#### JONAH BIVENS *et. al. vs.*McCALLUM PHIFER.

Where a declared general purpose of providing; bountifully for one relative, would be defeated, and a very striking inequality produced among others standing in equal degree of relationship to the testator, by applying the rule of construction to make the division *per capita,*the other rule of dividing *per stirpes*will be adopted.

PetitioN for the payment of legacies under the will of *David*Phifer, heard before Manly, Judge, at the last Spring Term of Union Superior Court.

After giving his wife 250 acres of land, (describing it) and other property amounting in value to $850, with the liberty of taking $850 in cash for and in lieu of her *thi/rd of his real estate,*and a negro woman, and making other provisions which resulted in the accumulation of the fund in question, and are *437not material to the question involved, the testator proceeds: “ My will and desire is, that my executors hereinafter named, at my decease, shall sell my negro property in families, or at the discretion of my executors, and the balance of my property not above named: sale to bo conducted as all executors’ and administrators’ sales are: and the proceeds of sale, together with what notes and cash may be on hand at the time of my decease, all to be disposed of as follows : Item, my will and desire is, that my son Matthew Phifer’s heirs : my son David- Phifer’s heirs: my son Ezra Phifer’s heirs: my son, McCallum Phifer: my daughter Eachel Biven’s heirs: my daughter Martha Craig’s heirs, each receive as much of my estate as the value of my land given to my wife ; then beloved wife, Elizabeth Phifer, and the above named heirs, with the exception hereinafter named, to share and share alike.”

“ Item, my will and desire is, that if my grand-daughter, Mary Jane Phifer, should die before she comes of age to receive her part of my estate, it to be equally divided among my lawful heirs.”

McCallum Phifer, and the widow Elizabeth, were appointed executors ; the former only qualified.

In 1852, the testator added a codicil to the above will, which adds an additional amount to the fund *“*to be divided among my heirs as above directed.”

Eachel Bivens died in the life-time of the testator, leaving six children,

Martha Craig four children,

Martha Phifer seven *“*

David Phifer three *“*

Ezra Phifer one child.

McCallum Phifer is still surviving. So, with the widow, there would be twenty-three individuals if reckoned by the *per capita*rule; and only seven classes, with the widow, if reckoned by the *per stirpes*rule. The suit was brought against McCallum Phifer by the grand-children, praying that their legacies should be paid them all equally, or *per capita.*

It was referred to a commissioner, *J. M.*Stewart, to take *438an account of the estate of David Phifer, Sr., and report the amount of the estate and the part due each of the legatees under the will. He reported the sum of $34,059 01, which was divisible into seven parts, one, viz: $4,929 59, forMc-Calluin Phifer; the like sum (with a small deduction) to the widow; and the like sum to each of the families of the deceased sons and daughters of the testator.

To this report an exception was filed in the County Court, insisting that the division should be *madeper*capita,. On consideration and argument in that Court, the exception was overruled and the report confirmed. And judgment being given ■for the petitioners, according to this report, they appealed to the Superior Court.

In the Superior Court it was proved that McCallum Phifer *was a man with a family of children,*and the only question in the cause, being whether the division under the will of David Phifer should be made *per cepita*or *per stinpes,*his Ilonor^ considering the above fact, in connexion with various clauses of the will, decided, that the intention of the testator was, that the division should be mad *eper stirpes.*He gave judgment that the report be confirmed, and that the parties recover accordingly, from which judgment the plaintiffs appealed to this Court.

*Wilson,*for the plaintiffs.

*Osborne*and *If. 0. Jones,*for the defendant.

Battle, J.

If that clause of his will by which the testator directed that his son Matthew Phifer’s heirs, his son David Phifer’s heirs, his son Ezra Phifer’s heirs, his daughter Rachel Biven’s heirs, his daughter Martha Craig’s heirs, his son Mc-Callum Phifer, and his widow Elizabeth Phifer, should take his estate after being converted into money, share and share alike, had stood alone, then according to the general rule, established by several adjudications of this Court, the legatees would take *per capita*and not *per stirpes. Ward*v. *Stowe,*2 Dev. Eq. 509; *Harris*v. *Philpot,*5 Ire. Eq. 324; *Cheeves*
      *439v. *Bell,*1 Jones’ Eq. 234. But if there be any thing in the will, indicative of an intention that they shall take as families, the general rule will not apply, and the division shall be *per stirpes*and not *per*capita, *Spivey*v. Spivey, 2 Ire. Eq. 100; Martin *v*. Gould, 2 Dev. Eq. 305; *Henderson*v. *Womack,*6 Ire. Eq. 437. The question then, is whether there he in the will before us, any indication of an intention to take the case out of the general rule.- A careful examination of the different clauses of the will, comparing one with another, has satisfied us that there is, and that this appears from at least two cir-stances.

1st. It is manifest from eveiy part of his will and codicil, that the testator intended to make a fair provision for his “ beloved wife,” so far as the amount of his estate and the just claims of his children upon his bount}T, would allow. In construing his will, in order to ascertain what that provision was intended to be, we have a right to look to the condition of his estate as it was found to be at the time wThen his will was made. *Lillard*v. Reynolds, 3 Ire. Rep. 366; *Boys*v. *Williams,*2 Russ. and Myl. Rep. 6 89; *Martin*v. *Drinkwa*ter, 2 Beavan 215. In the latter case Lord LaNgdalb said, “I consider the rule as settled: you are at liberty to prove the circumstances of the testator, so far as to enable the Court to place itself in the situation of the testator at the time of making his will, but you are not at liberty to prove either his motives or intentions.” In the present case it appears that the will Avas written in 1848, the codicil in 1852, and that the testator died in March, 1853. It is not shown or suggested that the value of the estate had materially increased or diminished between the times when the will and codicil Avere executed, and the time when the account was stated by tlie referee in 1855. The whole estate may, then, be taken to have been Avorth about $35,000 when the will was made. Now, if the testator is to be supposed to have intended a *per capita*division among the legatees, in that clause of his will to which avc first referred, his widow would get only about $1500, there being twenty-three claimants: but if a *per stirpes*division *440were designed, then her share would be about $5000. "We cannot hesitate in saying that the testator intended to make for her, the latter, and not the former totally inadequate provision ; and that, therefore, the division between his son and kis'grand-children, should be by families, i. *e.per stirpes.*

2nd. The other circumstance which has aided in bringing us to this conclusion, is to be found in the fact which is stated by his Honor in the Court below, as the ground of his opinion. It was shown that the testator’s son, McOallum Phifer, was “ a man with a family of children,” and it cannot well be supposed that the testator, in providing for his grand-children, was not willing to put McCallum’s children upon the same footing with the others, by giving their father a share as a stock or root. That the state of the testator’s family may be looked to, in fixing a construction upon his will, see the case of *Lowe*v. *Lord*Huntingtower, 4 Russ. Rep. 432.

Upon the whole, we are of opinion that his Honor was right in overruling the exception to the report of the referee and confirming the report, and that his judgment ought to be affirmed.

Pee Curiam. Judgment affirmed.