A clear intent was found that the surviving children and grandchildren of the life tenants (the parents of the grandchildren were dead) were to take equally, that is, per capita. In Levering v. Orrick, 97 Md. 139, the will expressly ordered a per capita distribution among the descendants of a life tenant. A reference to the English rule clearly was dictum, since the express direction for a per capita division was a clear evidence of intent.
Where bequests are made to descendants equally, or to all the descendants of any person, or to the descendants simply, the rule is that all take per capita, unless the contrary intention appears. Levering v. Orrick, 97 Md. 139 at page 145, 54 A. 620; Requardt v. Safe Deposit Trust Co., 143 Md. 431, 122 A. 526. In the will before us the contrary intention clearly appears because the testator qualifies his direction of an equal division among all the descendants by indicating the method as "per stirpes and not per capita."
The appellant contends that "children and descendants," form two groups or classes, while the appellees contend that they form one group or class, and the latter was the view taken by the chancellor. It is a concessum that no will exactly like this has ever been before this court, but there have been wills in which the words children and descendants have been construed and defined, which can and should be applied here. Levering v. Orrick, 97 Md. 139, 54 A. 620, and cases there cited. The appellant quotes from Lobe v. Goldheim, 153 Md. 248, 252, 138 A. 5, 6: "If one of the testator's grandchildren had died leaving direct descendants prior to the death of the last surviving child of the testator, it could scarcely be contended that the great-grandchildren of the testator should take equally with the grandchildren."
However, there were other states not following the English interpretation at that time. Levering v. Orrick, 97 Md. 139, 54 A. 620; Security Trust Co. v. Lovett, 78 N.J.Eq. 445, 79 A. 616; Soper v. Brown, 136 N.Y. 244, 32 N.E. 768; In re Bauerdorf, 77 Misc. 656, 138 N.Y.S. 673; Gest v. Way, Pa., 2 Wharton 444; Ridley v. McPherson, 100 Tenn. 402, 43 S.W. 772. Jackson v. Jackson, 153 Mass. 374, 26 N.E. 1112.
used as substantially the equivalent of "heirs of the body" and hence that distribution should be made in accordance with the law of intestate succession * * *. Illustrative of these corroborative factors are the following: (1) the conveyance specifically provides for a per stirpes distribution; (2) the conveyance refers to the law of intestate succession or used the word "heirs" or "inherit" or other similar word, in a manner justifying the inference that the conveyor thought of the class as having shares dependent upon their differing degrees of relationship to a single person; and (3) the conveyance embodies a general plan of the conveyor which can be best effectuated by a stirpital distribution.' In so far as the Restatement requires distribution per stirpes of a gift to `descendants' or `issue,' without more, this reflects a change from the early English authorities, as to `issue,' and from a dictum of Mr. Jarman in his first edition, as to `descendants,' quoted by this Court in Levering v. Orrick, 97 Md. 139, 145, 54 A. 620, and by the majority opinion in the case at bar. The rule of the Restatement was, however, adopted by this court in Mazziotte v. Safe Deposit Trust Co., supra.
The question is, not what any single word means, but how all shall be construed in connection with their context. Unlike "issue," "descendants" ordinarily is a word of fixed meaning and is all-comprehensive. Levering v. Orrick, 97 Md. 139, 145, 54 A. 620; Mazziotte v. Safe Deposit and Trust Company, supra. We are not persuaded that the condition should be restricted to "children or descendants of deceased children."
The rule is that all take per capita, unless a contrary intention appears, in cases of bequests to descendants equally, or to all the descendants of any person, or to descendants simply. Levering v. Orrick, 97 Md. 139, 145, 54 A. 620; Requardt v. Safe Deposit Trust Co., 143 Md. 431, 435, 122 A. 526. See also In re Stone v. Baker, supra.
And unless other expressions in the will afford a contradiction of this ordinary meaning it must exclude takers by substitution, as heirs or those who take in case of intestacy. Levering v. Orrick, 97 Md. 139, 145, 54 A. 620; Miller, Construction of Wills, sec. 96. No cases construing clauses in exactly the words used in the Lohmeyer will have been found, but it appears generally agreed that when the distribution is to be made among issue per capita remoter descendants will share with their parents. "If it was per capita, children and grandchildren take concurrently.
"Lineal descendent" means direct descendent, one who is in the line of descent from a certain person. 18 C.J. 792, 793; 37 C.J. 1262; Green v. Kelly, 228 Mass. 602, 118 N.E. 235; Green v. Hussey, 228 Mass. 537, 117 N.E. 798; Rasmusson v. Hoge, 293 Ill. 101, 127 N.E. 356; Levering v. Orrick, 97 Md. 139, 54 A. 620, 623; Bates v. Gillett, 132 Ill. 287, 24 N.E. 611, 612; Waldron v. Taylor, 52 W. Va. 284, 45 S.E. 336, 338; Culley v. Elford, 187 Ala. 165, 172, 65 So. 381; Abrahams v. Abrahams, 219 Ala. 533, 122 So. 625; Duncan v. De Yampert, 182 Ala. 528, 536, 62 So. 673, 676; Fuller v. Nichols, 219 Ala. 58, 121 So. 52. As a Rountree III is a lineal descendent of Mrs. Van de Graaff, entitled to an undivided one-third interest in the proceeds of the condemnation proceedings, by virtue of the will of Mrs. Hargrove. De Bardelaben v. Dickson, 166 Ala. 59, 51 So. 986; Code 1923, §§ 6903, 6907, 6902; Code 1907, § 3399; Code 1896, §§ 1025, 1023, 1022; Smith v. Bachus, 195 Ala. 8, 70 So. 261; Mason v. Pate's Ex'r, 34 Ala. 379, 388; McQueen v. Logan, 80 Ala. 304; Reynolds v. Love, 191 Ala. 218, 219, 68 So. 27; Wilson v. Alston, 122 Ala. 630, 25 So. 225; 69 C.J. 266; 25 R.C.L. 551, § 95; 28 R.C.L. 264, § 238; 2 Schouler on Wills (6th Ed.) p. 1436, § 1289; Darrow v. Florence, 206 Ala. 675, 91 So. 606, 607; Smith v
Descendants are those who have issued from an individual including children, grandchildren, and their children to the remotest degree — issue of any decree. Huston v. Read, 32 N.J. Eq. 591, 599; Bryan v. Walton, 20 Ga. 480, 512; Bates v. Gillett, 24 N.E. 611, 612, 132 Ill. 287; Van Buren v. Dash, 30 N.Y. 393, 415; Tompkins v. Verplanck, 42 N.Y.S. 412, 415, 10 App. Div. 572; Levering v. Orrick, 54 A. 620, 622, 97 Md. 139; Carter Oil Co. v. Scott, 12 Fed. 780, 783; Minshall v. Berryhill, 205 P. 932, 83 Okla. 100; Twaites v. Waller, 110 N.W. 279, 133 Iowa 84; Lich v. Lich, 138 S.W. 558, 158 Mo. App. 400; Rasmusson v. Unknown wife of Hoge, 293 Ill. 101, 127 N.E. 356; Strout v. Strout, 117 Me. 357, 104 A. 577; Green v. Hussey, 228 Mass. 537, 117 N.E. 798; Page on Wills (2 Ed.), page 1511, sec. 904; 18 C.J. 792; Caldwell v. Willis, 57 Miss. 575; 1 Jarman on Wills (3 Am. Ed.), chap. 9, sec. 2. If the devise is void as to part of the class, it is void as to the whole class.