class of persons, limits the devise or bequest to those composing such class, and excludes their children or heirs.*

A gift to "legatees" is held to include an executor who has been bequeathed property in trust for others, and any one taking a bequest under a will is considered a legatee, unless such bequest is a mere memento and of small value.†

Sec. 1020. GIFTS TO A CLASS CONSIDERED.-By a gift to a class, in the construction of wills, is meant that a stated sum is given to a group of persons, which group may be either definite in number at the time of the gift or to be ascertained at a future time, and these persons when ascertained are to take in equal or other stated proportions, the share of each being dependent for its amount upon the ultimate number of persons in the group.‡

The gift to a class is usually expressed by designating the group as "children," "nephews," "grandchildren," and the like, without naming the individuals composing such class.§ But though the members of the class are named, where the context shows that this was done for the purpose of certainty in designating the class, and the devise is not in severalty to such named

*Coleman, Etc., Co. v. Figg., 25 S. W. Rep. 888.

Logan's Est., 131 N. Y. 456; Neville v. Dulaney, 89 Va. 842; White v. Mass. Inst. of Tech., 171 Mass. 84.

In re Brown, 154 N. Y. 313; Inje v. Jones, 109 Ala. 175. § Pendleton v. Kinney, 65 Conn. 222; Dryer v. Crawford, 90 Ala. 901; Bailey v. Brown, 19 R. I. 669.

persons, it will be held a gift to a class rather than to them individually.

The reason for distinguishing a gift to a class from one to individuals distributively, is the peculiar rules applicable in cases of gifts to a class. These rules are as follows:

1. Where a gift is made to a class, as to the testator's children, the gift is prima facie to those of the class who are living at the time of the testator's death.†

2. When a gift is made to a class and such gift is, by the terms of the will, to take effect in the future, persons born after the death of the testator, of the same class, will be admitted to share in such gift, up to the time of distribution.‡

3. Where each member of such a class is to receive his share at a different time, as on arriving at the age of majority where the gift is to grandchildren, then the period of distribution is when the first one of such class is entitled to his share, and those born afterwards are excluded, that is, those born after the first member has received his share, are to be excluded from the class.§

*Swallow v. Swallow, 166 Mass. 241; Bolles v. Smith, 39 Conn. 217. In Dildine v. Dildine, 32 N. J. Eq. 78, a gift “to my brothers, Ralph and Abraham," is held not to be a gift to the brothers as a class, but to them individually; see also Bill v. Payne, 62 Conn. 140; Moffett v. Elmendorf, 152 N. Y. 475.

Howland v. Slade, 155 Mass. 415; Kellett v. Shepherd, 139 Ill. 433; Triewig's Est., 169 Pa. St. 61.

Doe v. Sheffield, 13 East. 526; Sinton v. Boyd, 19 O. S. 30; Wilson v. White, 109 N. Y. 59; Evan's Est., 155 Pa. St. 646. §Thomas v. Thomas, 149 Mo. 426.

4. Where a devise is given to a class under some general name, other than "heirs at law," as to children, descendants, and the like, they will ordinarily take per capita, that is, by head as they then exist, and not per stirpes, that is by "stock" or representation.† Where the gift is to the class as "heirs at law," "heirs," and the like, they will usually take per stirpes, that is, according to the principle of representation as heirs of deceased members of such class. But the rule in every case gives

†Wells v. Hutton, 77 Mich. 129; Budd v. Haines, 52 N. J. Eq. 488.

"First, with reference to the determination of the persons who shall take, a distribution per stirpes means that the principle of representation so applies that the heirs or representatives of one previously deceased, who would have taken if alive, will take by the right of their ancestor. A distribution per capita, means that no representation applies, and that the favored class is to be determined as it exists at the time prescribed by the law or the will, and that the heirs or representatives of one previously deceased cannot take, although such decedent would have taken in his own right, as a member of the favored class, had he survived.

"Second, with reference to the share which the beneficiaries thus indicated are to take, A distribution per capita is an equal division of the property to be divided among the beneficiaries, each receiving the same share as each of the others, without reference to the intermediate course of descent from the ancestor. A distribution per stirpes, on the other hand, is a distribution with reference to the intermediate course of descent from the ancestor. It is literally a distribution according to 'stock.""-Page on Wills, Sec. 552.

Healy v. Healy, 70 Conn. 467; Richey v. Johnson, 30 O. S. 288; Rowland's Est., 151 Pa. St. 25.

way to an evident intention on the part of the testator to the contrary.

5. As a rule, legatees, take per capita, unless a contrary intention appears from the will. At Common Law and usually under the modern statutes of descent and distribution, in cases of intestacy, where the heirs are all of the same degree of relationship to the ancestor, they take per capita, while if related in unequal degrees, they take per stirpes. And this rule is followed in the construction of a will where the intention of the testator is not clear as to whether the beneficiaries are to take per capita or per stirpes.†

6. At Common Law, and under modern law, unless the statutes change the rule, or the testator indicates a different intention, where the gift is made to a class and a member or members of such class dies before the time of the distribution of the gift, their share lapses and does not pass to the children or descendants of such deceased members.‡

a

Sec. 1021. RESIDUARY CLAUSES.-By residuary clause is meant that portion of testator's will

*West v. Rassman, 135 Ind. 278; Kling v. Schnellbecker, 107 Ia. 636; Howard v. Howard, 30 Ala. 391.

†Pearce v. Rickard, 18 R. I. 142, 19 L. R. A. 472; Huggins v. Huggins, 72 Ga. 825; Kilgore v. Kilgore, 127 Ind. 276; Hills v. Barnard, 152 Mass. 67; 9 L. R. A. 211.

Ashhurst v. Potter, 53 N. J. Eq. 608; Hardin v. Arteburg, 20 Ky. L. R. 486; Bradley's Est., 166 Pa. St. 300; Swallow v. Swallow, 166 Mass. 241; Strong v. Smith, 84 Mich. 587; Bragg v. Carter, 171 Mass. 324; Howland v. Slade, 155 Mass.

which passes property not otherwise disposed of; that is, the residuum of his estate. Residuary clauses may be either general or particular: the first disposing of all remaining property, the latter only certain specified property.

A residuary clause usually comes at the close or end of a will, but not necessarily so, and such a clause usually contains words showing that it is the remainder or undisposed portion of testator's estate that such clause is to pass, but the technical words "residuum," "remainder," "rest and residue," are not necessarily required to show the testator's intention that it is a residuary clause. Any language which shows the clear intention of the testator to dispose of the residue of his property may be construed a residuary clause.*

The following rules are usually followed in the construction of residuary clauses:

1. A residuary clause will be liberally construed to prevent partial intestacy (Lamb v. Lamb, 131 N. Y. 227).

2. A general residuary bequest prima facie carries whatever personal estate remains undisposed of, including that left because of lapsed or void legacies.† Such

*Cheney v. Plumb, 79 Wis. 602; Striewig's Est., 169 Pa. St. 61; Morgan v. Huggins, 42 Fed. Rep. 869; Tompkins Est., 154 N. Y. 634.

†Buchanan v. Lloyd, 64 Md. 306; Burke v. Stiles, 65 N. H. 163; Miller's App., 113 Pa. St. 459; Rotch v. Loring, 169 Mass. 191.