Written by attorneys · grounded in primary & secondary sources — see below
A method of dividing property among descendants by which the estate is divided into shares at the first generation of issue. Each surviving descendant at that generation takes one share. The descendants of any deceased descendant take the share their ancestor would have taken, with subdivision repeating at each succeeding generation until the property is fully allocated.
Pamela Phillips created a trust directing distribution of the remainder to her issue per stirpes upon the death of her last surviving child. Pamela is survived by one child, Phoebe Park, and by two grandchildren, the children of her predeceased son Pierre Poulin. The trustee divides the property into two shares. Phoebe receives one share. The grandchildren divide the second share equally between them.
Frank R. Ward's father created a trust providing income to Frank for life and then to Frank's lineal descendants per stirpes. Frank dies survived by one child and by two grandchildren through a predeceased child. The trustee allocates one share of income to the surviving child. The two grandchildren divide the remaining share equally.
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Per stirpes divides the property into shares at the first generation of issue, with each surviving child taking one share and the descendants of a deceased child taking that child's share by further subdivision. Per capita at each generation first identifies the nearest generation with living descendants and divides shares equally among survivors at that level before subdividing remaining shares at the next generation.
Supporting sources
Yes. Coupling the term children with per stirpes language creates an internal inconsistency because per stirpes implies representation through deceased children. Courts therefore construe children to mean issue so that the descendants of a predeceased child take the share their parent would have received.
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The spouses hold a present tenancy by the entirety. The reference to issue per stirpes creates only future interests in the children that become possessory when the spouses' estate ends.
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An adopted child is treated as a child of the adopting parent for class-gift purposes unless the instrument or circumstances show a contrary intention. Once included, the adopted child's line takes its full per stirpes branch share.
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…of trust income and principal (after the death of the testator and his wife) points to equal treatment of the testator’s issue per stirpes, there is a sufficient contrary intent shown to overcome the rule of construction that the class gift of income to grandchildren is given to them as joint tenants with the right of…