In the Matter of the Estate of FREDERICK RAUSCHENPLAT, Deceased. ADOLPH WILHELM LOUIS GREVE et al., Appellants, v. JAMES W. STAIRS, as Executor, etc., et al., Respondents, 212 Cal. 33

Summary

The testator's half-brother had three children who were alive when the testator's estate was distributed, and the testator's will provided that the children and two other persons were to share and share alike. Another provision of the will provided that if any beneficiary contested the will, the share that was bequeathed to him was to go to the other beneficiaries in equal shares. The executor argued that the children were to take per stirpes under the will and not per capita. The trial court ordered that the children were to take per stirpes; thus, they only took a one-ninth share of the intestate's estate, instead of the one-fifth share that a per capita distribution would have provided to them. The court reversed, holding that where a testator gave property to the children of an identified person and other separately identified people, the children received their share by way of a per capita distribution. The court also ruled that the testator's use of the phrase "to share and share...