Written by attorneys — see sources 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.
On April 16, 1928, John R. Ward of Baltimore City executed and delivered a deed of trust to the Baltimore Trust Company conveying stocks and bonds to the trustee. Although the record does not show the value of this personal property at the date of the deed of trust, the corpus of the estate had grown to approximately $32,500 by September 26, 1945. John R. Ward died on October 27, 1928, and Frank R. Ward, who received a life estate under the deed of trust, died on September 26, 1945. In 1934 the Baltimore Trust Company was removed as trustee by an order of the Circuit Court No. 2 of Baltimore City, and the Baltimore National Bank was appointed substituted trustee. The deed of trust granted the trustee full power to manage, sell, reinvest, and otherwise deal with the trust estate while collecting dividends and profits and paying the entire net income in monthly installments to the grantor during his natural life. It further authorized the grantor to withdraw up to $1,500 per year from the original principal by written instruments delivered to the trustee, with any withdrawn amounts reducing the principal accordingly. From and after the grantor's death the trustee was directed to pay net income in monthly installments to Frank R. Ward for life and thereafter to the lineal descendants per stirpes from time to time living of Frank R. Ward until the death of the last surviving child of Frank R. Ward who had been living at the grantor's death, at which point the trust would terminate and the corpus would be distributed in equal shares to the then-living children of Frank R. Ward and the issue per stirpes of any deceased child. The deed also contained a spendthrift provision applicable after the grantor's death and authorized the trustee to accept additional funds, with the grantor retaining an unlimited right to withdraw any additions during his lifetime. Frank R. Ward, a New Jersey resident, left a will devising his entire estate to his wife Olive Maria Ward, who survived him, and he was survived by three children: Ruth E. Ward, David E. Ward, and John F. Ward. Olive M. Ward served as executrix of Frank R. Ward's estate and as administratrix d. b. n. c. t. a. of John F. Ward's estate. By his will John R. Ward left all his property to Frank R. Ward, who survived him. In 1946 the Baltimore National Bank filed its bill of complaint in the Circuit Court of Baltimore City seeking construction of the deed of trust and naming all living parties who might have an interest as well as the administratrix d. b. n. c. t. a. of John R. Ward's estate. James J. Ryan was appointed guardian ad litem for persons not in being whose interests might be affected. Answers were filed by the guardian ad litem and the parties in being, testimony was taken, and the chancellor entered a decree holding some future interests valid and others void. The guardian ad litem appealed, and cross-appeals were filed by the other parties.
View casePer 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.
Supporting sources
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.
Supporting sources
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.
Supporting sources
…divided amongst the lineal descendants of my grandchildren.” “Equally,” referring to a multigenerational class, normally means per stirpes. New England Trust Co. v. McAleer , 344 Mass. 107, 112 (1962). Dexter v. Inches , 147 Mass. 324, 326 (1888). In such a case, the stirpes are normally placed at one generation before the…