Estate of Rauschenplat

WASTE, C. J.

This is an appeal by the three children of Mathias Grayfe (Greve) from that portion of the decree of final distribution construing the following provision appearing in the will of Frederick Rauschenplat, deceased: “Secondly, I give, devise and bequeath all of my estate, real and personal, and wherever situate, to Wihelmina Battie, my sister, of Hamburg, Germany; to all of the living children of my deceased half-brother, Mathias Grayfe, late of Hamburg, Germany, and to Paulina Stairs, daughter of James W. Stairs, of San Luis Obispo, California, share and share alike. ”

The appellants maintain that it was the intention of the testator, looking at the will from all four corners,

[34]

that the estate should be distributed

per capita

as to the persons therein named, and also

per capita

as to each child living of the deceased half-brother, Mathias Grayfe. Under appellants’ contention they will each receive one-fifth of the estate; .whereas, under the decree of distribution, they receive but one-ninth of the decedent’s property.

Appellants’ interpretation of the distributive clause of the will appears to be the correct one. In

Estate of Morrison,

138 Cal. 401 [71 Pac. 453], the residue of the estate was “to be divided between my sister, Mrs. Wann, her daughters and my brother, "Edward Stettinius”. Unlike the present case the Morrison will contained no express provision that such residuary beneficiaries should take the estate “share and share alike”. By other provisions of the will the “daughters” were mentioned by name and each of them left a specific legacy. It was concluded in that case that it was the intention of the testator to divide the residuum of the estate equally among the four persons

per capita,

and that no class composed either of the mother and daughters, or of the two daughters, was contemplated. Regarding the construction which should be placed upon the words “share and share alike” the court said: “It is further argued by appellant that the omission to add to the residuary clause of the codicil the words ‘share and share alike’ shows, or tends to show, that the construction above given is wrong. It is true that in the original will that expression is used three times, including the residuary clause, and is used once in the codicil. It is quite true that the words ‘share and share alike’