dissenting, said:
I dissent from the opinion of the majority of the court just read.
*701Daniel Senger died in 1882, having made and published, on the 9th day of August, 1881, his last will and testament, which, after his death, was duly proven and admitted to record, or probate, in the county court of Rockingham county, at the August term thereof, in the year 1882; at which time, George W. Thomas, named as executor in said will, qualified as executor thereof. A controversy arising as to the construction of the said will, the executor, George W. Thomas, instituted this suit, in which he asked the circuit court to construe the said will, and to instruct him fully in regard to his. duties and powers as executor of the said will.
The chief controversy arose under the clause in the will, in which the testator disposes of the remainder of his estate, after-providing for the widow. The language used by the testator is, “It is my will and desire that all my estate be equally divided between the children of my deceased son, Joseph Senger, and the children of my daughter, Elizabeth Showalter, taking into consideration what I have already given them.”’ The question is, is the estate to be divided per capita, or per stirpes? The circuit court decided that it is to be divided per capita.
There are four children of Joseph Senger, deceased, and there are nine children of Elizabeth Showalter. If the division of the estate be made per stirpes, each family, or class of' children, will receive one-half; if divided per capita, the children of Joseph Senger, deceased, will receive only four-thirteenths, and the children of Elizabeth Showalter will receive nine-thirteenths.
If the clause in the will, already quoted, over which the-controversy is made, were the only clause in the will, we-think, the language used by the testator, taken in its grammatical and ordinary sense, imports that he recognized and established an antithesis between the two families; of his dead. *702son on the one hand, and of his living daughter on the other; and that, by the clause, as he made it, he did divide and devise his estate per stirpes “ between ” the two sets or classes of his grandchildren; and, therefore, that the circuit court erred in construing the will as dividing the estate of the testator among all the devisees as an aggregate number per capita, instead of between the children of the testator’s deceased son, Joseph, and the children of his living daughter, Elizabeth Showaiter. But this is not the only clause which throws light upon the question; on the contrary, the residuary clause, and the clause in regard to advancements, as well as the whole will, afford much more than a faint glimpse of the intention of the testator to devise his estate between the two families of his own two children, per stirpes; while the evidence in the record, which was properly admitted by the circuit court (not to alter, or vary, or add to, or contradict the terms of the will, but to aid the court to elucidate the intention of the testator, and to explain the ambiguity of the clause in controversy), leaves no doubt as to how the testator understood and construed his own will; and that he did, by his will, devise his estate between two classes per stirpes, and not per capita.
The language of the residuary clause, is—“ between the children of my daughter, on the one hand, and the children of my deceased son, on the other.” And the advancement of $2,000> which he had made to Mrs. Showalter, his daughter, he charges to her children, as a class.
In the case of Wooten v. Redd, 12 Gratt. 196, Judge Lee, speaking for this court, says: “In performing the duty of expounding a will, the court will make the amplest allowance for the unskillfulness and negligence of the testator; technical informalties will be disregarded; the most perplexing complications of words and sentences will be carefully unfolded.; and the traces of the testator’s intention will be diligently sought *703out in every part of the instrument, and the whole carefully weighed together. Nor, in the performance of this duty, will the judicial expositor be confined to its mere contents. For an investigation into the state of facts, under which the will was made, will often materially aid in elucidating the scheme which the testator had in mind for the disposition of his estate. Hence he will endeavor to place himself in the situation of the person whose language he is called on to interpret, and, as this can only be done by the aid of extrinsic evidence, such evidence may be resorted to for the purpose of showing the situation of the testator and the state of his family, and of his property, at the time of making his will. And, generally, evidence may be received as to any facts known to the testator, which may reasonably be supposed to have influenced him in the disposition of his property, and as to all the surrounding circumstances at the time of making the will.” (Wigram on Ad: of Ex. Evidence in Aid of the Interpretation of Wills, p. 11 et seq., Proposition 5, p. 51 and 57; Smith v. Bell, 6 Peters R. 68; Doe v. Martin, 1 Nev. & Mann., 524; Shelton v. Shelton, 1 Wash. 53-56; Kennon v. McRoberts, 1 Wash. 96-102; Ellis v. Merrimack Bridge, 2 Pick. R. 243; Brainerd v. Condry, 16 Conn. R. 1.) See Wooten v. Redd, 12 Gratt. 205; 2 Matthews’ Digest, 890; Knick v. Knick, 75 Va. 13; Magers v. Edwards, 12 W. Va. 822.
