
    Charles B. Graves, Pl’ff, v. Augusta C. Graves, Individually and as Executrix, et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    Wills—Gift to daughter and her children.
    The will of testatrix gave the residue of the estate to her adopted daughter, A, and to the child or children of A living at testatrix’ death, to be divided equally, share and share alike, between said A and her child or children. Held, that each of the children took a share of the residue equal to that of the mother.
    Submission of controversy without action.
    
      Henry W. Sprague, for pl’ff; Frank M. Loomis, for def’t.
   Dwight, J.

The object of this submission is to obtain a judicial construction of the ninth or residuary clause of the will of Mrs. Caroline Moore, late of Buffalo, deceased. The defendant, Mrs. Graves, was the adopted daughter of the testatrix, and the plaintiff is the son and one of seven children of Mrs. Graves who-were living at the time of the death of Mrs. Moore.

The clause in question reads as follows: “I do give, devise and bequeath all the rest, residue and remainder of my property and estate, both real, personal and mixed, of every name and nature and wherever situate, to my adopted daughter Augusta C. Graves, wife of John C. Graves, of Buffalo, R Y., and to the child or children of said Augusta C. Graves, who shall be living-at the time of my death, to be divided equally, share and share alike, between the said Augusta C. Graves and the said child or children.”

The question in controversy is whether the division shall be by moieties between the mother, Mrs. Graves, on the one hand, and the children as a class on the other hand, or in equal parts between or among the mother and the several children as individuals. We think it reasonably clear that the provision must receive the latter construction.

The question is not between a distribution per capita and a distribution per stirpes, because here is no stirpes or stock represented. by the children and whose share it might be supposed to have been the intention of the testatrix to give to them. In all the cases cited by the defendant the devise or bequest was to one or more persons named, and to the children, not named, of one or more other persons ; and in most of those cases the persons named and deceased parents of the classes of children, respectively, stood in the same relation to the testator. In such cases the distinction of per capita and per stirpes may obtain, and . the intention be inferredj in the absence of other indications, to give to each class of children the share which might have been that of the parent, if such parent were living; the principle followed being, in case of doubt, to favor a construction which would distribute the gift as nearly as possible in accordance with the statute of distribution. See Ferrer v. Pyne, 81 N. Y., 281; Vincent v. Newhouse, 83 id., 505; Clark v. Lynch, 46 Barb., 68.

On the other hand, in all the cases to which we are referred or of which we have any knowledge, in which the gift has been to one person and the children of the same person to be divided equally between them, a contrary rule has been applied, and all the beneficiaries named individually, or designated in a class as the children of one named, have taken in equal shares, per capita. In cases of this class, conformity to the statute of distribution is not indicated, because the children mentioned are not heirs or next of kin of the testatrix, their parent who is in the line of descent being living, and they in case of intestacy would have taken nothing under the statute.

Thus, in Seabury v. Brewer, 53 Barb., 662, the provision of the will was for the appropriation of the estate equally to the benefit ■of the testator’s wife and two children named; the court held it “ very clear that the parties named take per capita and not per ■stirpes, and therefore each is entitled to one-third, etc."

In Armstrong v. Moran, 1 Brad., 314, the gift of a residue was to the testator’s brother James and his children, and the child of his sister Catherine “ to be equally divided between them and their heirs and assigns forever.’’ It was held that James and each of his children took equal shares.

In Morgan v. Pettit, 3 Dem., 61, the testator provided that on the arrival of his youngest chlid at lawful age, his estate “ be divided equally between my said wife and children.” The same effect was given to the provision as in the last case.

In Lord v. Moore, 20 Conn., 122, and in the late case, in South Carolina, of Durant v. Nash, reported in 9 So. East. Rep., at page 19, the property was to be divided equally between wife and children, and in both cases it was held that the wife took only an equal share with each of the children.

Criticism is made upon the use of the word “ between ” and not “ among," in the direction for division in the case at bar. It is true that in very strict use of language the preposition between ” is more properly employed where the reference is to two persons or things only; and “ among ” where the reference is to more than two; but the distinction is too nice to furnish a rule of construction, and it is known to all that “ between ” is very commonly used as synonymous with “among” in such connection.

It may also be noted that in this case the gift was to Mrs. Graves and her child or children who should be living, etc.; so that in one of the alternatives supposed there would be but two to share in the division; in that case the use of the word “among” would be inappropriate. And in four of the five cases last above cited, the number of beneficiaries designated being more than two, the preposition employed was “ between ” and not “ among.”

Moreover in the provision here in question other language was used which has been held significant of an intent to divide in equal shares among all the beneficiaries indicated. The language is “ to be divided equally, share and share alike, ” between, etc. In Murphy v. Harvey, 4 Edwards Chan., 131, it was held that the words “ to be equally divided,” when applied to a gift to persons of several degrees of consanguinity to the testator, supersede the manner of distribution by the statute.” In Lee v. Lee, 39 Barb., 172, when the gift of a residue was to a brother, the children of a deceased sister and the daughter of another brother, “ in equal proportions, share and share alike,” it was held that each of the nephews and nieces took an equal share with the brother named as a beneficiary; and in Stevenson v. Lesley, 70 N. Y., 517, it was held that the division should beper capita and not per stirpes because of the use of the words “ to be equally divided ” and “ share and share alike.” See also In re Verplanck, 91 N. Y., 439, 444.

We think the authorities cited amply sustain the contention of the plaintiff to the effect that, by the terms of the provision in question in the will of Mrs. Moore, each of the children of Mrs. Graves takes a share of the residue equal to that of their mother.

We have considered the other and independent provisions of the will, and the facts extrinsic to the instrument, which are presented by the submission, and find in them nothing which impugns the construction which we are compelled to give to the particular provision.

Judgment accordingly should be ordered for the plaintiff,

Judgment ordered that plaintiff takes an equal undivided eighth part- of the property embraced in the ninth or residuary clause of the will.

Barker, P. J., and Macomber, J., concur.  