WILL CONSTRUED TO HAVE CREATED TWO CLASSES OF HEIRS.

Court of Appeals for Wood County.

#### John A. Stearns et al v. James F. Brandeberry et al.

Decided, June 17, 1918.

*Wills*— Provision *that Remainder of Estate Go to the Heirs of Testator and His Wife*— To *he Divided Equally Share and Share.*

A testator after making certain specific bequests and devising a life estate in the remainder of his property to his wife, provided in his will as follows: “It is my request that the balance of my estate he equally divided between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike.”

*Held:*That two classes are created by the words “my heirs and the heirs of my wife Sarah,” and that the testator’s heirs, who were two brothers and a sister, would take one-half of the estate, and the heirs of his wife, who were four brothers and two sisters and two nephews, the sons of a deceased sister, would take the other ' half.

*Held,*further, that the phrase “share and share alike,” qualifies the provision for each set of heirs and that the distribution among each set of heirs of the half so devised, is to be as of the date of the death of the widow, and to be *per capita*and not *per stirpes.*

*Fries & Hatfield,*for plaintiffs.

*Feed & Maurer*and *Wade & Dillon,*contra.

Richards, J.

This action was brought by the plaintiffs as executors of the 'last will and testament of Orrin Stearns to obtain a construction thereof by the court. The will was executed on October 17,1888, *350and after making certain specific bequests and devises, gives and devises to his wife, Sarah Ann Steams, all the remainder of his property, real and personal, for and during her natural life.

The will then contains the clause which is in controversy and which reads as follows:

> "It is my request that the balance of my estate be equally divided between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike. ’ ’

In view of the fact that the wife was given a life estate in all the property remaining after the specific provisions were satisfied, the time of distribution would naturally be the date of the wife’s death; and the living beneficiaries referred to in the clause above quoted would be those who were living at that date. At the time of the execution of his will and at the time of the death of his wife, Sarah Ann Stearns, the heirs of the testator were two brothers and one sister who are named in the will and are parties to this action, and at the date of the wife’s death her heirs were four brothers and two sisters and two nephews, the sons of a deceased sister.

Counsel for the heirs of the testator claim that those heirs are entitled, under the provisions of the will quoted, to one-half of the estate remaining, while counsel for the heirs of the widow contend that both sets of heirs are giouped as one and that each heir is entitled to an equal part of the estate, no matter whether such heir be an heir of the testator or an heir of his widow. The common pleas court held with the contention made on behalf of the heirs of the testator, and awarded to said heirs one-half of the estate, construing the will to be such that the remaining one-half would pass to the heirs of the widow. In the course of the opinion of the trial judge, which has been submitted to us, he uses the following language which we think clearly states the proper construction to be placed upon the will:

> "Two classes are created by the provision, ‘my-heirs and the heirs of my wife Sarah.’ And the phrase ‘equally divided between’ means an equal division between the two classes. And the phrase ‘share and share alike’ qualifies the provision for each set. This construction gives each word its generally accepted meaning, eliminates none as surplusage and makes the provision a consistent whole.”

*351A fair construction of the clause in question in the will leads to the conclusion that the testator was intending to divide the property so that his heirs should receive as much as the heirs of his wife. It was his property that was being disposed of, and we could hardly conclude that he intended by the language used to give to each one of his wife’s nephews an equal share of his property with his own brothers and sisters; neither could we assent to substituting the word “among” for the word “between” when the testator has evidently used the word “between” accurately and expressed his intention and indicated that his heirs and his wife’s heirs constituted two classes.

In *Bassett*v. *Granger,*100 Mass., 348, the bequest reads:

> ‘ ‘ I give and bequeath all my personal property of every name and nature, after paying the foregoing legacies, to the heirs of my late husband and to my heirs equally. ’ ’

This language was construed by the Supreme Judicial Court of Massachusetts to be a bequest in equal shares to two classes.

A similar conclusion was reached in *Records*v. *Fields,*155 Mo., 314, where the provision was that the property should be “equally divided between the heirs of William Fields and James Fields, deceased:”

See also *Young’s Appeals,*83 Pa. St., 59. In the course of the opinion in the ease just cited the court uses the following language:

> 11 He and his wife were childless. There was no issue of either to whom the property could be transmitted. It may have been the joint product of their industry and economy. This or some other moving cause prompted him to direct that the property be ‘equally divided’ between families of different blood. The language clearly points to one general division, one separation of the fund. Two classes were in his mind. One class was his relations, the other class was his wife’s relations. The property was to be equally divided ‘between’ these two classes, and each class to take one-half. His relations one-half, his wife’s relations the other half. Neither the language nor the spirit of the will indicates that each relation should have an equal share.”

The conclusion indicated is not in conflict with the decision of this court in *Holmes, Exr.,*v. *Fackleman,*2 Ohio App. Reports, 258; 20 C.C.(N.S.), 109.

*352In that ease the testator devised the remainder of his property to the children of his two sisters,' Margaret Fackleman and Marion Fackleman, to be equally divided between them, share and share alike. At the time of the execution of his will both of his sisters were deceased, one having nine children living and the other four. The language of the will did not create two classes as in the case at bar, and in view of thé fact that both his sisters were deceased and all of their children were of the same relationship to the testator, a fair interpretation of the will was that the remainder of the estate should be divided into thirteen equal parts, one part going to each of the thirteen grandchildren.

In the ease at bar, the heirs of the widow were at her death four brothers and two sisters and two nephews, sons of a deceased sister, making eight in all. The distribution is to be made as of the date of the death of Sarah Ann Stearns, widow of the testator who had a life estate, and each of her heirs then living would be entitled to one undivided eighth of the half of the estate which passed by the terms of the will to her heirs. This branch of the ease falls directly within the holding of *Mooney, Guardian,*v. *Purpus, Exr., et al,*70 O. S., 57, and the distribution to tire heirs of the widow must, therefore, be *per capita,*and not *per stirpes.*

The fact that Jane Werner, one of her sisters, died subsequent to the widow’s death leaving children would not alter the method of construing the will for the estate vested at the death of the widow and Jane Werner took at the date of the death of her sister one-sixteenth of the estate.

It follows from what has been said that each of the three heirs of the testator is entitled to one undivided sixth part of the estate and each of the eight heirs of the testator’s widow is entitled to one-sixteenth part of the estate. All of the assets of the estate have been collected and converted into money and the executors have paid all the debts of the estate and there now remains in their.hands as executors the sum of $16,252.59. A decree may be entered ordering the distribution of that amount in accordance with this opinion.

Chittenden, J., and Kinkade, J., concur.