In Knick v. Knick, supra, Judge Burks, delivering the opinion of this court, after quoting from 1 Greenleaf’s Evidence, section 275, the general rule “that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument,” said: “The writing is very ambiguous; and, without the aid of extrinsic evidence, it is very difficult, if not impossible, to give to it any safe or satisfactory construction. Without going into particulars, it may be said of the testimony in question, in general terms, that it establishes facts and cir*704cumstances which serve to explain the true intent and meaning of the instrument, without contradicting or varying its language. It shows the surrounding circumstances—the situation of the parties; their relation to each other and to the subject-matter of agreement, and the object and purpose of both parties in entering into that agreement, or avowed at the time it was prepared and executed; and it is not inconsistent with the terms in the writing to be construed. On the contrary, it furnishes light by which the court is enabled to discern the true meaning of these terms as the parties used them. Oral evidence, to this extent, is always admissible in the construction of written instruments where ambiguity exists.” Talbot v. R. & D. Railroad Co., 31 Gratt. 685-689, and cases, there cited; West v. Smith, 11 Otto, and cases cited on pp. 263, 271, 272. Again: “a material portion of the testimony relates to the subsequent conduct of the parties, their conversations, with each other, and the admissions of the appellee, which show the construction put upon the written agreement by themselves. This testimony was clearly admissible; for, although when the meaning of an instrument is dear, an erroneous construction of it, by the parties to it, will not control its effect; yet, where there is doubt as to the proper meaning of it, the construction which the parties have put upon it is said to be entitled to great consideration.” Bank of Old Dominion v. McVeigh, 32, Gratt. 530-541, citing Railroad Company v. Trimble, 10 Wall. 367-377.
For the purpose of putting the court in possession of all the facts and circumstances surrounding the testator at the time of making the will, sundry witnesses of unimpeached and unimpeachable character proved, by their testimony in the record, that the testator, Daniel Senger, had made at least one will, if not more, prior to the making of the will in controversy, in which he divided this estate into two equal parts, and gave one *705part to Joseph. Senger’s children, and the other part to his daughter, Elizabeth R. Showalter, and her children. That but a few days before the making of the will in controversy, dated 9th of August, 1881, Daniel Senger, the testator, got William Beard, a well-known and intelligent citizen of Rockingham county, to prepare for him a complete draft of a will in which he divided his estate into two parts, and devised one of the parts to each family distinctively, as a class. In this draft of a will he discovered a mistake of six hundred dollars in some of the calculations, and he applied to a young Mr. Lee, a clerk in a neighboring store, to revise the calculation, telling him that “ he must have another will written and have it in better shape, or Showalter will spur”—referring to Henry A. Showalter, the husband of his daughter Elizabeth, with whom he had some difficulty or misunderstanding.
In his old, or former will, he had given one-half of his estate to his daughter, Mrs. Showalter, and her children. In the rough draft (which is exhibit “Draft” in the record), prepared by Esquire William Beard, the same devise was provided for, and it was directed that all of the estate was to be equally divided, between Joseph Senger’s children “ on the one hand,” and Mrs. Showalter and her children “ on the other.” But Daniel Senger, the testator, thought that his son-in-law, Henry A. Showalter, was disposed to mistreat one or two of his children, who had married against his wishes, and the old man, after trying in vain to effect a reconciliation between Showalter and his children, and after having been, as he complained, treated rudely at Showalter’s house—“ almost ordered out ”—determined then that “he did not want his property to go into the hands of such a man as Showalter manifested himself to be.” And he determined to leave the part of his estate which would go to Mrs. Showalter, under his former will, directly to the children of Mrs. Showalter. Accordingly *706with this declared purpose in view, he applied to J. W. Crist, the scrivener of the will in controversy, and instructed him to prepare the will, according to exhibit “ Draft,” which he gave him to go by, with three changes: 1st. Change of executor; 2d. Correction of the miscalculation- of six hundred dollars made by Beard; and 3d. The property devised to go to Elizabeth Showalter’s children, instead of to her. In copying the exhibit “ Draft” the scrivener omitted the important words, “ on the one hand,” which are in that draft immediately after the words, “the children of my deceased son, Joseph Senger”; and the equally important words “ on the other,” after the words “the children of Elizabeth Showalter.” He was not directed to omit these words by the testator; but left them out because he thought that the words which still remained would express the same idea.
