
    LEE a. LEE.
    
      Supreme Court, First District; General Term,
    
      Feb., 1863.
    Construction oe Will.—Distribution pee Stirpes and pee Capita.—Costs in Surrogates’ Courts.—Allowance of Counsel-fees.
    Under a bequest to A., and the children of B., in equal proportions, share and share alike, the legatees are entitled to take per capita.
    
    The surrogate has no power to award counsel-fees to be paid out of the estate to both the contesting parties.
    Costs in Surrogates’ Courts, awarded to the party entitled, must be taxed according to the Common Pleas rates of 1837.
    Appeal from a final accounting before the surrogate of New York.
    The petition of appeal was filed by Francis Lee, executor, &c., of Hugh Lee; the respondents were William and Catharine Lee, Terence Keany, and four brothers, and a sister of Keany. The will of the deceased gave the executor power of sale of a house and lot in Elm-street, and other property, and directed that out of the proceeds of sale, $2,000 should be paid to the widow of the testator; “-and the residue of said proceeds, after payment of my said debts, funeral expenses, and the allowance to my said wife as hereinafter set forth, to be divided between my brother, William Lee, and the children of my deceased sister, Ellen Keany, and the daughter of my brother, John Lee, in equal proportions, share and share alike.”
    On the petition of Terence Keany, one of the children of Ellen Keany, the final accounting was ordered. On the hearing,' the executor claimed that the share of the residuary legatees must be distributed per simpes, and not per capita. The surrogate settled the account of the executor, and adjudged that the residuary legatees were entitled to their shares per capita. The surrogate awarded to the attorney for the petitioner $75 costs, and to the attorney for the executor $25, out of the estate, and directed the distribution of the balance in hand to the residuary legatees, $177.05 to each. The executor appealed.
    
      Felix Hart, for the appellant.
    I. The residuary estate of the testator should be divided into three equal parts; one to the brother William, one to the children of Ellen Keany, and the other to the daughter of John Lee.
    II. The surrogate’s return shows no proof that the children of Ellen Keany were living, or whether she ever had any children or not.
    III. The surrogate erred in allowing counsel-fees to both counsel in specific sums.
    
      Alexander W. Bradford, for the respondents.
    The bequest, in this case, specifies the mode in which the legatees are to take—i. e., as tenants in common, “ share and share alike.” They are to have several or separate interests or shares, and their shares are to be “ alike”—each one the same as the other. As if this were not a sufficient expression, the words “in equal proportions” are added. This signification of the mode of division is not suffixed to the bequest to the children of the sister, so as to qualify that legacy alone, but it comes in at the conclusion of the entire bequest, and qualifies the whole. The authorities are conclusively in favor of the construction adopted by the decree. . (Williams on Ex'rs, 1301, note C., and cases cited; Crossly a. Clare, Ambl., 397; 1 Rop., 158; 2 Jar., 32, 34, 111, 112, and note, 160-162.)
   Ingraham, J.

The testator directed the residue of his estate to be divided between his brother William and the children of his deceased sister Ellen, and the daughter of his brother John, in equal proportions, “ share and share alike.” The surrogate decreed a distribution among the legatees per capita, giving each of the nephews and nieces an equal share with the brother.

The rule as applied by the surrogate was, I think, correct. Had the testator said, I give to my brother, and to the children of his brother and sister, by naming each of them as a legatee, and added, in equal proportions, “ share and share alike,” there would be no doubt of the right of each of the children to an equal share. The mere grouping the children of Ellen under that title, instead of naming them individually, does not alter the right of each. It does not appear that the testator intended to divide his estate into classes, from which the intent to adopt a different rule might be inferred. (Aubrey a. Newman, 17 Eng. L. & E., 125.)

The objection that there was no proof before the surrogate that the children of Ellen were living, is not well taken. They were parties to the proceeding before the surrogate, and are parties to this appeal. Ho objection of that kind appears to have been made below. We may therefore conclude that all parties assented before the surrogate to the' fact of their being alive.

The surrogate allowed to the counsel of the parties counsel-fees, to be paid out of the estate. 3 Rev. Stat., 5 ed., 376, § 25, says that in all cases of contest before a Surrogate’s Court, such court may award costs to the party entitled thereto; and section 23 says that such costs shall be taxed at Common Pleas rates, that is, as they existed in 1837.

Before this statute the surrogate had no power to award costs, and as these provisions confine him to costs to the successful party, I see no authority to award counsel-fees to be paid out of the estate to both of the contesting parties.

The portion of the decree directing the payment of the counsel-fees should be reversed; the residue affirmed.

Sutherland, P. J., and Clerke, J., concurred.  