" It was held that after the life estate of the widow terminated, the remainder was to be divided one-half to the heirs-at-law of the testator and one-half to the heirs-at-law of the widow, excluding certain distant blood relatives. Other cases involving similar provisions in wills where the same conclusion was reached, are Godfrey v. Epple, 100 Oh. St. 447, 126 N.E. 886, Knutson v. Vidders, 126 Iowa, 511, 102 N.W. 433, Ruggles Estate, 104 Me. 333, 71 A. 933, and Rowley v. Currie, 94 N.J. Eq. 606, 120 A. 653. Appellees cite many cases from this and other jurisdictions where the word "between" was considered to have been used by the testator in the sense of a division "among" a number of persons rather than a division between, two groups or two objects.
The word "among" is commonly used with reference to more than two persons, whereas the word "between" is commonly used in reference to two only. Stoutenburgh v. Moore, 37 N.J. Eq. 63, at 69 ( Ch. 1883); Van Houten v. Hall, 73 N.J. Eq. 384, at 387 ( E. A. 1907); Rowley v. Currie, 94 N.J. Eq. 606, at 612, 613 and 614 ( Ch. 1923). Furthermore, the direction in testator's will to divide the residue equally, share and share alike, contemplates a per capita and not a per stirpes division.
Respondent suggests that since the will made no provision over in the event the husband died first, decedent intended to have the statutory plan apply and her will should be construed so as to incorporate by reference the statute governing descent and distribution, but at the same time exclude Mary Palmer Smith from participation. Rowley v. Currie, 94 N.J. Eq. 606 (Ch. 1923). This contention is unsupported by any evidence either extrinsic or found in the will itself.
" A distribution "among" persons naturally suggests that testatrix had in mind a division among a number greater than two and to several individuals rather than to two classes or to an individual and a named group, for which the appropriate word would be "between." In re Davis's Estate, 319 Pa. 215, 218, 179 A. 73, 74; Rowley v. Currie, 94 N.J. Eq. 606, 613, 120 A. 653, 656; St. Louis Union Tr. Co. v. Little, 320 Mo. 1058, 1074, 10 S.W.2d 47, 53. Further, a division among persons implies that each shall share equally unless the context shows a contrary intent.
I have not overlooked the arguments of counsel for the heirs and next of kin, as such, that a will should not be construed so as to disinherit the heirs-at-law or cut off from benefit any direct descendant of the testator, except in a plain case. McDonald v. Clermont, 107 N.J. Eq. 585; Higgins v. Mispeth,118 N.J. Eq. 575; Woodruff v. White, 78 N.J. Eq. 410; Rowley v. Currie, 94 N.J. Eq. 606; Byrne v. Byrne, 123 N.J. Eq. 6. But I believe every requirement of the law as expressed in these authorities is met by my interpretation and construction of this will. In this connection it should be borne in mind that there are in this case no direct descendants of the testator involved, all of the parties in interest being collaterals.
Secondary intent will be construed, if possible, so as to harmonize with the testator's paramount intent. Thompson onConstruction of Wills, ยงยง 4, 46, 49 and 95. Miller v. Worrall, 62 N.J. Eq. 776; 48 Atl. Rep. 586; Stout v. Cook,77 N.J. Eq. 153; 75 Atl. Rep. 583; Johnson v. Bowen, 85 N.J. Eq. 76;95 Atl. Rep. 370; Sayre v. Kimble, 93 N.J. Eq. 30;114 Atl. Rep. 744; Rowley v. Currie, 94 N.J. Eq. 606; 120 Atl. Rep. 653;Byrne v. Byrne, 123 N.J. Eq. 6; 195 Atl. Rep. 848. It has truly been said `no will has a twin brother.' In re Burton'sWill, 156 Misc. 175; 281 N.Y.S. 579. That perspicuous contribution to the pages of testamentary disposition is comprehensive. Apart from its legal implications it exhibits the wisdom and industry of its judicial author.
Secondary intent will be construed, if possible, so as to harmonize with the testator's paramount intent. Thompson onConstruction of Wills ยงยง 4, 46, 49 and 95. Miller v. Worrall,62 N.J. Eq. 776; 48 Atl. Rep. 586; Stout v. Cook, 77 N.J. Eq. 153;75 Atl. Rep. 583; Johnson v. Bowen, 85 N.J. Eq. 76;95 Atl. Rep. 370; Sayre v. Kimble, 93 N.J. Eq. 30;114 Atl. Rep. 744; Rowley v. Currie, 94 N.J. Eq. 606; 120 Atl. Rep. 653;Byrne v. Byrne, 123 N.J. Eq. 6; 195 Atl. Rep. 848. It has truly been said "no will has a twin brother." In re Burton'sWill, 156 Misc. 175; 281 N.Y.S. 579. That perspicuous contribution to the pages of testamentary disposition is comprehensive. Apart from its legal implications it exhibits the wisdom and industry of its judicial author.
When there is a gift to a "class" while the beneficiaries may take as tenants in common, the members of the class are determined at the time of the testator's death, or whenever the gift vests; and so if there is a class gift to children, for instance, and one of them dies before testator, no lapse or intestacy occurs, for the members of the class are not determined until testator's death. Gordon v. Jackson, 58 N.J. Eq. 166;Trenton Trust and Safe Deposit Co. v. Sibbits, 62 N.J. Eq. 131;Rowley v. Currie, 94 N.J. Eq. 606; Forshee v. Dowdney,101 N.J. Eq. 446; 103 N.J. Eq. 374. A gift to a class is commonly defined as a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the actual number. Clark v. Morehous, 74 N.J. Eq. 658.
His wife, the stepmother of his children, so declared and the facts stipulated herein make that intention of the testator quite clear. I think that the tesator's intention would be defeated by voiding or rendering ineffective the third clause of his will. If that clause were disregarded, I feel, that such determination would be in direct conflict with the principle expressed in Rowley v. Currie, 94 N.J. Eq. 606, where the court used this language: "Except in an entirely plain case, the court will not construe a will so as to cut off from inheritance or benefit any direct descendant of a testator.
It is apparent, therefore, that this case is a pertinent illustration of such intention. Fisk v. Fisk, 60 N.J. Eq. 195, and Rowley v. Currie, 94 N.J. Eq. 606, held that where property is given to members of a class, to be divided equally, the members takes per capita. I will advise a decree in accordance with these views.