By the Court.
Warner, J.delivering the opinion.
¡11.] The only question involved in this case is, the proper construction to be given to the will of Mrs. Dorothy Randolph. Was it the intention of the testatrix, that the legatees should take per capita or per stirpes ? Taking the whole will together, we are of the opinion, that the testatrix intended that the legatees should take per stirpes, and not per capita. This view of the question is greatly strengthened, when viewed in the light of the surrounding circumstances, the condition of her family, and the division which she had previously made of a part of her property, to which she expressly refers, in the 7th clause of„her will. It appears from the record, that in November, 1844, the testatrix divided a portion of her property among her children, but the division was not equal, but was to be made equal, on the final division of the property. She then recites the amount each received. Who did the testatrix mean, when she used the term “ legatees?” Did she mean her children then in life, and each family of grand-children, as representing those who were dead? Or did she mean each one of her children then in life, and each one of her grand-children without regard to families ? If she intended that each of her children then in life, and each one of her grand-children of those who were dead, should take per capita, by the description of “legatees,” why did she omit to mention the names of Mrs. Triplett’s two chil*366dren, and the name of the child of Robert R. Randolph ? They were her grand-children, but their parents were in life to represent them, but the parents of the other grand-children named, were not in life, although the testatrix expressly states, which of them are the children- of her son Thomas Randolph, deceased, and which of them are the children of her son Richard Ii. Randolph, deceased, thus showing that she had in her mind the distinct families of her grand-children. The first part of the seventh clause of the will, manifests pretty clearly whom she meant when she used the term “legatees.”
It is my will and desire, that the residue and balance of my estate, both real and personal, shall be distributed and divided among the “ hereinafter named legatees,” in manner and form as follows, to wit: whereas, at a division of the estate of Richard Randolph, deceased, (this property was admitted to have been the property of the testatrix, and not the property of her deceased husband,) which took place on the 27th of November, 1844, there was a portion of the property of said estate set off to “ each individually,” differing in amount, and subject to an equalization at a subsequent and final division of said estate; this fact is recorded in a small memorandum book to which this refers, and which is now in my possession, that Thomas P. Randolph then received property, valued at $2,250, &c. reciting the amount which each one of her children received.
The testatrix wishes her property divided among the “ hereinafter named legateesand then recites, that at the division made in 1844, a portion of the property was set off to “ each individually ,” differing in amount, &c., that is to say, “ each of the individual legatees” among whom I wish my property divided, received at the division in 1844, certain specified amounts of property, which the testatrix goes on to mention, and by whom received, naming her four children. She had doubtless been accustomed to speak of her children, as the legatees of her deceased husband. Her mind appears to have been fixed upon an equal distribution of her property, according to the basis stated in the memorandum book, to which she refers. After stating what was the basis of that distribution between her four children, and *367the several items thereof, she further says, it is my will and desire, that the following named legatees shall receive share and share aliké, under the provisions of the foregoing items, in this my will, to wit: Martha P. Triplett, Robert R. Randolph, who were her children then living; and reciting the name of each grandchild,' specifying who were the children of her deceased son Thomas, and who were the children of her deceased son, Richard H. It is true, that the testatrix, in the latter part of the seventh clause, enumerates her grandchildren as legatees; but in what manner are they to take as legatees, is the question ? The counsel for the defendants in error insists, that they are to take per capita, share and share alike, and such certainly would be the legal effect of the latter part of the 7th clause of the will, but for the other expressions contained in it denoting a different intention. While we admit the general rule as contended for by the defendants in error, in the absence of any contrary intention; yet, the legatees will take per stirpes, if the testator’s intention to that effect appears from other expressions in the will. Roland vs. Gorsuch, 2 Cox, 187. If the testatrix intended the legatees should lake per capita, and not per stirpes, why did she refer to the partial division made of her property in 1844, and carefully . state in her will the several items of that division ? The division in 1844, was made in four unequal parts, but was to be made equal on the final division, and the testatrix carefully refers to and states the several items of that division. The testatrix then declares, “that the following named legatees shall receive share and share alike, under the provisions of the foregoing items in this my will, 8fc.” By the foregoing items to which she refers, there were but four legatees recognized, and the final division of the property was to be made equal between them; that is to say, at the final division, the property was to be divided into four equal parts, taking into view what each one had previously received.
This intention of the testatrix is patent on the face of the will. She recognized her two living children, and each family of the children of her two deceased sons, as the legatees, between whom she desired and equal division to be made, an such a division *368will be “ according to the foregoing items,” which is the manner she expressly declares, they shall receive the property.
Let the judgment of the Court below be reversed.