#### Dible’s Estate.

1. A testator, after devising a farm to a son, and money legacies to five other children and also to grandchildren, directed that the residue of his land should be appraised, and if not taken by any of his said heirs, it should be sold, . . . and *“*that the balance be equally divided amongst my three last-named sons and my two daughters and grandchildren within mentioned, share and share alike.” , *Held,*that the fund was to be divided *per capita.*

2. Minter’s Appeal, 4 Wright, 111, distinguished.

October —, 1875.

Before Agnew, O. J., Sharswood, Williams, Merc-ur, Gordon, Paxson, and Woodward, JJ.

Appeal from the Orphans’ Court of *Westmoreland*County, of October and November Term, 1875. No. 203.

This was an appeal by Jacob Bible and others, heirs and devisees of Jacob Dible, deceased, from the decree of the Orphans’ Court, distributing the estate of the decedent.

Jacob Dible, the decedent, died April 9th, 1872, having made his will, dated February 1st, 1870.

He devised to his son, G. F. Dible, a farm, and charged it with the support of his wife, in the manner designated in the will, with a provision that the land should be released from the charge if his wife claimed her dower. Pie gave to his sons Isaac, Jacob, and Eli, each $3000. To “ the heirs” of his deceased son John, $1200, share and share alike. To “the heirs” of his deceased daughter Margaret Lauffer, $1200, share and share alike. To his daughters Susanna Kepple and Catharine Earns, each $1200. To his grandchildren Jacob F. Carroll and Lucinda J. Dible, each $300. *280To liis stepdaughters Sarah Klingensmith and Susanna Mor row, each $300. lie directed that the bequests to his two daughters, to his grandchildren, and his two step-daughters,, to be paid from his personal property. If that should not be sufficient he ordered so much of his real estate as would satisfy the bequests to be sold by his executors. Me further provided as follows:

“ I order and direct that the balance of my real estate remaining be appraised, and if not taken at the appraisement by any of said heirs, then f direct the same to be sold, subject to the widow’s dower. I further direct, that should the part of my real estate directed to be appraised be insufficient to pay the sums bequeathed to my three sons, Isaac Dible, Jacob Dible, Jr., and Eli Dible, then my will and meaning is, that the sum bequeathed to -each of said three sons be reduced to three proportional shares according to the bequests. Should the proceeds of the same exceed the sums bequeathed to each of said three sons, then my will is that the balance be equally divided amongst my thi'ee last-named sons, my two daughters, and grandchildren, within mentioned, share and share alike, and all' the residue and remainder of my goods and chattels, debts, ready money, effects, and other my estate whatsoever and wheresoever, both real and personal, I give into the hands *of*my executors, to be distributed as above directed.”

The testator left five children, besides George F. Dible, who was not entitled under the will to ariy part of the fund; five grandchildren, children of his daughter Margaret Lauffer, deceased; two great-grandchildren, children of a deceased daughter of Margaret Lauffer; eleven grandchildren, children of a deceased son, John A. Dible; one grandchild, the child of another deceased daughter, and one grandchild, the child of another deceased son.

The real estate was sold under the directions of the will; the proceeds amounted to $5433.10, which was referred to John Armstrong, Jr., Esq., as auditor, to report distribution.

The auditor reported that the distribution should be *per capita*amongst the children and grandchildren, dividing between the two great-grandchildren the share of their mother.

The children of the testator excepted to the report, alleging that the auditor erred in allowing each of the children of John A. Dible and Margaret Lauifer, the deceased children of the testator, the same part of the funds as to the five liviug children, whereas the children of each of the deceased children were entitled to only one-ninth.

The Orphans’ Court overruled the exception, and confirmed the report.

*281The children appealed to the Supreme Court, and assigned the decree of confirmation for error.

*H. G. $ J. A. Marchand*and *11. P.*Laird, for appellants.

The terms of the will leave it uncertain whether the testator did not intend , to divide the residue into two classes, the children being one, and the grandchildren the other. When the meaning is doubtful, the principle of the intestate law prevails: Lipman’s Appeal, 6 Casey, 180; Fissel’s Appeal, 3 Id., 55; Gring’s Appeal, 7 Id., 292; Minter’s Appeal. 4 Wright, 111.

*Hunter $ ELingensmith*and *McAfee*Atkinson, for appellees,

cited 2 Jarman on Wills, p. 80; Risk’s Appeal, 2 P. F. Smith, 269; Walker *v.*Dunshee, 2 Wright, 430; Orrt’s Appeal, 11 Casey, 267;: Bender’s Appeal, 3 Grant, 210.

Judgment was entered in the Supreme Court, November 4th, 1875.

Per Curiam:

We think the residuary bequest “that the balance be equally divided amongst my three last-named sons, my two daughters and grandchildren, within mentioned, share and share alike,” was not to these persons in classes, but *per*capita, each legatee taking an equal share.. It is unlike the bequest in Minter’s Appeal, 4 Wright, 111.. There the words “ share and share alike,” preceded the entire bequest; here they follow, and being separated from the-words, “ equally divided,” and carried to the end of the bequest, tend to show an intent to qualify each legacy, by referring to the persons preceding. In Minter’s Appeal, the? intent to bequeath by classes was evidenced by separating-each one successively by the copulative conjunction “ and.”' Here it is otherwise, and all are thrown into a single expression, as it were, at one breath. We think the Court below did not err.

Decree affirmed, at the cost of the appellants, and appeal; dismissed.