36 Pa. Super. 211 | Pa. Super. Ct. | 1908
Opinion by
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
The decree is reversed and the record remitted to the court below to make distribution in accordance with this opinion.