Brundage's Estate

Opinion by Henderson, J., After providing for several legacies the testator gave the remainder of his estate to his son, Homer, and directed further that in case of the death of his son before he became of age “then the property to go to my brothers’ and sister’s children in equal proportions share and share alike.” The son died before reaching his majority by reason whereof the contingent bequest took effect. The testator had two brothers and one sister. Each of the brothers had three children and the sister one child. We are asked to determine whether the distribution among these children should be per capita or per stirpes. The words “equally to be divided,” “to be equally divided share and share alike,” or words of similar import in a will, indicate a testamentary intention to give to the individuals and, therefore, call for a distribution per capita unless other language of the will plainly shows a contrary intention: Bender’s Appeal, 3 Grant, 210; Dible’s Estate, 81* Pa. 279; Hiestand v. Meyer, 150 Pa. 501; Priester’s Estate, 23 Pa. Superior Ct. 386. In the clause now under consideration the direction is not only that the persons entitled shall take share and share alike, but that they shall take in equal proportions, the testator evidently intending to leave no doubt as to the manner of distribution which he desired. The bequest here is to persons bearing the same relationship to the testator. They are not designated by name nor described by the names of their parents, but by words equally definite are grouped as a class in a single phrase. No more appropriate words could have [214] been employed to express the exact intention. If the bequest had been to the testator’s nephews and nieces the question might have arisen whether he intended to include in that description grandnephews and grandnieces or whether there was anything in the will to indicate that nephews and nieces by marriage were intended to be beneficiaries, but by adopting the language used there could be no doubt as to the identity of the persons. “A bequest to a number of persons not named, but answering a general description, is a gift to them as a class: ” Denlinger’s Estate, 170 Pa. 104.. The theory of 'the creation of three classes of legatees does not find support in the terms of the will. If classes are created there are but two of these — brothers’ children and sister’s children, and the estate should be divided into two equal parts, one going to each of the two classes. But the words must be wrested from their ordinary meaning to reach such a conclusion and that, too, in the face of clear words of equality. There is nothing in the will to indicate a desire on the part of the testator to give the child of his sister one-half of his estate, but there is enough to show that he wished the whole to go in equal shares to the class of persons who were children! of his brothers and his sister. The bequest is plainer than was that in Dible’s Estate, supra. Significance is attributed by the appellee to the difference in the form of expression used in that clause of the will making special bequests to the children of the testator’s brothers and the clause which we are called upon to interpret, but a legal distinction is not apparent between the words “in equal proportions share and share alike” and “to be divided equally between said children share and share alike.” We think it evident that the testator’s intention was to make equal distribution of his residuary estate among all the children of his brothers and sister. If there were doubt upon that subject the rule to follow the statute of distribution 'would apply as in Minter’s Appeal, 40 Pa. 111; Ashburner’s Estate, 159 Pa. 545; Sipe’s Estate, 30 Pa. Superior Ct. 145. The decree is reversed and the record remitted to the court below to make distribution in accordance with this opinion.