
    WILL CONSTRUED TO REQUIRE PER. CAPITA DISTRIBUTION.
    Common Pleas Court of Warren County.
    Jameson, Executor, v. Glenny et al.
    Decided, June, 1910.
    
      Wills — Words and Phrases — Construction of Words “Share and Share Alike Among My Legal Heirs According to Law.”
    
    A will directing that “all the residue of my estate shall be equally divided share and share alike among my legal heirs according to law” requires a per capita distribution among all testator’s heirs, regardless of the degree of kinship.
    
      Stanley & Stanley, for plaintiff.
    
      W. J. Wright, contra.
   Clark, J.

This is an action for the construction of the will of West Glenny, deceased. Item 2 of that will is the portion which presents the questions which the executor desires to have answered. That item reads:

“It is my desire and will that all the residue of my estate, both real and personal of whatsoever kind be equally divided, share and share alike among my legal heirs according to law.”

The questions that present themselves are: first, who are the legal heirs of the testator; and second, in what proportion do they take?

The testator left no widow, no lineal descendant, no brother nor sister surviving him. His nearest of kin were nephews and nieces and children of deceased nephews and nieces. He, himself, was the survivor of seven brothers, each of the six who predeceased the testator having left descendants. Of his brother Samuel, there were living at the time of testator’s death, one son, three grandchildren, children of a deceased daughter, Jennie, three grandchildren, children of a deceased son, John, and two grandchildren, the children of a deceased son, Samuel. Of his brother, John, there was at the time of testator’s death, no child living, three grandchildren, who were the children of a deceased son, William N. Of his brother, Henry Glenny, there were living two children. Of his brother, William Glenny, there were living three children. • Of his brother, James Glenny, there were living seven children; and of his brother, Joseph Glenny, there was living one child.

Since the testator named no one who was to be the beneficiary under his will, but described the class among whom his estate was to be divided as “my legal heirs,” resort must be had to the statute of descent and distribution, in order to ascertain who are his legal heirs. It is readily seen that the term “legal heirs” includes the twenty-five persons who, at the time of testator’s death, composed his nephews, nieces and grand-nephews and grand-nieces, whose parents were deceased, and these only. Each of these twenty-five persons falls within the description of legal heirs of testator, and must, therefore, share in.the estate; but in what proportion ?

It is claimed by the nephews and nieces that the estate should be divided into eighteen equal parts, one of which should go to each living nephew and niece, and one to the children of each deceased nephew and niece. This is, no doubt, the manner in which the division of the estate would be made under the statute of descent and distribution, if no will had been left by testator. Ewers v. Follin, 9 Ohio St., 327.

It is further contended by those who are nearer akin to deceased, that the language “equally divided among my legal heirs” is equivalent to saying that the same shall be divided in like manner as the statute of descent and distribution would divide it had testator made no will. This claim receives apparently strong support in the case of Barr v. Denney, 79 Ohio St., 358, where it is said that a direction to distribute at a future time after the death of a widow “equally to my legal heirs” is equivalent to a direction to distribute the estate as it would be disputed, if no will had .been made.

On the other hand, it may well be claimed by grand-nieces' and grand-nephews, that while the testator refers to the statute for the purpose of ascertaining what persons are to be his donees, he has not left us to that method of fixing the proportion each of such donees shall take, but has himself'fixed that proportion by the use of the terms ‘1 equally share and share alike.

Undoubtedly the rule is, that where a testator gives his estate to his legal heirs, without further designation, and without other direction as to the proportion each shall receive, there arises a presumption that he intended resort to be had to the statute of descent and distribution, not’ only for the purpose of fixing the persons who are to take, but also for the purpose of fixing the share each of such persons shall receive.. But this presumption must .give way before any language in the will that fairly imports a different intention on the part of the testator. The testator has a right to give his estate to his legal heirs in any proportion that he may choose; the only question is, has he directed a distribution different from the statutory distribution, so that the presumption that he intended it to be divided as if he had not made a will is thereby rebutted ?

The testator’s words are “shall be divided equally share and share alike.” The statutory division would be an equal one, share and share not alike. In order to make this will consistent with a statutory division of the estate, it would be necessary to ignore and strike out the words “equally share and share alike.” Snch violence to the language of the will would be little less than making a will which testator had not made, and in direct violation of the will he did make.

But it is contended further, that the concluding phrase of item 2 “according to law” gives character to the preceding terms ‘ ‘ equally share and share alike, ’ ’ and shows them to mean that equality and that sharing which the law provides. As the law does not divide in such case equally share and share alike, it is manifest that if the testator meant the terms “.according to law” to apply to the method of division, he has required two absolutely incompatible methods of division to be applied. We must not adopt this conclusion, except from necessity, and no necessity .appears. The phrase “according to law” as it is used in the latter part of item 2 can be given its full legal effect and significance by allowing it to qualify the terms “legal heirs” and not the verb “to be divided.” The item will then read with proper punctuation “equally divided share and share alike, among my legal heirs according to law.” That is, to those who, by law, are my legal heirs. True, the expression “my legal heirs according to law” is tautological, but this is not unusual, nor is it unnatural in .this connection.

In the ease of Mooney v. Purpus, 70 Ohio St., 57, the action was one for a construction of a will, in which the language used by the testator was “whatever there remains after my decease shall be equally divided amongst my lawful heirs, share and share alike.” The testator in that case left surviving him five children and two grandchildren, who were the children of a deceased son. The court held that while the testator must be presumed to have intended that the statute of distribution should be resorted to to ascertain who were testator’s legal heirs, yet he had withdrawn from the statute the determination of the proportions in which they should share by using the terms ‘ ‘ equally share and share alike”; whereas, the statutory distribution would not be equal.

The court in that ease held that each of the two grandchildren should share equally with each of the five living children, and the estate should thus be divided into seven equal parts. That case is so nearly identical with the one at bar, that I feel confident of its controlling effect upon the question arising in this case.

In the case of Barr v. Denney, supra, before referred to, the court held, it is true, that direction in a will “to distribute equally to my legal heirs” is equivalent to a direction to make distribution in accordance with the statutes providing for descent and distribution.

In that case, the testator, James Barr, deceased, left several children surviving. It does not appear that there were any grandchildren, or any heirs at law of unequal degree of kinship to the testator. All appear to have been children. The will directed the estate to be converted into money, and at the death of testator’s widow, to be “distributed equally to my legal heirs.” A daughter, who survived testator, died without issue, prior to the death of testator’s widow. Her husband, as her administrator, claimed that portion of the proceeds of the estate which would have fallen to her, had she survived the widow.

The court held that testator’s direction that his estate should be equally divided among his legal heirs, was equivalent to a direction that it should be divided according to the statute of descent; and that as the daughter was not a legal heir 'at the time of distribution, the estate should go to those only who were such at that time. There was no question of different degrees of kinship; and in the case which the court was then considering, the proposition is strictly true, that the direction .to distribute equally to his legal heirs was equivalent to a direction to distribute according to the statutes.

We would not be warranted in extending the language of that case to a case where the legal heirs were of different degrees of kinship, and where the statute would not distribute in equal shares to all the legal distributees.

In the case at bar, the language used by testator evinces an intention to divide per capita. The estate must, therefore, be divided into twenty-five equal shares, one of which shall go to each nephew, niece, grand-nephew and grand-niece.  