
    *Hoxton & als. v. Griffith & als.
    April Term, 1868,
    Richmond.
    Wills — Construction of. — Testator says: All my landed estate in Westmoreland to be equally divided between my nephew E and the children of H, namely: L, S, W, M and W. E and H were the nephew and niece of the testatrix, to whom she was equally attached. H was dead when the will was made. By another clause, she gives other property to be divided between E and the surviving children of H; and she says: Should any of the children of H die without heirs, the property left them shall be divided among the survivors. Held: E took one moiety and the children of H the other moiety of the Westmoreland land.
    In the year 1865, Sally W. Griffith, of the city of Alexandria, departed this life, having made her will, which was duly admitted to probate in the County Court of Alexandria. The will bears date on the 17th of June, 1858, and after giving certain property to the children of Eliza E. and Dr. W. W. Hoxton, including all her real estate in Alexandria, and dividing her slaves between her nephew E. Colville Griffith and the children of Eliza E. Hoxton, naming them, she says :
    1 ‘All my landed estate in the county of Westmoreland, in the State of Virginia, to be equally divided between my nephew E-Colville Griffith, and the children of Dr. W. W. Hoxton and Eliza E. Hoxton, namely: Elewellyn G. Hoxton, Sally G. Hoxton, William Hoxton, Mary S. Hoxton and Winslow S. Hoxton. Should the claim I have on the government for the property destroj^ed off Nahomey be recovered, I wish it to be equally divided between E-*Colville Griffith and the surviving children of Eliza and Dr. W. W. Hox-ton ; and if any other property to which I am justly entitled should at any time be recovered, I wish it divided in the same manner. Should any of the children of Dr. and Eliza Hoxton die without heirs, the property left them shall be divided among the survivors. If I should survive my dear E. C. Griffith, it is my will that the property left him in this will should be divided between his three children, Frederick, Eleanor and David.”
    In September, 1866, Frederick, Eleanor and David Griffith, the children of E. Col-ville Griffith, instituted a suit in equity in the Circuit Court of Alexandria against Elewellyn G. Hoxton and the other surviving children of Eliza E. Hoxton; and in their bill, after setting out the will of Miss Sally W. Griffith, and that E. Colville Griffith had died in the lifetime of the testatrix, they say that the testatrix was a maiden lady, and virtually adopted and raised her nephew E- Colville Griffith, and her niece Eliza E. Griffith, who married Dr. ffm. W. Hoxton, both of whom were long since dead; that she stood in the light of a parent to her said nephew and niece; and it is believed and charged, entertained a like affection for them both. That having in her lifetime given to E. C. Griffith real estate in the county of West-moreland, valued at $3,000, the testatrix, with a view to place her nephew and niece on a footing of equality in the disposition of her estate, by her will gave to the children of the latter her real estate in the city of Alexandria as an offset to the land given to her nephew in Westmoreland. That to carry out said principle of equalitj' the testatrix, bjr her will, devised to E. Colville Griffith and the children of Mrs. Hoxton all her landed estate in the county of West-moreland. They insist, that this land is given one moiety to E. C. Griffith, and the other moiety to the children of Mrs. Hoxton; and they ask for a construction of the will *and a partition of the'land between the parties according to their respective rights therein.
    It appears that one of the children of Mrs. Hoxton had died after the death of the testatrix; the others answered the bill. They admit that the testatrix was an unmarried lady; but deny that E. Colville Griffith was adopted by her, though in his tender jTears he resided in and formed part of her family. They say, that E. C. Griffith and Eliza E. Hoxton lived with her during their minority, and were regarded by her with like affection. And they insist, that under the will of Miss Griffith, E- Colville Griffith, if he had survived her, would have been entitled to one-sixth of the Westmoreland farm, and the five children of Dr. Hoxton named in the will to five-sixths; and the plaintiffs, under the last clause of the will, take his share, and no more.
    The cause came on to be heard upon the bill, the answers and the exhibit, when the court held that, by the will, E- Col-ville Griffith and the five children of Mrs. Hoxton each took one-sixth of the land in Westmoreland cotmty; and that E. C. Griffith, having died before the testatrix, his three children took the one-sixth which had been given to him. And commissioners were appointed to make partition of the land accordingly. From this decree the plaintiffs obtained an appeal to the District Court of Appeals at Fredericksburg, where the decree was reversed; and then the Hox-tons obtained an appeal to this court.
    G. W. Brent, for the appellants.
    F. E- Smith and Mayo, for the appellees.
    
