For the following reasons I must dissent from the opinion of the majority of the court in this case.
The nine brothers and sisters of the testator do not fit the definition of a devise to a class quoted from Jarman on page 585 of the opinion, as all nine were living when the will was made and survived the testator.
In re Ihrie's Estate (Pa.) and Stoutenburgh v. Moore (N.J.) the word "between" was given its strict meaning, but this is not the rule in Illinois. Here "between" when used in a will has been often interpreted to mean "among" *Page 592 when applied to more than two persons. See Pitney v. Brown,44 Ill. 365; McCartney v. Ozburn, 118 id. 403; Carlin v. Helm, 331 id. 213.
Where a question has been repeatedly adjudicated in this State we will look to its decisions rather than those of another State. Every party to this cause now concedes that (1) the devises vested at testator's death and (2) the rule in Shelley's case operated at testator's death to vest in Sarah A. Henry (now Mussett) the fee to an undivided interest.
In Young's Appeal (Pa.) the words were to "her relations and mine;" in Mosier v. Bowser (Ill.) they were "my and my dear wife's relations;" in Godfrey v. Eppel (Ohio) they were "my and my wife's nearest kin;" in Knutson v. Vidders (Iowa) they were "our lawful heirs on both sides;" in Ruggles Estate (Me.) they were "my heirs and the heirs of my late husband."
To the same effect are the following cases cited in the brief of appellants but not in the majority opinion: Tucker v. Nugent,104 Me. 333, where the words were "my heirs and the heirs of the said Matthew Dagnan" (who was the husband of testatrix) andLaisure v. Richards, 103 N.E. (Ind.) 679, where the words were "my nearest blood relatives and the nearest blood relatives of my wife."
These cases are not controlling here and there is no analogy. There is a different reason for these decisions as it is clear in them that the testator meant two classes. The classes were exactly alike and the testator did not know when he wrote the will who if anyone would compose either class. Testator Henry in this case knew his nine brothers and sisters when he wrote his will.
Although the opinion also cites Rowley v. Currie, 94 N.J. Eq. 606, at page 588 of the opinion as a case of "similar provisions in wills where the same conclusion was reached" that case does not have testamentary provisions similar to *Page 593 the other cases in this group cited in the opinion and does not reach the same conclusion as those cases. The testamentary words in the Rowley case were "to be equally divided, share and share alike, among each of my heirs as would have taken under the laws had I died intestate, and also to Mrs. R. and her children," and the holding was that each heir took one share and each member of Mrs. R.'s family took one share — that all took per capita and that it was not a devise to two classes and the reason the court gave was there was no other provision in the will expressing any intention to devise to two classes.
The opinion admits on page 589 that some of the cases where "between" is held to mean "among" are controlled by the fact that there is a difference in the relationship between the testator and the members of the two classes. That is this case because testator's brothers and sisters were all living people in 1891 when the will was made and in 1892 when he died, and they are the people to whom he devised a 9/10ths interest in his land in fee (by operation of the rule in Shelley's case) subject to a life estate in his widow, just the same as if he had set out their respective names. The other devisees were whoever would turn out to be his wife's heirs — people not necessarily in being, uncertain in number, to be ascertained in the future and coming within Jarman's definition of a class, and furthermore they were total strangers in blood to the testator.
The rule in Illinois is that when the words "equally," "to be equally divided," "share and share alike," or "in equal parts" or equivalent words are used in a will, they import an intention to divide the property per capita. That is the construction to be given unless other words are contained in the will which indicate a division per stirpes is intended. Richards v. Miller, 62 Ill. 419, at p. 425; Dollander v. Dhaemers, 297 id. 276, at p. 278;Beall v. Beall, 331 id. 28, at p. 34; and Carlin v. Helm, 331 id. 213. *Page 594
As the trial court said there is not even a faint indication in the Henry will that the distribution was to be per stirpes. There certainly is no such indication in the punctuation used by the testator but on the other hand it indicates the division to beper capita as it is pointed out that the will reads "shall be equally divided between my brothers and sisters and her heirs, in equal parts," and there is no break by a comma or any other punctuation after the word "sisters" but there is a comma after the word "heirs."
The opinion adopted apparently has this rule reversed and goes on the assumption that a devise goes per stirpes unless there is something in the context to indicate that it goes per capita. The rule is the other way around. Almost without exception it has been held that equally between the "relatives," "heirs," or "next of kin" of the testator and of the husband or wife of the testator, connotes a division into two classes — one-half to each class. Such is the case of Mosier v. Bowser, 226 Ill. 46, and most all of the cases cited by the court on pages 4, 5, and a part of page 6 of the opinion, including Holbrook v.Harrington, 82 Mass. (16 Gray) 102, and Records v. Field,155 Mo. 314, where the devise was to the "heirs" of one person and the "heirs" of another or the classes were of the same kinship.
This case should not be confused with those cases nor should it be confused with cases containing questions of per stirpes andper capita as applied to contingent remainders. Henry made no provision in his will for descendants of such of his brothers and sisters who might predecease him. They were all living when he made the will and they are the same brothers and sisters who outlived him one year later when he died. They were all of the same kinship to him so that what they took was undoubtedly percapita as to them.
The widow cannot have the rule in Shelley's case apply half way or apply one moment and not apply the next. By its application at the death of testator there is eliminated *Page 595 from this case the question as to the manner in which her heirs would take if they had taken, because they did not take.
There is no more reason to interpret this will as making provision for two classes than there is to interpret it as making provision for three classes. Nothing in the will indicates that the testator intended to create two classes, viz., (1) his brothers and sisters and (2) whoever his wife's heirs should turn out to be. Nothing in the will indicates that he intended to create three classes, viz., (1) his brothers, (2) his sisters, and (3) whoever his wife's heirs should turn out to be.
To hold with the opinion it is necessary to ignore the punctuation of the will, the ordinary meaning in wills of the words "in equal parts" and "equally divided" and to arbitrarily read into the will an unexpressed intention of the testator.