#### JOHN CHAMBERS, *et al, against*WILLIAM REID *and others.*

*■*Where a bequest was made, to- the children *o5*a brother and sister of th@ testator, to which is added, “that is, on. the supposition, that my brother is dead; but if he is alive at the time of my death, then, he is to receive one-half of my estate,” it was *held,*that no question as to whether the estate-was to be divided, according to- *heads*or *sloclcs*could arise, for that the brother took one-half of the estate, and his children nothing.

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. It is'my will, that, after all the foregoing items of my will are fully carried out, that the balance of my estato be disposed of, as follows; to be equally divided between the children of my brother John Chambers, and the children of my deceased sister, Nancy Wood-ward, each to share equally in all respects; that is on the supposition, that my brother be dead, but if he is alive at the time of my death, then be is to receive one-half of my estate, himself.”'

It turned out' that, at the testator’s death, his brother, John *305Chambers, was living, bnt i® a distant State, and had not been heard from by his brother for many years. He, John, had at the death of the testator,' nine children, who are all parties plaintiffs, and they claim to share equally, each with the children of Mrs. Woodward, after deducting one-half of the estate for their father, John Chambers.

The children of Mrs. Woodward, of whom there are five, and the executor of the will, are made parties defendants, and insist that these children are entitled-to have one-half of this residuary interest divided among them, conceding that' John-Chambers is entitled to the other half. The cause was set down for hearing on bill, answer and exhibits, and sent to this court. ' . '

*Fowls*for plaintiff.

*Wilson and JBoydm*for defendant

Battle, J.

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 *306leaves 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.

Pee Cueeam, Decree accordingly.