Cause-removed from the Court of Equity of Mecklenburg county. Da.vid Chambers died, in the year 1868y having made and published his last will and testament, in which after several dispositions of his property in various clauses, be bequeaths ad foliov s: Item 7th.
Decided 1862-06-05
Battle, J.
¶1
We have no hesitation in saying that the construction of the will in question, contended for by the defendants is correct. Had the latter part of the clause, which relates to the supposition of the death of the testator’s brother, John, been omitted, then his nine children would have taken equally
per capita
with the five children of the testator’s deceased sister, according to the well known rule applicable to such bequeaths. See
Bryant
v.
Scott,
1 Dev. and Bat. Eq. 155.
Harrell
v.
Davenport,
5 Jones’ Eq. 4.
Roper
v.
Roper,
Ibid. 16. But the reference by the testator to his brother, John, and saying that if he were alive he should receive one-half of the estate himself, is, we think, a sufficient indication of intention that the divisions should be
per
stirpes, so that if John had been dead, his children would have taken only one-half of the estate, to be equally divided between them, leaving the other half, to be equally divided between the children of the deceased sister. See
Bivens
v. Phifer, and the cases therein referred to, 2 Jones’ 436. However that may be, we are satisfied that as John was alive, he took all that was intended for him or his family, which excludes his children, and
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leaves one-half of the legacy for-the children of the testator’s deceased sister. Mary "Woodward. A decree-may be drawn in accordance with this opinion.
