Also known as: per stirpes distributions · per stirpes · by the roots · by branch
Written by attorneys — see sources below.
A method of distributing property to descendants by representation. The property is divided into equal shares at the first generation of descendants of the designated ancestor. Each surviving member of that generation receives one share. The share of any deceased member who left surviving descendants is subdivided in the same manner at each succeeding generation until the property is fully allocated.
Dr. Helen Moore's revocable trust directed that clinic interests pass to her issue per stirpes. She was survived by her son Megan and by three grandchildren through her predeceased daughter. The trustee divided the interests into two equal shares at the children's generation. Megan received one share outright while the grandchildren divided the second share equally.
A testator created a trust that terminated twenty-one years after the death of his last grandchild and directed income to issue by right of representation. One grandchild predeceased the termination date leaving two children who survived. The trustee allocated the income share that would have gone to the deceased grandchild equally between those two surviving great-grandchildren.
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 casePer stirpes divides property into shares at the first generation of descendants and then subdivides any deceased member's share among that member's descendants. Per capita at each generation first counts all living descendants in the nearest generation to the ancestor and divides shares equally among them before moving to more remote generations.
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Yes. When a disposition couples the term children with a direction for per stirpes distribution, the language is internally inconsistent and the word children is construed to mean issue so that descendants of a deceased child may take by representation.
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An individual who is deceased and left no surviving descendant is disregarded. The share that would have passed to that individual is not created and the property is allocated only among the lines that have surviving descendants.
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Yes. When a trust instrument directs income to issue by right of representation, the same generational division used for corpus applies to income payments so that descendants of a deceased grandchild receive the share that would have gone to that grandchild.
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