third (%) interest in and to all that certain | the property in question, apparently without piece or parcel of land situate on Howard designating the extent of that interest, to the street, in said city and county, and occupied by the building commonly known as 'Peck Building,' and more particularly described as follows, to wit: (No question being presented as to the particular description, we omit it.)

plaintiff and also to certain other persons. On August 19, 1910, a loan was made to the defendants Peck for the purpose of taking up these mortgages, by the defendants Howard, which loan was secured by a mortgage' on the undivided two-thirds interest in the "Third. I give, devise and bequeath to my property now claimed by the defendants son, Heman Everett Peck, and to his sons, Peck. On February 17, 1911, the plaintiff Frank Peck, Roy Peck and Ora Peck, the re- and defendants Peck joined in a five-year maining undivided two-thirds (%) interest lease of the entire premises in question to in and to the above-described real estate to the Combination Club Café, which lease conbe divided equally between them share and tained the following provision: "One-third share alike; provided, however, this clause of each and every month's rent to be paid to of my will shall not take effect and be opera- Frances E. Peck; the remaining two-thirds tive until the expiration of five (5) years | of each and every month's rent to be paid to from the date of my death, and provided Everett H. Peck, the lessors." Other facts further, and I hereby direct, that my said upon which there was a conflict in the eviwife, Frances E. Peck, shall take possession dence will be noticed in the course of the of the whole of said above-described real es- discussion. tate, and collect all the rents, issues and profits thereof until the end of said five (5) years, and out of the said rents, issues and profits, to pay all the taxes and other necessary expenses of preserving and protecting said property and after paying said taxes and expenses to pay my son, Heman E. Peck, the sum of twenty-five dollars ($25.00) per month during said period of five years, and the balance of said rents, issues and profits to herself as, and in lieu of any and all other compensation for managing said real estate and collecting the rents, issues and profits thereof and paying said taxes and expenses and commissions as executrix of this, my last will and testament. *

"Fifth. I give, bequeath and devise to my wife, Frances E. Peck, all the rest and residue of my estate, real, personal and mixed. "Lastly. I do hereby nominate and appoint my wife, Frances E. Peck, executrix of this, my last will and testament, and I do hereby revoke all former wills made by me, and I hereby direct that my said executrix shall not be required to enter any bond, and that my estate shall be settled in the manner herein provided, by my executrix, and that letters testamentary or of administration shall not be required."

After this will was made, and some time prior to the death of the testator, Ora Peck died, a minor, unmarried, intestate, and without issue. The testator died on June 28, 1906, and Frances E. Peck, the plaintiff, qualified as executrix, filed an inventory, caused an appraisement of the estate to be made, and procured an order of the superior court in probate, declaring the estate solvent, and authorizing her to administer and settle the estate in accordance with the terms of the will and without the intervention of the court. Some time after the death of the testator, Frank Peck died, leaving as his sole heir his widow, the defendant Margaret Peck. After the testator's death and prior to August, 1910, the defendants Peck

At the conclusion of the evidence, the court declined to make any findings of fact or conclusions of law, but entered a decree adjudging the plaintiff to be the owner in fee simple of an undivided one-half interest in the property, free from any interest or lien of any of the defendants, and quieting her title thereto and awarding her costs. The defendants appeal.

We find it unnecessary to set out or review the voluminous pleadings further than to say that they are sufficient to raise the following questions, the answers to which must be determinative of the case: (1) Was the devise of the two-thirds interest, to be divided equally, share and share alike, between Heman Everett Peck and his sons, Frank, Roy, and Ora, a gift to individuals as tenants in common, which lapsed as to the share of Ora upon his death before the testator's demise, or was it a gift to a class composed of the persons named which survived unimpaired to the others of that class on the death of Ora Peck prior to the death of the testator? (2) Was there such a distribution of the estate prior to the commencement of this suit in accordance with either of these views as to be binding upon the parties to this action? (3) Has the respondent estopped herself to assert any claim to more than the one-third of the real estate in question? (4) Has the respondent mistaken her remedy?

1. The appellants earnestly insist that the devise to the testator's son, Heman E. Peck, and to his sons, Frank Peck, Roy Peck, and Ora Peck, of the undivided two-thirds interest in the real estate in question, to be divided equally between them, share and share alike, was a gift to these persons collectively as a class, and that those of the class who survived the testator took the share which would have gone to the testator's grandson Ora, had he outlived the testator. The respondent is equally insistent that the devise was of a specific interest to each of the persons named, as an individual,

vise to him lapsed, and the interest intended but in legal language the question whether for him fell into the residuum and passed to the respondent under the fifth clause of the will.

[1] It is, of course, a rule to which there can be no dissent that, in construing a will, the dominant intention of the testator, as manifested in his will, must, if lawful, be given effect; but the intention which controls is that which is positive and direct, not that which is merely negative or inferential. | number of persons." 1 Jarman on Wills (6th Bill v. Payne, 62 Conn. 140, 25 Atl. 354.

