Young's Appeal , 1877 Pa. LEXIS 25 ( 1877 )

Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

The correctness of this decree is to be determined' by the construction given to the -will of Andrew Beggs. The clause in question is in these words:—

“ 3d. I will the residue of my estate, real, personal and mixed, to my beloved wife, Alcy, for and during her life; and, further, Í will that at her decease such moneys or property as she may possess be equally divided between her relations and mine, or such of them as she may believe most worthy.”

It may be conceded as a rule of construction in a will, that when a testator designates the objects of his gift by their relationship to a living ancestor, they take equal shares, per capita: McNeilledge v. Galbraith, 8 S. & R. 43 ; Same v. Barclay, 11 Id. 103; Risk’s Appeal, 2 P. F. Smith 269. But nevertheless, like all other constructions when applied to wills, it must be controlled by the general intention of the testator.

In Walker v. Griffin’s Heirs, 11 Wheat. 375, the devise was, “ I do request one-fourth part to be given to the families of G. Holloway, William B. Blackbowen and A. Bartlett, to those of their children that my wife may think proper; but in a greater proportion to Francis P. Holloway than to’any other of G. Holloway’s children ; and to Elizabeth P. Bartlett in a greater proportion than to any of A. Bartlett’s children. The balance to be given to the families of Cyrus, and John T. Griffin’s children, in equal proportion.” It was held that each of the first-named three families took as a single devisee, without any regard to the number of persons composing the family, and also that the children of Cyrus and John T. Griffin took per stirpes and not per capita, and that the property devised to them was to be divided into two equal parts, one moiety to be assigned to each family.

In Baskin’s Appeal, 3 Barr 304, the testator left three children and four grandchildren (the children of a deceased son). After some specific devises he directed the residue to “ be equally divided between all the heirs.” It was held that the residuary estate passed to his children and grandchildren per stirpes.

In Minter’s Appeal, 4 Wright 111, the testator distributed his property “ share and share alike among the children of my brother Adam, and the children of my brother Martin, and to my sister Barbara,” and the latter died before the testator, leaving children : it was held that the classification was not changed by the death of his sister, and that the legatees should be divided into three classes, and each class take as their parents would have done per stirp.es.

In Risk’s Appeal, supra, the testator made an equal division among his children, of a portion of his estate, and then ordered his real estate to be sold. After giving a specific sum therefrom to one of his two sons, he directed the residue to be “ equally divided between my beloved children George and Joseph and the children of my beloved daughter Catharine (now wife of James Risk),” it was held that Catharine’s children took per stirpes.

What then does the language of this will indicate to be the intention of the testator ? After the expiration of the life estate of his wife, he directs the property to “be equally divided between her relations and mine.” He and his wife were childless. There was no issue of either to whom the property could be transmitted. It may have been the joint product of their industry and economy. This or some other moving cause prompted him to direct that the property be “ equally divided ” between families of different blood. The language clearly points to one general division, one separation of the fund. Two classes were in his mind. One class was his relations, the other class was his wife’s relations. The property was to be equally divided “ between” these two classes, and each class to take one half. His relations one half, his wife’s relations the other half. Neither the language nor the spirit of the will indicates that each relation should have an equal share. To reach such a result would require all the relations of each, the testator and his wife, to be thrown together in one class, regardless of their relative number. So, if the wife had twenty and the testator two, her relations would take ten times as much as his relations. That would be a most manifest disregard of the direction for an equal division between the two families.

It follows, therefore, that the division of the property made by Alcy Beggs, is according to the true spirit and intent of the will of Andrew Beggs, and the court erred in decreeing the distribution to be made per capita.

Decree reversed, and the record is remitted with instructions to make distribution conformably with this opinion.