Hill v. Bowers

120 Mass. 135, 1876 Mass. LEXIS 132

Opinion

Gray, C. J.

The general rule is that by a bequest to the children of A. and to the children of B., the children take per capita and not per stirpes, in the absence of words indicating a different intention. There are no such words in this will. The repetition of the words “ and the survivors of them ” only makes clear the intention of the testator not to include any children, of either person named, who did not survive the testator. Upon his death, the children who should take were ascertained, and the residue of the estate was to be equally divided among them. Blackler v. Webb, 2 P. Wms. 383. Butler v. Stratton, 3 Bro. Ch. 367. Lincoln v. Pelham, 10 Ves. 166, 176. Heron v. Stokes, 2 Dru. & War. 89 ; S. C. l Con. & Laws. 270 ; 4 Irish Eq. 284, Collins v. Hoxie, 9 Paige, 81. Weston v. Foster, 7 Met. 297 Balcom v. Haynes, 14 Allen, 204. Decree accordingly.