E. 687; Dildine v. Dildine, 32 N. J. Eq. 78, of them as children of his deceased sister. 80; In re Russell, supra; In re Murphy's If words which, standing alone, would be Estate, supra. See, also, Rood on Wills, effectual to create a class, are followed by 479, p. 317; Remsen, Wills, p. 93; 30 Am. equally operative words of devise to devisees & Eng. Encyc. Law (2d Ed.) 718. Applying by name and in definite proportions, the law this rule to the clause of the will under dis- infers from the designation by name and cussion, it is plain that, even had the four mention of the share each is to take that persons named stood in the same relation to the devisees are to take individually, and the testator so as to be capable of one gen- as tenants in common, and that the descriperal class description, and had they been so tive portion of the clause (children of a dedescribed, the further particular designation ceased sister) is intended merely as matter by name must have been held to constitute of identification." In addition to the forethe devise to them in equal parts a distribu-going authorities, the following may be cited tive gift and not a gift to a class. So far as sustaining our construction of the clause as this clause and the one preceding it are of the will here in question: Rockwell v. concerned, the testator simply indicated his Bradshaw, 67 Conn. 8, 34 Atl. 758; Ritch wife, his son, and his three grandsons by v. Talbot, 74 Conn. 137, 50 Atl. 42; Church name as his devisees of definite interest in v. Church, 15 R. I. 138, 23 Atl. 302; Dresel the property in question, indicating in a gen- v. King, 198 Mass. 546, 85 N. E. 77, 126 Am. eral way their relation to himself. As stat- St. Rep. 459; Lyman v. Coolidge, 176 Mass. ed in Bill v. Payne, supra: "It is suggested 7, 56 N. E. 831; Langley v. Westchester that the nephews and nieces, excluding the Trust Co., 180 N. Y. 326, 73 N. E. 44; Auger sister, may well enough take as a class. v. Tatham, 191 Ill. 296, 61 N. E. 77; In re But that destroys the unity of the gift and Sharpless' Estate, 214 Pa. 335, 63 Atl. 884. makes a division of the devisees. We fail As we have intimated, these rules of conto discover that the testatrix had any such struction are not absolute. They must give intention. She simply named the legatees, way to the dominant intention of the testaindicating in a general way the relation tor when that intention has been clearly aswhich each sustained to herself, and provid- certained. The appellants insist that the ed that her property should be equally di- whole will shows a dominant intention on vided among them. Thus each one took in- the testator's part that Heman E. Peck and dividually and not as a member of a class, his sons should take as a class. We have as a tenant in common and not as a joint quoted every provision of the will which tenant." can have any possible bearing upon this question. It fails to disclose any such intention.

The Supreme Court of California, In re Murphy's Estate, supra, was confronted with a situation substantially the same as that [5] It is argued, in effect, that the intennow before us, save that there the general tion is explicit to give only an undivided heirs claimed the property covered by the one-third of the property in question to the lapsed legacy, while here the claim is made widow, but that intention is no more explicit by the widow as residuary devisee. The than the intention to give of the other undimooted clause of the will there involved was vided two-thirds one-fourth only to each of as follows: "Fourth. It is my will and de- the four persons named, since the other unsire that all the rest of my property both divided two-thirds is given specifically "to real estate and personal property shall go to, be divided equally between them, share and and be equally divided among the four share alike." It is insisted that, by the dichildren of my late sister Catherine F. Flynn, vision of the Peck building into two parts of deceased; that is to say: I give, devise and one-third and two-thirds, there is an implied bequeath all the rest of my personal prop-intention that in no event shall the widow erty and all my real estate of whatsoever take more than an undivided one-third of kind and wheresoever situate, share and the property in question; but, in view of the share alike, to Timothy J. Flynn, William fact that there is no direct provision for surD. Flynn, Mary Jane Logan, and Kate I. vivorship among the four named devisees of Prendergast." William D. Flynn died with- the other two-thirds, and that under the out issue prior to the death of the testator. fifth clause of the will there is a direct proThe court, after announcing the general prin- vision that the widow take the residuum of ciples of construction to which we have re- the estate, no implication that she can in no ferred, and citing many sustaining authori- event take more than an undivided one-third ties, uses the following language: "But as- of the real estate here in question can reasuming, however, that the language used in sonably arise. It is also argued that the the clause in question is capable of two dif- testator's knowledge that his son and grandferent legal meanings resulting from the tes- sons, on the one hand, and his second wife, tator devising his estate to the four children the respondent, on the other, were not altoof his late sister, followed by other words gether friendly, was a circumstance from of express devise to each of the children by which to infer an apparent intention on his name and in equal proportions, still this men- part to give the two-thirds of the property tion of them by name and a devise to them in question to his son and grandsons as a

