Affirming.
Ida Hafner, spinster, died March 16, 1947, having two months theretofore executed the following will: "This is my last will and testament. I request that all my property both real and personal be divided equal between my heirs. I appoint Walter Harder my executor of my estate."
At her death testatrix left surviving two brothers, a son of a brother and five nieces and nephews, children of a sister. All were sui juris and residents of Kentucky, save one brother and one nephew. It is stated that one brother and the sister had predeceased testatrix. The will was duly probated, Walter Harder qualifying as executor.
Manifesting some disagreement as to the intent of testatrix as to distribution, arising from the use of the words "divided equal between my heirs," the executor as such and individually, he being a son of the deceased sister, filed suit making all other devisees defendants, asking the court to declare the rights of the devisees. The contention of the appellants is and was that the will should be construed so as to require a per capita distribution, that is, that the net estate should be divided into eight parts, and thus distributed. The contrary contention is that the will on its face requires a distribution into four equal parts; a per stirpes distribution.
The sole issue, raised only by demurrer is fairly stated in appellants' brief as follows: "No other material facts (than those stated in the petition) appear in the record, and the sole question is one of law, as to the interpretation, * * * which appellant contends calls for an equal and per capita distribution of the estate among all the heirs." The question as stated is in conformity with our opinions in which similar situations have existed, holding that the intention of the testator must be ascertained from a reading of the entire will.
At the outset it is argued by appellant, to be considered as a circumstance, that testatrix did not accomplish anything by the writing of the will if the words are held to indicate an intention to have her property *Page 95 distributed under the laws of descent and distribution, and that it was her intention to provide that all her relatives should share equally in the distribution of her estate. This could have been accomplished by the use of words indicating that heirs of a deceased brother or sister should share equally. The very fact that testatrix did not by any words used in her will manifest a desire that her relatives of a remote degree should share per capita with those of a closer degree, or separate "heirs into classes," is of some import. The class created by testatrix, in the absence of anything in the will to justify a conclusion otherwise, is heirs.
Both parties have supplied us with well prepared briefs, citing a number of authorities in support of their contention, the briefs of appellant to our minds emphasizing the meaning and effect of the words "equal between" or words of similar import, without stressing the meaning of and intent manifested by the use of word "heirs." In those cases cited by appellant it seems clear that the documents in question were such as justified the application of the per capita rule, because of certain language used as indicating particular classes or persons who should share equally in the distribution.
To take up those cases cited by appellant and appellee, and undertake to digest or distinguish them would require much time and space. We think for the purpose of determining the question presented it will only be necessary to look to the generally accepted rule laid down in Restatement of the Law, Property, Vol. 3, Sec. 305, and two of our very recent cases in which we dealt with the subject. The rule referred to is: "When a limitation is in favor of the 'heirs' of a designated person or in other words of similar import, unless a contrary intent of the conveyor is found from additional language or circumstances, the persons so described by the limitation are those who would succeed to the property * * * if such ancestor died owning the property and intestate at the time when the group is to be ascertained in accordance with the rule stated in Section 308."
The rule mentioned is that where the word "heirs" is used to describe the conveyees, and the persons described *Page 96 are within the term employed, the conveyees are to be determined by the law governing intestate succession in force at the time of the death of the ancestor, unless an intent otherwise is manifested from additional language or circumstances.
The recent opinions referred to above are Cambron v. Pottinger,
The ruling above comports with the ruling in Shackelford v. Kauffman,
In the Cambron-Pottinger case we were called upon to construe the will of a testator, in which he had in a few words given his wife a life estate in his real and personal property, and after a specific charitable bequest *Page 97
provided that (
The above rule is fully recognized in Hatchett's Ex'r v. Leland,
We are of the opinion that the chancellor correctly held that the will authorized per stirpes distribution of the estate.
Judgment affirmed. *Page 98