Baskin's Appeal

Rogers, J.

The intention of the testator, to be collected from the whole will, must govern the .construction; and from the whole instrument, taken together, we are of the opinion that the testator has reference to the intestate laws, by which his estate will be ■divided among his children and grandchildren, per stirpes. After making certain bequests, he directs the remainder of his goods, stocks, See.,Jo be appraised and equally divided among the heirs. By these expressions, he means, his own heirs, which can only be ascertained by resorting to the statute of distribution, as has often been done in analogous cases; and taking this to be the rule, it descends to the children and grandchildren, per stirpes, This show's the persons who are to take, and the same rule must be applied to the quantum of the estate. By all the heirs, the testator means his children and grandchildren, who, in his eye, and by intendment of law, constitute but one heir. And this rule not only produces equity, but receives confirmation from the preceding part of the will; for when the testator speaks of his children, he specifies them by name; but when he refers to his grandchildren, he speaks of them as a class. Thus, he bequeathes part of his estate to be divided equally between his daughter Peggy and his son Daniel’s children, and John Black’s children, substituting his grandchildren as a branch, in the place of their respective parents.

The court therefore reverses the decree of the court below, and directs that the money be distributed among the children and grandchildren, per stirpes, and not per capita.