Devise and Legacy. The residuary clause of a will was as follows: "The balance of my estate is to be divided in equal portions to" (naming three persons) "daughters of my deceased brother P. my brother J. the children of my deceased sister M." (naming four persons). The will was in the handwriting of the testator. The name and residence of his brother J. were written in a separate paragraph in the centre of the residuary clause. Above it was the paragraph which named three daughters of his deceased brother P., and below it was the paragraph which named four children of his deceased sister M. The testator at the time of his death had three sisters living not mentioned in this clause, and there were living six children of his deceased brother P. and six children of his deceased sister M. Held, that the property should be distributed among the eight persons named per capita and not per stirpes.
HAMMOND, J.
The clause in question, printed so as to show the division into paragraphs and the method or lack of punctuation as actually appearing in the will, is as follows:
"Twelth The balance of My Estate is to be — divided in Equal portions to Mary Roach Margaret Roach Catherine Roach. 32 Orchard Street Amesbury Mass. daughters of my
deceased brother Patrick Roach My Brother James Roach of Lyme Connecticut The children of My deceased Sister Margeret O Brie Delia O Brien, Catherine O Brien of Lyme Connecticut Joseph O Brien of 337 Washington Street New Haven Connecticut Charles M O Brien — West Chester New York City"
The question is whether these legatees take per stirpes or per capita. If per stirpes, then the three Roach children take one third, James Roach one third, and the O'Brien children one third; if per capita, then each of the legatees takes one eighth. At the time of the testator's death there were other children of the testator's brother Patrick Roach and of his deceased sister than those named. The clause in question distinctly describes the legatees by their respective names, and plainly says that the property shall be equally divided between them; and we see nothing in the method of division into paragraphs, or in the other framework of the clause, to indicate that this language is to be taken in any other than its ordinary meaning. It is plain that the legatees take per capita. Decree accordingly.