There is but a solitary question presented for adjudication in this case, and that lies in a very narrow compass. It arises upon the construction of the 7th clause of the will of Patrick Lynch. That clause is as follows •: (c I give, devise and bequeath the balance of my property, real and personal, to my brother, James Lynch, and to the male heirs of my brother, J ohn Lynch, deceased, except that Dennis Lynch, one of said heirs, is to receive no part whatever, but the same is to be divided among the other male heirs of said John Lynch, deceased.”
At the date of the will and the death of the testator, there were living seven sons of J ohn Lynch, of whom Dennis, (who is by the will excluded from any share of the surplus,) was one. It was substantially conceded by the counsel upon the argument that there is nothing in any other part of the will, or in the circumstances surrounding the testator, that will afford any essential or, indeed, appreciable aid in the construction of this clause, but that it stands substantially upon its own language, and the light which adjudicated cases throw upon it. The construction which the counsel for the appellants, who are the heirs of John Lynch, place upon it, is that the residuary bequest is to James Lynch, and the seven sons of John Lynch, except Dennis, in equal portions, and that the rule of law is that all the devisees take per capita and not per stirpes. On the other hand the executors of Patrick Lynch, who are the respondents in this suit, insist that by the true construction of this clause James Lynch is entitled to one half of the residuary bequest, and the male heirs of John Lynch, excluding Dennis, are entitled to the other half, and that the distribution is to be made per stirpes and not per capita, and this is the precise and only question here.
The counsel for the appellants cites a large number of cases, beginning with Blacklee v. Webb, (2 P. Wms. 383,) where it is claimed the rule for which he contends originated, to sustain the canon of interpretation upon which he insists, and the counsel for the respondents a number quite as large *80to uphold the rule upon which he claims the distribution should be made.' I do not think it would be profitable to go over the cases with a view either to their minute dissection, or in an exhaustive effort to discriminate or reconcile them. It may be conceded that they are not entirely in harmony, and yet on a survey of the whole ground covered by them, I think it may be fairly claimed, that several general proposi- • tions are established as the result of the cases, which, taken as a whole, determine that the learned judge before whom this case was tried gave the true interpretation to the clause of the will in question, and directed a distribution in accordance with the intention of the testator.
A single remark may be indulged in reference to the case of Blacklee v. Webb, where the rule contended for by the appellant’s counsel had its birth,- and by which we are exhorted to stand as conservators of the ancient landmarks too prone to be removed by daring innovations of our own day. It was a decision obviously made with considerable hesita-* tion, and under a clear inclination the other way. A difficulty which existed in holding that the children took per stirpes was that the mother of the children of the testator’s daughter Webb was living and thus they could not be said to represent her, and to determine that grandchildren could take by representation when their ancestor was yet in life, seemed, in the words of the Lord Chancellor, “ to go too. much out of the will and contrary to the words.” ‘ The language of the bequest was also “ equally” to the testator’s, 'Mr, James’, and “to his son Peter’s children,” and “his daughter Webb’s children.” These are words which have been since seized upon to uphold such a division as was de-r creed in that case; and in general it may be remarked that the case has been followed with hesitation and reluctance, and as-has been said by a judge in a recent case in Hew Jersey, “can give the rule only in cases exactly like itself.”
I now proceed to state several propositions which I thinlr *81may be gathered, from and held to be fairly established by adjudged cases.
I. In construing wills, the courts take notice of the natural relations in which the testator stands to. the objects of his bounty, and of the mode in which the law would dispose of the estate in case he had died without indicating his purposes; and thus they will interpret the will by these considerations and legal dispositions, unless such interpretation should be overcome by extrinsic facts clearly existing and obvious to the mind of the testator, or by the explicit and unmistakable terms of the will..
II. When, the word “heirs” is used in a will, and there are no other words to control the presumption, the legal inference is, that it is “nomen collectivum that it designates the persons whom the law appoints to succeed to the inheritance in cases of intestacy, and that legatees thus designated take by representation and not in their own right. This rule is nowhere better or more clearly expressed than by Chief Justice Shaw in Daggett v. Slack, (8 Metc. 453,) where he says that “a'devise to heirs, whether to one’s own or the heirs of a third person, designates not only the' persons who are to. take, but the manner and proportion in which they are to take. When there are no words to.control the presumption, the law presums the intention to be that they take, as heirs would take, by the rules of descent.”