      
      Senger v. Senger, 81 Va. 698, 706, and Walker v. Webster, 95 Va. 381, 88 S. E. Rep. 570, cited the principal case as authorizing the general rule that where a bequest is made to several persons in genera] terms, indicating that they are to take equally as tenants in common, each individual will, of course, take the same share; in other words, the legatees will take per capita.
      
    
   JOYJSTES, J.

The only question in this case relates to the construction of the following clause in the will of Sally W. Griffith: “All my landed estate in the county of Westmoreland, in the State of Virginia, to be equally divided *between my nephew E. Colville Griffith, and the children of Dr. W. W. Hoxton and Eliza E- Hoxton, namely: Elewellyn G. Hoxton, Sally G. Hoxton, William Hoxton, Mary S. Hoxton and Win-slow S. Hoxton.” Mrs. Hoxton was the sister of E. Colville Griffith, and both she and her husband were dead at the date of the will. E. Colville Griffith died after' the date of the will, and before the death of the testatrix; and by the last clause of the will, which made provision for that event, the property given to E- Colville Griffith passed to his children, Frederick, Eleanor and David, who filed the bill in this case. The bill claimed, that the land in Westmoreland was to be divided per stirpes, the plaintiffs taking one moiety, and the children of Mrs. Hoxton, who were made defendants, taking the other moiety. The' defendants contended, that the land was to be divided among the original parties per capita, the plaintiffs, among them, taking one-sixth part, and each of the five children of Mrs. Hoxton taking one-sixth part. The Circuit Court held, that the division should be made per capita, as contended by the defendants. The District Court reversed the decree of the Circuit Court, and held, that the division should be made per stirpes, as contended by the plaintiffs.

Where a bequest is made to several persons, in general terms indicating that they are to take equally as tenants in common, each individual will of course take the same share; in other words, the legatees will take per capita. The same rule applies where a bequest is to one who is living, and to the children of another who is dead, whatever may be the relations of the parties to each other, or however the statute of distributions might operate upon those relations in case of intestacy. Thus, where property is given “to my brother A, and to the children of my brother B,” A takes a share only equal to that of each of the children of B. So where the gift is to A’s and B’s ^children, or to the children of A and the children of B., the children take as individuals, per capita. The substance of this rule of construction is, that, in the absence of explanation, the children in such a case are presumed to be referred to as individuals, and not as a class, and that the relations existing between the parties, and the operation which the statute would have upon those relations in case of intestacy, are not sufficient to control this presumption. The general rule is well established, and has been fully recognized by the decisions of this court. Brewer & ux. v. Opie, 1 Call 212; Crow v. Crow, 1 Leigh 74; McMasters v. McMasters’ ex’ors, 10 Gratt. 275.

But this rule is not inflexible, and it will yield to the cardinal rule of construction which requires that effect shall be given to the intention of the testator, to be collected from the whole will. If, therefore, an intention can be collected from the will that the children of the deceased parent are to take as a class, that intention will prevail. The general rule above referred to rests, indeed, upon a very slender foundation, and Jarman says that it “will yield to a very faint glimpse of a contrary intention in the context.” 2 Jarman on Wills, Ed. 1861, 1862. “Thus,” he adds, “the mere-fact that the annual income, until the distribution of the capital, is applicable per stirpes, has been held to constitute a sufficient ground for presuming that a like principle was to govern the gift of the capital. ”

