| Mass. | Jan 15, 1867
It is well established as a general rule of the construction of wills, that by a gift either to the children of several persons, or to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation, the objects of the gift take per capita and not per stirpes ; and therefore in the latter case each child of the second person takes a share equal to the share of the first person. But this, like some other general rules for the construction of wills, has perhaps been adopted and adhered to by the courts rather from the importance of having some rule of interpreting phrases so frequently used by testators, than from any strong and preponderating reason in its favor. And the authorities fully support the statement of Mr. Jarman that “this mode óf construction will yield to a very faint glimpse of a different intention in the context.” 2 Jarman on Wills, (4th Amer. ed.) 111, 112, and notes.
The will of Asahel Haynes, however, does not in the clause in question, by which he gives the residue of his estate to three of his brothers, two of his sisters, “ and the heirs of Lydia Walkup,” (who was a deceased sister,) use the word “ children,” but “ heirs,” and the difference is material. The word “ children,” is ordinarily used as a word of description, limited to persons standing in the same relation, and has the same effect as if all their names had been given. 2 Jarman on Wills, 69. But the word “ heirs,” in the absence of controlling or explanatory words, includes more remote descendants, and is to be applied per stirpes. Daggett v. Slack, 8 Met. 450. Tillinghast v. Cook, 9 Met. 143. The addition of the words “ to be equally divided between them ” might indeed have the effect of giving it to them per capita if those words necessarily applied to the heirs inter sese. But such is not this case; for according to the construction of either of the contending parties the residue is to be divided in equal shares, and the only question is among whom it is to be divided; and the words “ to be equally divided between them ” may be satisfied by being applied to the division between the classes, and not to that between the individuals. Holbrook v. Harrington, 16 Gray, . Risk's Appeal, 52 Penn. State R. 269.
We are therefore of opinion that the children of Lydia Walkup took as a class one sixth only of the residue of the testator’s property. Decree accordingly