
    Huston v. Crook.
    The heirs apparent of a testator consisted of several children and three grandchildren, by a deceased daughter. He gave to each by name a specific legacy, and by a residuary clause directed that the proceeds of certain personal property should be “ divided equally share and share alike between all my aforesaid heirs.” Held: That each of the grandchildren took an equal share with the children of the testator.
    Error to the District Court of Montgomery county.
    Charles Crook and "Walter Crook, executors of the will of Thomas Crook, deceased, filed a petition to. obtain a construction of the 14th and 15th items of the will of their testator and to be instructed as to what distribution of the personal estate should be made under said clauses.
    They read as follows:
    “ Fourteenth. It is further my will, that after my decease all my personal property not hereinbefore mentioned, shall be sold, and tbe proceeds thereof divided equally, share and' share alike, between all of my aforesaid, heirs.
    “ Fifteenth. It is further my will, that after the decease of my wife, Anna Crook, aforesaid, all the personal property, herein set apart for her use, and all the property that she, the said Anna, may have acquired by and from the use of the farm aforesaid, shall be sold, and the proceeds of said sale divided equally, share and share alike, between all my heirs aforesaid, or their legal representatives.”
    This will was dated July 6, 1866. At that time the testator had five sons and two daughters, whom he designates as such in certain specific legacies he gives them. He also had three grandchildren, the heirs of a deceased daughter, to whom he also gave specific legacies, though he does not describe them as grandchildren. He also gave his wife a life estate in the homestead farm and the personal property thereon, but as she died before her husband, the residue disposed of by the loth item of the will passed into the executor’s hands, to be distributed as the other undevised personal property, under the 14th item aforesaid.
    Oliver Crook, one of the sons, to whom a specific legacy was given, died before the testator, and by a codicil his widow and children were to have specific legacies in money, as their share, and no more. The court finds that the effect of this codicil was to make a sjoecial provision for the widow and heirs of Oliver, and to exclude them from the specific legacy to him and also to exclude them from being heirs under items 14th and 15th. A further statement of the facts is unnecessary, as the only questions saved for report are: Whether the three grandchildren named in the will, and who are plaintiffs in error here, receive any part of said personal estate devised by items 14 and 15 of said will, and, if so, in what proportion ? The common pleas held that they did, and that they took in equal shares with the children of -the testator. The district court also held that they did, but that they took per stirpes the share of their mother.
    To reverse this, is the object of this proceeding in error.
    
      
      D. Thew Wright ■ and W O. Howard, for plaintiffs in error.
    
      Warren Hunger, for defendants in error.
   Johnson, J.

By the 14th and 15th items of his will, the testator directs that the proceeds of his personal estate be divided, “ equally, share and share alike, between all my aforesaid heirs.” At the time these words' were used and when the will took effect, he had children, and three grandchildren, the heirs of a deceased daughter. In the preceding clauses of the will, these children and grandchildren were each named, and he gave to each a specific legacy.

None of these were heirs in the strict legal sense, as he was then living, but each was an heir apparent, and each would have been an heir, had he died intestate. Hence the phrase, “all my aforesaid heirs,” was used to expressly include all such as were in fact heirs apparent. These residuary clauses of the will, did not direct a division among “ all his children,” or “ all his sons and daughters ” but “ between all his aforesaid heirs.” There is nothing found elsewhere in the provisions of this will, to warrant us in limiting this comprehensive expression to part only of' his heirs. To hold, that this phrase includes some of the heirs and excludes others, would do violence to the well-settled rule of construction, that the intention of the testator must be discovered from the words used, in connection with the other provisions of the will. The explicit direction that this division should be made “ equally, share and share alike,” entitles these grandchildren to talceper capita, and not per stirpes. Had this direction as to equality been omitted, a different result might have been reached in accordance with the judgment of the district court, and in harmony with numerous well considered cases, but the testator has left nothing for construction on this point. Each is to have an equal share. Dagget v. Slack, 8 Met. 450; Downing v. Smith, 3 Beav. 541; Lord v. Moore, 20 Conn. 122; Tuttle v. Pints, 68 N. C. 543; Vannorshall v. Van Deventer, 51 Barb. 138; Harris v. Philpot, 5 Ired. Eq. 324; Nutter v. Vickery, 64 Maine, 490; Lemacks v. Glover, 1 Rich. Eq. 141; Witmer v. Ebersole, 5 Pa. St. 458; Campbell v. Wiggins, Rice Eq. (S. C.) 10; Ort’s Appeal, 25 Pa. St. 267.

Judgment accordingly.  