribution of his property by a certain provision, they held that it was a rule that all testators had that intention when they employed similar language. It might be that the circumstances would suggest that the same expressions had in view a different result in a particular case, and that the courts had a shrewd perception of a different intention in a particular case, and would have been guided by that perception if there had been no rule for ascertaining the intention; but the effect has been that the testator’s intention has been determined for him according to the general rule.

We can readily understand that a judicial discussion of one will should throw light upon the construction of another, and suggest methods of inquiry and of reasoning which would be applicable in a new case; but we do not perceive that earlier interpretations can have an authority which forces upon a later testator an intention which he may not have had. Other courts have felt that the formulation of rules for ascertaining particular intentions has been carried too far, and have sought to free themselves from an obligation to follow them in disregard of what they believed to be the personal intent of a particular testator. This indisposition to measure intention by an alleged rule has been shown in reference to the very questions now before us. In Raymond vs. Hillhouse, 45 Conn., 474, the court said: “The English rule, that referring to children is the same as if they were individually named in the will, in view of the exceptions which so easily set it aside, is of little practical importance, and it does not seem to have been recognized in this State, although cases have been discussed and decided where its application would have been controlling.” In Ferrer vs. Payn, 81 N. Y., 284, the court said: “The rule referred to has, in modern times, been applied with reluctance by some courts, because it had become a rule of property, and by others out of deference to its supposed author^; but in many, if not in all cases, with open protest, while by others it has been wholly rejected.” Mintern’s Appeal, 40 Pa. St., 111, 114, was one of the cases in which the rule was wholly rejected, or rather was simply ignored without being discussed. The bequest was 1 ‘share and share alike among the children of my brother Adam and the children of my brother Martin and to my sister Barbara.” The court said: “If he meant that his nephews should each be equal to his sister’s, the word each would have made his meaning clear,.”

If the question whether the old rule is of binding authority were to be decided by weight of authority, we should not feel bound to conform to it; but apart from the weight of authority, we conceive that the intent of such a provision as this is not the proper subject of a rule of interpretation. We feel at liberty, therefore, to consider the circumstances of this bequest, as well as its language. It is manifest that family affection was the controlling impulse of this bequest, and this element is to be considered in determining what the testatrix intended to do in accordance with that motive. It is, on the one hand, consistent with that motive that the children of a niece whom the testatrix remembered with affection should be placed in their mother’s stead, and on the other, improbable that the shares of the beneficiaries should increase as their consanguinity became more remote. At the same time equal division wasqust as applicable to the objects of her care, if we suppose three of those objects to have been individuals and the fourth a group, as it would be if we suppose all the parties to have been intended individually. It may be said further that, while it is not probable that the testatrix would enlarge her gift as the kinship of the recipients receded, it is not natural, and therefore not probable, that those who remained nearest should suffer diminution of her regard by the appearance of more remote kindred. In the absence of distinct expressions to the contrary, we think that these considerations are a safer guide in determining what the testatrix meant by an equal division between her nearest kindred and the children of one who had stood in the same degree, than the English rule would be. We are of opinion that'the kindly aunt actually did mean what was most natural that she should mean, if her words are fairly consistent with such an intention. Inasmuch as it was natural that her near kindred should retain their places in her regard after their sister Ella had departed, and the language of her will is not inconsistent with an intention that they should do so, we think it was her intention that equality of division 'was attained by giving them undiminished the shares of nieces and nephew, and by giving to the children of the departed niece their mother’s share. The decree will be that the complainants are entitled to receive together one-fourth part of the money in bank, and that the defendants are entitled to receive three-fourths thereof.

The decree is reversed.  