Bender's Appeal

The opinion of the court was delivered by Lewis, C. J. The words “ equally to he divided,” when used in a will, mean a division per capita and not per stirpes, whether the devisees be children and grandchildren, brothers or sisters and nephews and nieces, or strangers in blood to the testator. But where the will is silent in respect to the manner in which the legatees are to take, if the next of kin of the person described be not related to the testator in equal degree, those most remote can only claim per stirpes. Roper on Leg. 161." Upon questions of this kind the expression of each will must be attended to, for the distribution must go as directed by the testator. Roper Leg. 156. The intention, if lawful, must control every other consideration, and bear down every other rule of construction. The nature of distributions may furnish the means by which we are to ascertain who are to take, under the geperal description of “ heirs,” “next of kin,” or “ relations,” yet the wills under which they claim will be the guides as to the proportions into which the fund is to be divided. McNeilledge v. Galbraith, 8 S. & R. 43. In the case before us, the one-fourth of the residue is given to the brothers of “ my late cousin Rachel Lewis, of,.the name of Thomas, and to Doctor Benjamin Howell, share and share alike —that they take and divide this fourth remaining part of my residuary, estate.” Here is a very clear indication of the proportion in which the legatees are to take. No agreement can make it plainer. The subsequent revocation of a prior provision for the brothers of Rachel, in connection with the language of the provision, confirms this intent. The declaration that the legacy in question is in substitution of the one revoked, is in perfect harmony with it. The addition, after naming “ the said Thomas” a second time, of the words, “ their heirs, if any of them are deceased,” was manifestly not intended to change the proportions previously so plainly designated. The object was [213] merely to substitute the heirs of the deceased brother in the place of their ancestor, if the brother was prevented from taking by reason of his death. This intention is very apparent from the faqe of the will. The exception to the auditor’s report in the court below raised no question in regard to4he heirs of Rachel Thomas, and we do not understand that any such question is raised here. The court erred in excluding the heirs of Rachel Thomas from participating in the distribution. They are entitled in equal proportion to one-fourth of the sum of $14,580 92, being the share which Robert Thomas himself would have been entitled to, if he had been alive at the death of the testator. This cause came on for hearing and was argued by counsel. On consideration whereof it is ordered and adjudged that so much of the decree of the Orphans’ Court of Philadelphia as excludes the heirs of Robert Thomas from a share in the distribution of the fund, be reversed. And it is further ordered and adjudged that the sum of $14,580 92, being the one-fourth of the residuary estate of the testator, be distributed" as follows :— To Joseph Thomas ...... $3,645 28. “ Jonathan Thomas..... 3,645 23. “ Dr. Benjamin Howell .... 3,645 23. “ Ann W. Sever, wife of Horatio N. Sever' 607 53. “ Hannah Tyson, wife of Chalkley Tyson . 607 53. “ Rev. Edward H. Thomas .... 607 53. “ Ruth Ann Bender, wife of J. B. Bender . 607 53. “ Sarah Smith, by guardian . . . 607 53. “ Robert E. Thomas..... 607 53. It is further ordered and decreed that the costs be paid by Joseph Thomas, Jonathan Thomas, and Dr. Benjamin Howell