This is an appeal taken ijy Lucena Burnett, widow of deceased, and by Robert B. Gaylord and Robert B. Gaylord, Jr., her assignees, from an order settling final account and directing distribution of the above-entitled estate. W. I. Burnett died August 5, 1929, at the age of eighty-five. He was survived by his widow, Lucena Burnett, four sons, a daughter, and two grandchildren, who were children of a deceased son. After his death three wills were found, the last of which was as follows:

This is the third appeal which has been taken from the proceedings had in this estate, the other two having passed upon questions not involved in this appeal. (See Estate of Burnett, 6 Cal. App. (2d) 116 [ 44 Pac. (2d) 435 ]; Estate of Burnett , 11 Cal. (2d) 259 [ 79 Pac. (2d) 89 ].)

The decree of distribution made under the last will, dated May 5, 1927, distributes to Robert B. Gaylord and Robert B. Gaylord, Jr., as assignees of the widow, % of the estate, and to the four sons, one daughter, and two grandchildren, each % of the estate.

It is the contention of the appellants that they, as assignees of the widow, were entitled to receive and have distributed to them Yz of the estate. This claim they base upon the use of the word “between" in the will, which they contend imports a division of the estate into two equal parts, one for the widow, and the other for the named heirs; that, had the testator intended that the widow, and each of the heirs, should receive an equal Ys share, he would have used the word “among”, instead of the word “between".

Respective counsel, in their briefs, assume that the testator meant “between", when he used the word “beteen", and that he meant “heirs", when he used the word “ayers". The court will accept these meanings of these words as correct.

There can be no question, that in its grammatical sense, the preposition “between” is used when applied to two things, or to two groups of things, and that when more than two are referred to, the word “among" is more properly used. But this is not necessarily controlling.

Section 101 of the Probate Code provides: “A will is to be construed according to the intention of the testator." It therefore becomes the duty of the court to determine what the real intention of the testator was.

Appellants, in their brief, have referred to, and have quoted from a number of cases in other jurisdictions, but do not cite any California case. We believe that several California cases are decisive in this matter.

In Estate of Morrison, 138 Cal. 401 [ 71 Pac. 453 ], the will provided that the residue of the estate was “to be divided between my sister, Mrs. Wann, and her daughters and my brother, Edward Stettinius". It was contended by Stettinius, that he was entitled to Y2 of the estate, and that the other half was to go to Mrs. Wann and her two daughters. The Probate Court, however, gave each 14, which decree was upheld by the Supreme Court. The Supreme Court here says :

In Estate of Fisk, 182 Cal. 238 [ 187 Pac. 958 ), the provisions of the will were very similar to these being here considered. In determining the effect of the word “between”, the Supreme Court said:

In interpreting wills, and in determining whether the beneficiaries of the will receive their share individually, or as a class, the courts have laid great stress on the question as to whether the beneficiaries are named both as a class, and as individuals. If they are named individually, then they share equally, share and share alike.

This matter was discussed in Estate of Murphy, 157 Cal. 63 [ 106 Pac. 230 , 137 Am. St. Rep. 110 ). In this estate, the Supreme Court, in reversing a decree of distribution which distributed the estate to the nieces and nephews, as a class, said:

After considering certain evidence taken, the Supreme Court says further:

Referring again to Estate of Fisk, supra, the Supreme Court says:

In the instant case, the trial court took certain evidence, under section 105 of the Probate Code. This evidence bears out the conclusion of the trial court, that each of the eight persons named in the will, were to share alike. This evidence shows that the testator was eighty-three years of age, when he made the will; that for some time prior, he had received financial aid from his children; that he had married appellant, who was not the mother of his children, in 1915, when he must already have been seventy-one years of age; that the two pieces of property, the y2 interest of which he deeded to his wife, as stated in his last will, were acquired after their marriage and were presumptively community property. The property remaining in the estate, after his death, was his separate property, having been acquired by him prior to his marriage to appellant.

The three wills presented to the court, show the testator was illiterate, and incapable of knowing the shaded distinctions, and meanings, of the words “between” and “among”. The three wills are almost, if not entirely, without punctuation, and in the first will, the given name of the wife is not correctly spelled. In the last will, the word “between”, is spelled “beteen”, and the word “heirs”, is spelled “ayers”.

Por the reasons stated, the court is of the opinion, that it was the intention of the testator to divide his estate into eight equal parts, between his wife, his children, and grandchildren, and that the decision of the trial court, in distributing ys of the estate to the assignees of the widow, and Ys to each of the named "ayers" is reasonable and correct.

In Estate of Bourn, 25 Cal. App. (2d) 590, at page 600 [ 78 Pac. (2d) 193 ], the court says:

The second point raised by appellants, is that the executor should be charged with legal interest, compounded annually, on estate moneys, which it is claimed he commingled with his own funds, or used in his own business. The evidence on this point is very unsatisfactory, and consisted of the testimony of the executor alone.

It shows that he, at all times, carried an account in the bank as executor, in which he carried a balance; that he carried an account in his office, in his own books, under the name “G. C. Burnett, Executor of the Estate of W. I. Burnett”, or in the Burnett Lumber Company books, as “G. C. Burnett, Executor”, where he credited amounts of money received by him for the estate; that about a year before the decree of distribution was made, all of the money was deposited in the bank, under an account as executor, and was there at the time distribution was ordered. The executor stated that he was in a position to pay at any time distribution was made. It does not appear, at any place in the evidence, that the money was used by the executor.

Under this evidence, the trial court found that “it is not true that said executor should be charged with any interest on said sums” and rendered its decision in accordance therewith.

Appellants rely on the following cases to support their contention ; Estate of Stott, 52 Cal. 403 , Estate of Clark, 53 Cal. 355 , and Wheeler v. Bolton, 92 Cal. 159 [ 28 Pac. 558 ]. In each of these three cases, it clearly appears that the execu tor not only commingled the funds of the estate with his own, but that he made use of them in his own business, and in one of the cases, the bank account in which the money was on deposit, was twice overdrawn. .

The eases cited by respondents, all of which are of later dates than those cited by appellants, apply more directly to the facts of this case. In Estate of Sylvar, 1 Cal. App. 35 [ 81 Pac. 663 ], the court said:

In Estate of Sarment, 123 Cal. 331 [ 55 Pac. 1015 ], the Supreme Court, in reversing a judgment allowing interest on funds of the estate, says:

It will thus be seen, that the mere commingling of funds of an estate, with the private funds of an executor, or the retention of the funds in his possession, or the deposit of the same with another, does not of itself make the executor liable to the payment of interest thereon. It must actually appear that he used the money for his own benefit.

Applying these principles of law to the facts in the instant case, we must conclude that the findings of the trial court are supported by the evidence.

For the reasons herein set forth, the order of the trial court settling the final account and the decree of distribution are affirmed. Respondents to recover costs on appeal.

Barnard, P. J., and Griffin, J.,. concurred.

Appellants’ petition for a hearing by the Supreme Court was denied March 13, 1941.