The proof in the record is absolute and irresistible that the testator never intended to devise by the clause of his will in dispute nine-thirteenths of his estate to the children of his living daughter, Elizabeth Showalter, and only four-thirteenths to the children of his dead son, Joseph Senger ; and the construction given to it by the circuit court to this effect is erroneous.
But, independent of the proof or significance of the surrounding facts and circumstances, looking at the context of the will, and the whole will, we find no difficulty in collecting the intention of the testator that the children of the deceased parent, Joseph Senger, should take, as a class, and that the estate should be divided per stirpes, and not per capita. In the case of Hoxton v. Griffith, 18 Gratt. 574, it is declared as the general rule, that “ where a bequest is made to several persons in general terms, indicating that they are to take equally as tenants in common, each individual will, of course, take the same share; in other words, the legatees will take per capita.” The same rule applies where a bequest is to one who is living, *707and to the children of another, who is dead, whatever may be the relations of the parties to each other, or however the statute of distributions might operate upon those relations in case of intestacy. The general rule above referred to, rests, indeed, upon a very slender foundation; and, Jarman says that it “ will yield to a very faint glimpse of a contrary intention in the context.” 2 Jarman on Wills (edition 1861), p. 182. “ If, therefore, an intention can be collected from the will that the children of the deceased parent are to take as a class, that intention will prevail.”
In Hamlet v. Hamlet, 12 Leigh, 350, the testator gave the residue of his estate to be equally divided among James Hamlet, Mary Jeffres, Patsy Wilson, Nancy Jeffres, Narcissa Jeffres (all of whom were children of the testator); the children of my son George Hamlet and Lucy, his wife; the children of my daughter, Elizabeth Arnett, the children of my son Bedford Hamlet, deceased, and the children of my daughter Obedience. The court held that the property must be divided per stirpes, each family of grandchildren taking one-ninth part. See Gilliam v. Underwood, 3 Jones Eq. R. 100; Lockhart v. Lockhart, 3 Jones Eq. R. 205; Alden v. Beale, 11 Gill, 123; Lackland’s Heirs v. Downing’s Ex’or, 11 B. Mon. R. 32; Fissel’s Appeal, 27 Penn. R. 55; Lowe v. Carter, 2 Jones Eq. R. 377; Miller’s Appeal, 35 Penn. St. 323; Purnell v. Culbertson, 12 Bush. 369; Harris’ Estate, 74 Penn. St. 452; Risk’s Appeal, 52 Penn. St. 269; Lyon v. Acker, 33 Conn. 222; Jarman on Wills, 195, note 2.
If the language used leaves it doubtful as to what the testator meant, he will be presumed to have intended the legatees to take as they would have taken under the statute of descents and distributions. 2 Jarman on Wills, 196; Harris’ Estate, supra.
The circuit court erred in its decree of 13th April, 1885, in *708directing that the legatees—infants and all—shall be made equalized in advancements now, when the will declares, explicitly, that the executor shall make them equal, or pay them “ as he or she becomes twenty-one years of age.”
The court erred in treating the legacies to the infants as already vested, and in now setting apart to each infant legatee his or her portion or proportion of the estate. Jarman on Wills, p. 854, lays down the rule as follows : “The vesting is obviously postponed where the attainment to a particular age is introduced into, and made a constituent part of, the discription or character of the objects of the gift; as where the bequest is to the children who shall attain, or to such as shall attain, the age of twenty-one years, there being in such case no gift except to the persons who answer the qualification which the testator has annexed to the enjoyment of his bounty. (So, where the bequest is to the children, if, or when, they attain the particular age.) ”
The decrees complained of are, I think, erroneous, and for the reasons set forth, I dissent wholly from the opinion of the majority of the court in this case.
Decree affirmed.