Dissenting:
I find it necessary to dissent from the opinion of my associates. The main question is whether or not the grandchildren take per stirpes or per capita. If they take per stirpes, the one child of Daniel Lang takes a full 1/3 of the estate, the three children of Anna Boedeker each take 1/9 of the estate. the six children of Katie Lang Herr each take 1/18 of the estate. If, however, they take per capita and not per stirpes, then each grandchild takes 1/10 of the entire estate of Peter Lang. It will thus be seen.the question is of prime importance, considering the size of the estate.
. Taking per stirpes means, by representation. If the grandchildren in this case take per stirpes, they take because they represent their parents. If they take per capita, they take directly in their own right, and not because they represent anyone else.
When the claimants are all in the same degree of kindred, they take as next of kin, but when one or more are more remote than others they take by representation, per stirpes, what their parents would have taken.
In Kent’s Commentaries, p. 425, the Chancellor states:
“It is the doctrine under the statute of distributions, that the claimants take per stirpes only when they stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. But when they all stand in equal degrees' * * * they take per capita, or each an equal share;' because in this case, representation or taking per stirpes, is not necessary to' prevent the exclusion of those in a remoter degree; and it would be contrary to the spirit and policy of the statute, which aimed at a just and equal distribution.”
This comment, of course, is addressed to the provisions of a statute which may not be similar to our own, but illustrates the difference between the two estates, and the reason therefor.
The Chancellor further states to the *21effect that when the heirs are all in equal degree they inherit per capita or equal portions, and when they are in different degrees they inherit per stirpes, or such portion as their immediate ancestors would have inherited if living. Inheritance per stirpes is admitted when representation becomes necessary to prevent the exclusion of persons in a remoter degree.
Schouler, on Wills, 6th. Add., Sec. 1030, states in substance that where all persons entitled to share stand in the Same degree of kin to the decedent, for instance all grandchildren, and claim directly from him in their own right, and not through some intermediate relation, they take per capita. But where they are of different degrees of kindred, they take per stirpes, or according to the stock they represent. When they take as individuals they take per capita; when by right of representation— per stirpes.
This matter is discussed at some length m 41 O. Jur. 708, §594 et seq. It is there stated that,
“The essential characteristic of a taker per stirpes is that he takes in a representative capacity and stands in the place of a deceased ancestor. The determining factor in construing a will and ascertaining whether the beneficiaries shall take per stirpes or per capita is the intention of the testator, which can be reached only by an examination of the language used, as applied to all the surrounding circumstances and the conditions present in the mind of the testator at the time the will was written.”
“As a general rule, where a testator has left undetermined the proportions in which his beneficiaries are to take, the courts of Ohio, favoring equality, will direct the distribution to be per capita rather than per stirpes. But if the gift is substitutional as where children are to take their parent’s shares, they take per stirpes.”
Section 596 states:
“Ordinarily a gift to a class calls for a per capita distribution unless it clearly appears that the testator intended a different division. Whenever as a class the beneficiaries are designated by their relationship to some ancestor living at the date of a will, whether to the testator or to someone else, they share per capita and not per stirpes, especially if they are all of the same degree.” (Emphasis mine).
Section 599 states:
“A reference to the Statutes of Descent and Distribution, such as a direction that the subject of the gift shalli be divided ‘according to the laws of the state’, is sometimes treated as pointing out not only the persons who are to take, but also the proportions in which they are to take.”
Section 600 is to the effect that when a testator designates the objects of his bounty by their relationship to their living ancestor, such legatees and devisees have been held to take equal shares per capita on the ground that the fact that the ancestor is living shows that they are not to take in his place, but that he is referred to only to designate the beneficiaries. In such case, the designated ancestor takes neither directly nor indirectly. The statement in the text is supported by the citations which have been examined.
Section 10503-7 provides as follows:
“When all the descendants of an intestate, in a direct line of descent, are on an equal degree of consanguinity to the intestate, whether children, grandchildren or great-grandchildren, or. of a more remote degree of consanguinity to such -intestate the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.”
See also §10503-8 and §10504-73.
It will be noted that most of these statutes have reference to '. intestate property, and not to property devised *22by will. However, the testator has used the expression “in shares according to Jaw”. “In such shares as provided by law”. “To my legal heirs and representatives according to law”. These expressions bring the final distribution of the estate under the Statutes of Descent and Distribution, as already referred to in §599 of O. Jur., as pointing out not only the persons who are to take but also the proportion in which they are. to take, and make the provision of the statute pertinent even though there be a will.
As to further discussion as to whether an estate is taken per stirpes or per capita, see Broerman, Jr. v Kesling, 6 Oh Ap 7, Oakley v Davey, 49 Oh Ap 113, McMahon v McMahon, 3 Abs 668, Ferguson v Gasgill, 13 Abs 667 (both of the latter cases being by the Court of Appeals of the Second Judicial District) , Ewers v Follin, 9 Oh St 326, Hasse v Morrison et, 110 Oh St 153. There are many other cases that might be cited.
Having determined what the law is, the difficulty arises in applying it to the case at bar.
The following seems to be a reasonable interpretation of the item under the surrounding circumstances and the conditions present in the mind of the testator at the time he made the will. He gave a life estate to his wife. All his children and grandchildren survived both the testator and the widow. Upon the death of his wife, the Executor was to manage “such child’s or children’s interest, paying the proceeds to his legal heirs and representatives”, used to describe his three children. The word “heirs” when used in a will is flexible, and should be so construed as to give effect to the testator’s manifest intention.