The foregoing remark of Jarman is illustrated and confirmed by cases in this country. In Hamlett v. Hamlett’s ex’or, 12 Heigh 350, the testator gave the residue of his estate to be “equally divided among James Hamlett, Mary Jeffress, Patsy Wilson, Haney Jeffress, Narcissa Jeffress, [all of whom were children of the testator,] the children of my son George Hamlett and Huey his wife, the children of my daughter Elizabeth Arnett, the children of my son Bedford Hamlet, deceased, and the children of my ^daughter Obedience. ’ ’ The court held, that the property must be divided per stirpes, each family of grandchildren taking one-ninth part. In Gilliam v. Underwood, 3 Jones Eq. R. 100, the testator gave the residue of his estate to be “equally between my daughter Huey, my son John’s children, and my son Berry Underwood.” The court held, that John’s children took as a class one-third part of the residue, because in another part of the will they had a legacy given to them as a class. The court acted on a like ground in Lockhart v. Lockhart, 3 Jones Eq. R. 205. In Alden v. Beall, 11 Gill & John. R. 123, the testator gave the residue of his estate as follows: “The residue of my estate, real and personal, to be equally divided between the children of my sister Ann Hatimer, and their heirs forever, and the children of my sister Penelope Beall, and their heirs forever. ’ ’ The court held, on the construction of this clause alone, without aid from the context, that the residue should be divided equally between the two families. In Lackland’s heirs v. Downing’s ex’or, 11 B. Mon. R. 32, the testator gave the residue of his estate in the following terms: “All the residue” “I desire may be equally divided after my death between my brother John Downing, my two sisters, Elizabeth Cannon and Nancy Gibson, and the children of sister Nelly Eackland, to them and their children forever, it being my desire that the portions allotted to my brother John and my two sisters and the children of my deceased sister shall be made as nearly equal as possible, both in kind and amount.” The court held, on the construction of this clause alone, that the residue was to be divided per stirpes; the children of Nelly Hackland taking together, as a class, one-fourth part. In Eissel’s Appeal, 27 Pennsyl. E. 55, the testatrix directed her real and personal estate to be “equally divided between the children of my brother John, deceased, the children or heirs of my sister Rosanna, ^'deceased, and the children or heirs of my sister Juliana, deceased, and my brother John, or his heirs or legal representatives.” It was held, that the children referred to took per stirpes, and not per capita.

E. Colville Griffith and Mrs. Hoxton were related to the testatrix in the same degree. They had both lived with her during their minority, and, as alleged in the bill and admitted in the answer, 1 ‘they were regarded by her with like affection.” We naturally expect, therefore, to find that, in the disposition of her property, she has sought to effect equality between these equal objects of her affection, bestowing upon the children of Mrs. Hoxton what was intended for her. And I think that the will contains satisfactory evidence that, in the clause on which this case depends, the children of Mrs. Hoxton, though enumerated as individuals, were designed to take as a class’, representing their mother.

The will provides, in the clause next to the last, that “should any of the children of Doctor and Eliza Hoxton die without heirs, the property left them shall be divided among the survivors.” The next and last clause provides, that if the testatrix shall survive E. Colville Griffith, “the property left him shall be divided between his three-children, Frederick, Eleanor and David.” These clauses indicate clearly the purpose of the testatrix to distinguish the objects of her ■ bounty into two classes — the children of her deceased niece being one class, and her nephew (or, in case of his death, his children,) being the other. Under the latter clause, on the death of E. Colville-Griffith in the lifetime of the testatrix, his children, who are substituted in his place, are not to take equally with the Hoxtons, who stand in equal degree with them, buf they are to divide among themselves the share of their father. They are treated as. a class representing their father, and taking among them what was intended for him, if he had *lived to-take it. It is reasonable to presume that she intended to treat both families, alike, and that she regarded the Hoxtons likewise as a class, taking what their mother would have taken if alive. All ambiguous expressions should be construed in conformity with this presumption.

By the former of the two clauses just-quoted, the testatrix provides, in general terms, for the death of any of the Hoxtons “without heirs. ” This provision seems to have had reference to the death of any of the members of this family in the lifetime of the testatrix, as the next provision has reference expressly to the death of R. Col-ville Griffith in her lifetime. If so, the effect of it is, that by the death of any of the Hoxtons in the lifetime of the testatrix, the share of R. Colville Griffith would not be increased; he would still take his share, whatever it was, and the surviving Hoxtons would take' what was intended for that family. If equality between her nephew, on the one hand, and the family of her niece on the other, was the purpose of the testatrix, this provision was a natural and reasonable one, and preserved this equality. If individual equality between R. Colville Griffith and the several children of Mrs. Hoxton was the object, then this provision was unreasonable and unjust. It violated the rule of equality among the individuals, in case of the death of any of the Hoxtons, by giving the share of the deceased to the surviving Hoxtons, in exclusion of R. Col-ville Griffith.

Another clause of the will provides, that if a claim of the testatrix on the government for certain property destroyed should be recovered, it should be equally divided between R. Colville Griffith and the “surviving children” of Mrs. Hoxton. In the next preceding clause, the “children” of Mrs. Hoxton are spoken of in general térms, and are enumerated by ■ name. The word “surviving” seems to have had reference to the time at which the claim should be recovered. If so, the provision is consistent with the *rule of equality, if equality between classes or families was intended. If equality among individuals was intended, this provision is capricious and unjust, because it makes the share of R. Colville Griffith depend upon the number of the Hoxtons who may be surviving when the claim is recovered.

I am of opinion to affirm the decree of the District Court.

The other judges concurred in the opinion of Joynes, J.

Decree of the District Court affirmed.  