III. Although a different intention may be inferred, and a different rule of distribution may be .applied where the word “children” is used instead of heirs, and in the absence of any thing to control the division, it may in such cases be per capita; yet even then if the intention can be collected from the will that the children of a deceased party are to take as a class, they will be adjudged to take_per stirpes.
IV. In all the cases, it is believed, without exception, in which it is held that where a gift is made to one person stand-
■ ing in a certain relation to the testator, and to the children or heirs of another person standing in the same relation to *82him, the beneficiaries take per "capita, it will be found that the words, “to be equally divided,” or “in equal shares,” or words of similar import, have, also been employed in the will and have been deemed by the courts of controlling significance in ascertaining and determining the intent of the testator..
V. So far. is it from being the established rule, that where a residuary bequest is made to A. and the heirs of B. without further description, limitation or direction, the legatees all take per capita, it may be affirmed that even in the case where the words “ equally to be divided ” are used, the courts will avail themselves of any other language in a will which may indicate a different intention on the part of the testator, and one more consonant with natural impulses, to abandon the rules of distribution per capita,' or as the books express it, upon “a faint glimpse of a contrary intent.”
I have not deemed it needful to cite under each of the foregoing propositions the authorities by which they are severally supported, but some one or all of them will be found to be fully maintained by the following, among many other cases that might be vouched in their support: Fessel’s appeal, 3 Casey, 55; Daggett v. Flack, 8 Metc. 464; Rouse v. Counter, 1 Halst. 111; Lenden v. Blackmore, 10 Sim. 626; Collins v. Hoxie, 9 Paige, 81; Murphy v. Harvey, 4 Ed. Ch. 131; Myres v. Myres, 33 How. Pr. Rep. 410; Griny’s appeal, 7 Casey, 292; Mentor’s appeal, 4 Wright, 111; Alden v. Beall, 11 Gill. & John. 123.
As the result of these principles and authorities, I think it may be safely affirmed that if the clause of the will we have been considering had simply been a bequest of the residue of the testator's property to his brother James, and to the male heirs of his deceased brother John, there being no other qualifying words, either of description or limitation, or indicating a mode of distribution, the construction should have been that the heirs of John took as a class and by representation, the one half of the residue, and James, the surviving brother, the other half. But there is another clause superadded, *83which, in my judgment, determines the construction beyond controversy. It is the direction that Dennis, one of the son’s of John, is to receive no part whatever, “ but the same is to be divided among the other male heirs of said John Lynch, deceased,” The counsel for the appellants rejects these words as insensible, and as having no bearing on the construction of the previous words, or as implying something which they clearly do not expreess, to wit; that the division was to be in seven equal parts, of which James Lynch took'one and the six sons of John, excluding James, took the other six. So far from the words being unimportant, I think they are pregnant with meaning, and that they contain the key, which, if it were otherwise difficult of accomplishment,, unlocks the will. In my view, they demonstrate that the testator had in his mind a division of the residue of his estate, into two equal parts, of which James was to receive a moiety and the six male heirs of John the other. Upon the construction contended for by the appellants there can be no equal distribution per capita, because each of the heirs of John would take, beyond the share of James, just so much as their share would be increased by the portion from which Dennis was excluded; for his share is to be apportioned not among all the devisees, but exclusively among the other male heirs of the deceased brother. This is the plain language of the clause ; it is of no doubtful interpretation, and it seems to me to establish beyond a question that the persons designated as the male heirs of John Lynch take under the residuary clause as a class, and not per capita. It is not merely a “faint glimpse,” but a manifest and “ plain ostent” of a purpose to make the division among the heirs of John Lynch per stirpes.
[Onondaga General Term, June 26, 1866.My opinion is that the judgment rendered at the special term was right, and should be in all things affirmed, with costs.
Judgment affirmed.
Bacon, Foster and Mifflin, Justices.]