*412On Motion for Rehearing.
Mr. Chief Justice Wolvertondelivered the opinion.
In the able and exhaustive petition for a rehearing of this cause counsel for respondents strongly insist that the opinion therein impinges upon, and practically overrules, Gerrish v. Hinman, 8 Or. 348, but we are impressed that such is not its effect. That case was not alluded to, as it was thought not to be in point, although it received due consideration among the many other cases cited. It is needless to say the authorities are in hopeless conflict touching the proper distribution to be made under a bequest or devise of similar import to the one here exhibited, so that it would be a bootless task to attempt to reconcile them. The testator has directed the trustee to “divide the proceeds equally among the heirs at law,” and the question is, simply, if we may be pardoned a restatement of it, whether the heirs at law take per capita or per stirpes. The general rule, unquestionably, is that a gift to a class, without direction as to the quantum each shall take, entitles all persons who are able to bring themselves within the class, to a distribution per capita. But, if a gift be to a class unascertainable, except by resort to the statute of distribution, then, in the absence of specific directions, the provisions of the statute will control as to the proportion in which the donees shall take, and the distribution will be per stirpes: Freeman v. Knight, 37 N. C. (2 Ired. Eq.) 72; Allen v. Allen, 13 S. C. 512 (36 Am. Dec. 716). The authorities are thus far in accord, and language showing a different intention must be employed by the donor to warrant a departure from these rules in the distribution of his bounty. It is a *413cardinal principle in the construction of wills that the intention of the donor must always prevail whenever it can be ascertained. By the simple designation “heirs at law,” as a description of the objects of his bounty, the testator has left no alternative except a resort to the statute of distribution by which to determine who shall take. We find, by reference to the statute, that his brother, sister, nephews, and nieces all come within the category of “heirs at law,” as, without the will, they are all capacitated to share in his estate. The statutory distribution is per stirpes, and, without apt words showing an intention to the contrary, it must be conceded that, under the rule, the kindred designated would take accordingly. But the word “equally” has been employed, and the pivotal question is respecting its appropriate significance. We are bound to assume that it was employed for some purpose.
The primary object of making a will is to direct a different and distinct mode of distribution of the testator’s estate from that marked out by the law of descent, and if, after specific bequests, it is desired to have a residuum distributed according as the law directs, there are two ways of doing it, which would certainly be commensurate with the purpose, — one is to make no attempt at a testamentary distribution of it; and the other, to direct simply that it be distributed among the heirs at law. In its ordinary acceptation, the word “equally” signifies a division of the estate per capita (Kelly v. Vigas, 112 Ill. 242, 245), and we are not aware that it has any technical meaning of different import. Its use by the testator, therefore, is indicative of an intention that the funds should be distributed per capita; and, since the word has been employed, the per capita distribution must be adopted, unless, notwithstanding such use, an intention is discoverable from the will that the donees should take *414per stirpes. To this end the adjudications of Illinois and New York are in harmony: Kelly v. Vigas, 112 Ill. 242, 245, and Bisson v. West Shore R. R. Co., 143 N. Y. 125 (38 N. E. 104). The respondents, therefore, have the burden upon them to show, from the language of the will, that the testator intended a distribution per stirpes ; and this it is impossible to do, as the clause referred to is the only one in the whole instrument shedding any light on the question. This conclusion seems to us to be deducible from correct principles, and is supported by a strong array of respectable authority.
The other contention is that the word “equally” has reference to the statutory distribution, and that, in view of the statute, it would be an equal distribution if primarily the fund is divided into equal shares, notwithstanding the necessity of subdividing one or more of such shares before the donees can be requited: Hoch’s Estate, 154 Pa. St. 417 (26 Atl. 610). This is certainly attaching to the word “equally” a strained and unwarranted signification, and it seems to us that it should not be given such meaning or import unless the intention of the donor to have it so construed is discoverable from the will itself, and that its mere use, without else, is indicative of a per capita, and not a per stirpes, distribution. Gerrish v. Hinman, 8 Or. 348, was decided in harmony with these views. The purpose of the testator in that case was discoverable from the will. Mr. Justice Prim says: “The objects of his bounty are designated as his living children, and the 'children of deceased daughters.’ The number and names of the latter are not mentioned in the will, but are merely referred to as a class in their representative capacity; thus evincing the purpose of the testator to give them the shares their mothers would have taken if they had survived him.” In support of his position, the learned justice cites Lockhart v. Lockhart, *4153 Jones, Eq. (N. C.) 205. In Lowe v. Carter, 2 Jones, Eq. (N. C.) 377, where the property was directed to be sold, and the proceeds of said sale to be equally divided between the bodily heirs of his three daughters, Elizabeth, Sarah, and Catharine, it was held, upon like principle, that the distribution should be per stirpes; and to same effect see Bivens v. Phifer, 47 Jones, Law, 436. Notwithstanding, it was determined by a late authority ffrom the same state that the words, “to be equally divided,” used in a will, require a distribution of the property per capita: Johnston v. Knight, 117 N. C. 122 (23 S. E. 92). In that case the provision in the will was as follows : “And the balance of my estate, both real and personal, be equally divided between William T. Knight, Pattie McDowell, and the children of J. P. and Margaret L. Sugg, and the children of Elisha McDowell;” and the distribution was directed to be made per capita. The court said, among other things, that “the words ‘equally divided’ do not absolutely control in all instances, but yield only when other language of the will or the manifest intent requires it. The argument, based on justice and natural affection, does not change the rule. That would disturb other parts of the will. Testators usually divert the line of distribution from that marked out by the law of descent and distribution, and no doubt do so ‘in the light of surrounding circumstances.’ ” There is no intimation in the opinion that the earlier cases were in conflict with the views therein entertained.
So, it was early held in South Carolina, under a provision in a will directing the rest and residue of the testator’s estate not theretofore disposed of to be equally divided among the “above-named heirs,” that the distribution should be made per stirpes, because it was ascertainable from the instrument that such was the purpose of the testator: Collier v. Collier, 3 Rich. Eq. (S. C.) *416555 (55 Am. Dec. 653). But in a much later case, where the testator directed the rest of his estate to be converted into money and “equally distributed among his heirs at law, share and share alike,” it was decided that the distribution should be per capita, and the court observed that Collier v. Collier “was not in point,” although it was thought by counsel to be controlling: Allen v. Allen, 13 S. C. 512. These cases illustrate very clearly the distinction that exists between the case of Cerrish v. Hinman, 8 Or. 348, and the one at bar, and give ample support to the conclusion we have reached. Having carefully reviewed all the authorities to which our attention has been specially attracted, with many others, we feel convinced that a rehearing would not bring about any different result. The petition for rehearing must therefore be denied.
Rehearing Denied.