Also known as: by rights of representation · right of representation · rights of representation · per stirpes
Written by attorneys — see sources below.
A method of distributing property among descendants under which the property is divided into as many equal shares as there are surviving children of the designated ancestor and deceased children who left surviving descendants. Each surviving child receives one share. The share of each deceased child is subdivided in the same manner among that child's surviving descendants at each succeeding generation until the property is fully allocated.
Bristol Steel's founder leaves his estate to his issue by right of representation. His daughter Brianna Burke survives him. His son predeceases him but is survived by two children. The estate is divided into two shares. Brianna receives one share outright. The two grandchildren divide the second share equally.
A trust provides income to the settlor's grandchildren for life with the corpus to their issue by right of representation. One grandchild dies survived by two children. Those two children succeed to their parent's income share. The remaining grandchildren continue to receive their original shares.
Thomas A. Dewire died in January 1941. He was survived by his widow Mabel G. Dewire, his son Thomas A. Dewire Jr., and three grandchildren Thomas III, Paula, and Deborah, all children of Thomas Jr. His will placed substantially all his estate in a residuary trust. The income of the trust was payable to his widow for life and, on her death, the income was payable to his son Thomas Jr., the widow of Thomas Jr., and Thomas Jr.’s children. After the testator’s death, Thomas Jr. had three more children by a second wife. Thomas Jr. died on May 28, 1978, a widower, survived by all six of his children. Thomas III, who had served as trustee since 1978, died on March 19, 1987, leaving a widow and one child, Jennifer. The petition for a declaration of rights concerns the distribution of the one-sixth share of the trust income that had been payable to Thomas III. In his will, the testator stated that his grandchildren under guidance and discretion of the trustee shall share equally in the net income of the estate. At another point he referred to the trust income being divided equally amongst his grandchildren. The will provided for the trust’s termination twenty-one years after the death of the last surviving child of Thomas Jr. The property of the trust shall be equally divided amongst the lineal descendants of the testator’s grandchildren. There is no explicit provision in the will concerning the distribution of income on the death of a grandchild while the gift of income to grandchildren continues. A judge of the Probate and Family Court reserved and reported the case on a statement of agreed facts to the Supreme Judicial Court. The Supreme Judicial Court transferred the case on its own motion. The judge listed a large number of issues arising from the artlessly drafted will, but the court addressed them only to the extent necessary to permit a declaration of the present rights of the parties.
View caseDistribution by right of representation begins the division at the children of the designated ancestor and subdivides each deceased child's share among that child's descendants. Per capita at each generation first identifies the nearest generation with survivors and divides shares equally among living members and deceased members who left surviving descendants before recombining and subdividing remaining shares at the next generation.
Supporting sources
No. An individual who is deceased and left no surviving descendant is disregarded when counting shares under the representation rule.
Supporting sources
Coupling the term children with a direction for representational distribution creates an internal inconsistency. The phrase is construed to mean issue so that the representational scheme can operate by substituting descendants for any deceased child.
Supporting sources
…will was executed). G. L. c. 191, § 22. The rule of construction of § 22 is that the issue of a deceased relation take his share by right of representation “unless a different disposition is made or required by the will.” In this case, no class member predeceased the testator and, therefore, § 22 does not explicitly aid Jennifer. The policy…