In

Nearly all of these cases are noticed by the Supreme Court of California in the opinion in Re Murphy's Estate, supra. As there pointed out, in none of them was any different rule of construction announced from those which we have here invoked. Church v. Church, supra, nearly all of these cases are discussed and distinguished. In each of them there was found either in the will itself or in the surrounding circumstances clear and convincing evidence of an intention on the testator's part to make a gift to the legatees or devisees named as a class and not as individuals. Here, however, we cannot find anything either in the will itself or in the surrounding circumstances to overcome the presumption that, by naming the devisees and the portions each should take the testator intended a distributive gift.

case of the death of any of them prior to his | E. 132. own demise. Had this been his dominant intention, it is difficult to conceive a reason for the omission from his will of any reference to the intended survivorship while specifying with particularity the son and the three grandsons by name, and providing that they take in equal parts, "share and share alike." To override the plain terms of the will on the mere suggestion of a possible contrary motive would be to rewrite the will, not to construe it. Again, as said in Bill v. Payne, supra: "Conceding then that the testatrix intended to disinherit her sister, it must be remembered that she could only do that by effectively giving her property to others. That she attempted to do. That she failed was owing to events which occurred after making her will-events for which she made no provision as she might have done. It frequently happens that legatees die during the lifetime of the testator. The testatrix could have provided for such a contingency by giv-lants that the respondent has, by agreement ing it to the survivors, or to other parties. She did neither. There is therefore some presumption that she intended that the law should settle the matter. That presumption is strengthened by the fact that she had an opportunity to change her will after one or more of the legatees had died, and failed to do so."

In the case before us, the presumption that the widow take is even stronger than that in favor of the sister in the case above quoted. There was no intention to disinherit the widow, or to withhold from her everything except a definite bequest. On the contrary, she was expressly made the beneficiary of the residuary clause of the will. The supposed controlling motive was as well known to the testator after the death of Ora Peck as it was before. Still, even after the death of Ora Peck, the testator made no provision for the survivorship of the devise to him in favor of the other three. If that had been his dominant intention at any time or for any reason, he would surely then have so changed his will as to express it, since a contingency which the will did not recognize or provide for other than by the residuary clause had then clearly arisen. In re Hittell's Estate, 141 Cal. 432, 75 Pac. 53; Starling's Executor v. Price, 16 Ohio St. 29. The third paragraph of the will, on its face, must be construed as a gift to the individuals named as tenants in common, and not a gift to a class, and we fail to find anything in other parts of the will or in the attendant circumstances evidencing any other intention on the testator's part.

The authorities relied upon by the appellant are: Springer v. Congleton, 30 Ga. 976; Warner's Appeal, 39 Conn. 253; Talcott v. Talcott, 39 Conn. 186; Bolles v. Smith, 39 Conn. 217; Stedman v. Priest, 103 Mass. 293; Jackson v. Roberts, 14 Gray (Mass.) 546; Schaffer v. Kettell, 14 Allen (Mass.) 528; Swallow v. Swallow, 166 Mass. 241, 44 N.

[6] 2. The will being noninterventional, there has been no decree of court distributing the estate, but it is contended by the appel

with the other devisees, distributed the entire property in question, one-third to herself, and two-thirds to the appellants Peck. The authorities cited by the appellants in this connection go no further than to sustain the view that where there has been an actual distribution of the estate, accepted as such by the devisees or legatees, it is valid and binding without any order of court making the distribution or affirming the distribution made, and that after such distribution the executor or administrator loses control over the res distributed. This may be conceded, but the question here presented is: Has there been any distribution of the property in question? There is no evidence of, nor is it claimed that there was, in fact, any specific or direct agreement to that effect. The evidence of distribution relied upon is found in the fact that the respondent joined in the lease of February 17, 1911, to the Combination Club Café, which provided that she should receive one-third of the rent and that the other two-thirds should be paid to Heman Everett Peck. The latter testified that the defendant then said that she wanted her share of the rent paid to her, and that, as to the other shares, it made no difference to her, as it was none of her business. The respondent emphatically denied making any such statement, and testified that she agreed to this division because Heman E. Peck requested it, complaining that he was in great need of money, and that she then, and at all times, had insisted that she owned an undivided one-half of the property. Another circumstance relied upon is the claim that, when the Howard mortgage was given by the appellants Peck, the respondent read it and knew that it covered an undivided two-thirds of the property and that, in order to facilitate the making of the loan secured by the mortgage, she made an affidavit that all the debts of the estate had been paid and that she

accepted part of the proceeds of that mort- | appeal was belated. The defendants Peck, gage in payment of a prior mortgage held by herself. The respondent denied having read the mortgage and denied any knowledge that it covered an undivided two-thirds of the property. It is manifest that this, and other evidence of the same character, could only be effective as proof of distribution by estopping respondent to dispute distribution.