Farmer v. Kimball
46 N.H. 435
N.H.
1866
Check Treatment
Bartlett, J.

If, in this case, the residue of the estate had been given to the cousins and the children of the mother’s .cousins, to be equally divided among them, the devisees would have taken per capita, unless something in the will indicated a different intention on the part of the testatrix. 2 Jarm. *111, and n., (Perkins Ed.;) Blacker v. Webb, 2 P. Wms. 385; Lincoln v. Pelham, 10 Vesey 176; Longmore v. Broom, 7 Ves. 125; Barnes v. Patch, 8 Ves. 604; Davenport v. Hanbury, 3 Ves. 259; Lugar v. Harmar, 1 Cox 250; Smith v. Stratfield, 1 Mer. 358; Weld v. Bradbury, 2 Vern. 705; Abrey v. Newman, 17 L. & Eq. 125; Mattison v. Tanfield, 3 Beavan 132, & n.; Walker v. Griffin, 11 Wheat. 374; Collins v. Hoxie, 9 Paige 88; Exparte Leith, 1 Hill Ch. 153; Bunner v. Storm, 1 Sand. Ch. 362; Kean v. Roe, 2 Harrington 118; Henderson v. Womack, 6 Ird. Eq. 441; Harris v. Philpot, 5 Ib. 324; Hill v. Spruill, 4 Ib. 246; Bivens v. Phifer, 2 Jones (Law) 438; Cheeves v. Bell,1 Jones Eq. 237; Gilliam v. Underwood, 3 Ib. 100; Patterson v. Patterson, 3 Ib. 208; Feinster v. Tucker, 5 Ib. 74; Rogers v. Brickhouse, 5 Ib. 303; Burgin v. Patten, 5 Ib. 426; Howard v. Howard, 30 Ala. 391; McMaster v. McMaster, 10 Gratt. 275; Brown v. Ramsay, 7 Gill 347; Smith v. Ashurst, 34 Ala. 208; (20 D. 284, 36;) Nichols v. Denney, 37 Miss. 59, (20 D. 284, 38;) Dupont v. Hutchinson, 10 Rich. Eq. 389, (19 D. 199, 48.)

This construction is not controlled by the use of the word "between,” Abrey v. Newman, 17 L. & Eq. 126; Leuden v. Blackmere, 10 Simons 626; Warrington v. Warrington, 2 Hare 54; Williams v. Yates, 1 C. P. Cooper 177; or by the repetition of the preposition, Dowdihg v. Smith, 3 Beav. 540; Blacker v. Webb, 2 P. Wms. 383; McMaster v. McMaster, 10 Gratt. 275; Brown v. Ramsey, 7 Gill 347; or, by the fact that the devisees are not each named individually, Blackler v. Webb, 2 P. Wms. 383; Lee v. Lee, 39 Barb. 173; Roper v. Roper, 5 Jones Eq. 17; and from many of the cases already cited it appears that a difference in the degree, of kinship like that in the present case will not prevent the application of the general rule.

It is unnecessary to determine whether the mere fact of the prior mention in the will of the devisees as classes is to be regarded as a sufficient indication of an intention so to treat them in a subsequent clause; see Gilliam v. Underwood, 3 Jones Eq. 102; Lockhart v. Lockhart, 3 Ib. 205; Pardue v. Givens, 1 Ib. 312; Low v. Carter, 2 Ib. 378; Bivens v. Phifer, 2 Jones (Law) 436; though perhaps in several such cases it will be found that other circumstances aided in the conclusion, for here such a rule would fail to support the claim of the *440petitioners. The will contains no prior general division of the legatees into two classes, of which the cousins are to form one, and the children of the mother’s cousins the other. In the devise to the cousins the children of Daniel are excepted, while he takes a share equal to that of each of the other devisees; and the children of the mother’s cousins are not made devisees as a class, for the numerous children of the Collins blood are not included in the fifth clause of the will. See Doe v. Joinville, 3 East. 175.

But little stress can be laid on the facts as to the sources of the property; see Prescott v. Carr, 29 N. H. 453 ; and besides no general intent to distribute the property among the, representatives of the branches from which it was derived can be inferred, for the numerous children of the cousins of the Collins blood take under the residuary clause; and no general intent to divide the property equally between the paternal and maternal branches of the family of the testatrix can be inferred, because these Collins cousins are not included in the fifth clause of the will. In general, where a class are intended to take as representing

some person, they take together in his stead; Tucker v. Boston, 18 Pick. 162; Bretton v. Lithulier, 2 Vernon 653; Davenport v. Hanbury, 3 Ves. 260, (Sumner’s note;) Mattison v. Tanfield, 3 Beavan 132; Miller’s Appeal, 35 Penn. 323; Ortt’s Appeal, Ib. 267 ; Fissell’s Appeal, 27 Penn. 55 ; Alder v. Beall, 11 G. & I. 123 ; Bpiney v. Bpiney, 2 Ird. Eq. 103; Levering v. Levering, 14 Md. 30 ; Bool v. Mix, 17 Wend. 119 ; but here is nothing sufficiently indicative of an intention of the testatrix that the cousins should take as representatives of any one in the paternal branch, or the children of the mother’s cousins as representing any of her family, and therefore the devisees take in their own right. Weld v. Bradbury, 2 Vernon 705 ; Davenport v. Hanbury, 3 Vesey 260, Sumner’s Note; JSTorthey v. Strange, 1 P. Wms. 343 ; Bowers v. Porter, 4 Pick. 210; Tomlin v. Hatfield, 12 Simons 167.

Upon the wffiole, we think that any inference of an intention to divide the residue by classes is merely conjectural, and quite too uncertain to prevent the application of the well settled general rule; Lincoln v. Pelham, 10 Vesey 176; Kean v. Roe, 2 Harrington 120; and we are of opinion that the individuals falling within the description of the devisees in the residuary clause take per capita.

Gase discharged.