Cultice v Mills, 97 Oh St 112.
This provision vests in his children only an undivided life estate — “But at the death of any of my children, their legal heirs or representatives shall come into possession of that deceased child’s share at once, and take it in fee simple in such' shares as provided by law.”
By the term “legal heirs or representatives of his children” are meant their children or his grandchildren, and vests in the grandchildren an estate in fee of that undivided interest of which the child dying had only a life estate.
“When rights of my wife cease to or in my property, as aforesaid, then I give, devise and bequeath the residue of my said property to my legal heirs according to law. The word ‘children’ as herein used does not mean grandchildren.”
Such a provision, standing alone, would vest the estate in his three children upon the death of his wife.
It is said by Burket, J., in Johnson v Johnson, 51 Oh St 446 at page 457, after quoting the provision of the testator:
“That this part of the will standing alone, would give to the widow a fee simple, can not be doubted; and if what follows could be fairly construed as merely superadded words attempting to impose a limitation upon the fee thus devised, such limitation would, of course, be void, and the fee would remain.”
Linton v Laycock, 33 Oh St 128.
MinYoung v MinYoung, 47 Oh St 501.
As showing the intent of the testator not to give to his children a fee simple estate, the last paragraph of the item provides “but they are given only a life estate, and the real estate is to pass to their heirs in fee simple.” “Their heirs”, I think means the grandchildren and does not necessarily mean that these grandchildren shall take per stirpes.
The will further provides that if his children can agree upon a division, they may divide the real estate as they think best, and control and manage the portion set off to each, and, after paying the taxes, use the income to their own benefit, this being followed by the above quoted provision that they have only a. life estate.
*23This provision, however, does not deprive the grandchildren of their fee simple interest in the entire estate, rather than in one-third thereof which might be agreed upon by the joint action of all the children; the children of the testator taking only a life estate.
The net result of all this is that there is a life estate granted to the three children to be enjoyed after the termination of the life estate of their mother.
While each grandchild must await the death of his or her parent before enjoying the estate in fee simple, yet ultimately the grandchildren take, not because they represent their respective parent, but they take the fee directly in their own right. All are in the same degree of kinship and take as next of kin, and they take per capita — or each an equal share, because representation, or taking per stirpes, is not necessary to prevent the exclusion of those in a remoter degree.
The majority has stressed the fact that the will provides, that upon the death of any child of the testator, the property shall go to “their” heirs in fee simple. The majority assumes that the word “their” is used to indicate the heirs or children of the child who dies. -This does not seem to me to be a correct interpretation of the word “their”. Had the testator desired to accomplish that which the majority holds, he would properly have used the expression that would have clearly indicated, that upon the death of the child, the children of the one so dying should inherit in fee simple the portion held by their father or mother, as the case might be. It seems to me quite reasonable to interpret the word “their” as meaning the children of all the children of the testator, or all the grandchildren. This would simply mean that upon the death of any one of the three children of the testator, the entire group of grandchildren should inherit equally that which the child had held during life, to-wit, a one-third interest. Upon the death of all the children the grandchildren would all have inherited an equal part of the testator’s estate.
To interpret the word “their” as the majority has done is to convict the testator of the misuse of a common word and the restriction of its- use to the children of the child dying, rather than to all his grandchildren, whether they be children of his son or daughter, who may die, or children of the one who might die and of the ones who still live. The last words used by the testator, before he uses the word> “their” are “any of my children”. Had the testator wished to convey the property as indicated in the majority opinion, he should have said that upon the-death of any one of my children the estate of such child should pass to his or her hens in fee simple, or words to that effect. The interpretation of the word “their” given by the majority is not supported by the use made of it by the testator.
The majority reads into Item IV an intention of the testator to bequeath his property per stirpes, and -not per capita, to his grandchildren. We will assume for illustration that the entire estate of the testator amounted to $150,000.00. If these grandchildren would take per stirpes, the single child of Daniel would take 1/3 of the ancestor’s estate or $50,000.00. The three children of Anna would each take 1/9 of his estate or approximately $16,000. Each of the six children of his child, Katie, would take 1/18 of his estate or approximately $8,300.00. The three children and all the grandchildren were living at the time he made the will.
Nowhere has the testator shown any intention of favoring one grandchild over the other to the extent that would be accomplished if the majority interpretation is correct. The intention of the testator must be arrived at from considering the entire will and the circumstances surrounding its execution and the assumption that the testator desired to deal justly, with those who would ultimately take his estate in fee simple. It must be remembered that the testator made no bequest of a fee simple title to any one of his children, but only gave to each a life estate with the fee finally vesting in his grand*24children. He had a purpose in mind in doing' this and it is quite fair to assume that his purpose was to preserve the final distribution of his estate until the death of all his children, at which time it would be ultimately vested in his grandchildren equally per capita. There is no indication that the testator wished to penalize any of his grandchildren for the simple reason that some may have belonged to a larger family group than others.
It follows that there being ten grandchildren, each inherits one-tenth of the estate — subject, however to the life interest of their respective parents.
I have arrived at a different conclusion from that of either of the Courts below and of my associates.