#### CHARLES L. HINTON EX’OR *&c. v.*ROBERT LEWIS AND AL.

A testator bequeathed as follows: *“ Thirdly,*I desire that all the rest of my negroes may be divided into two equal parts. One half of said negroes I give , and bequeath to my grand children,” A., B. and C., “ to be divided between them as follows,” viz: “ to be equally divided between” the said A., B. and C. “ *Fourthly,*should either of the said” A:, B. and C., “ die before arriving at the age oftwenty one years, unmarried and without leaving a child or children, living at his or her death, I desire that the share of the one so dying shall go and belong to the survivor or survivors of them, and should all” the said A., B. and C. “ die before arriving at the age of twenty one years, unmarried and w ithont leaving a child or children or the issue of such living at the death of the survivor of them, I then leave the half of the ne-groes, hereby bequeathed to them, to such person or persons as may be my next of ltin, according to the Statute of distributions,” A. attained the age' oftwenty and married, and then died in the lifetime of the testator, le avihg-no issue,

Jleld, that the share bequeathed to A. did not survive to B. and C., but passed and went to the next of bin of the testator.

The case of *Petway*v, *Powell,*2 I)ev- and Bat. Eq. 308, cited and approved.

Cause transmitted *by*consent to the Supreme Court *from*the'Court'ofEquity of Wake County, at'the Spring Terbi .lSsl,

*185The facts of this case are thus stated in the pleadings. David Hinton departed this life in the year 1850, having first made and published his last will and testament, which was duly admitted to probate. In and by his said will he bequeaths and directs, among other things, as follows : “Thirdly ; I desire that all the residue of my negroes may be divided into two equal parts, and in this division I wish my said negroes may be kept in families, as lar as may be practicable. One half of said negroes I give and bequeath to my grandchildren Jane Francis, Robert and John Lewis, to be divided ' between them as follows, viz: In the first place one thousand dollars worth of said negroes or more to be set apart to my grand daughter Jane Francis Lewis, and after they'shall be so set apart the remainder of said negroes to be equally divided between my said grand daughter Jane Francis, and my said grand sons Robert and John Lewis, it being my intention to give my said grand daughter Jane Francis one thousand dollars more in negroes, or more than my said grand-sons Robert and John Le,wis, as she inherits no part of her father’s lands. Fourthly, should either of my said grand children, Jane Francis, Robert or John die before arriving at the age of twenty one years, unmarried and without leaving a child or children living at his or her death, I desire that the share of the one so dying shall go and belong to the survivors or survivor of them, and should all my grand children die, before arriving at the age of twenty one years, unmarried and without leaving a child or children, or the issue of such, living at the death of the survivor of them, I then leave the half of the negroes hereby bequeathed to them, to such person or persons as maybe my next of kin according to the statute of distributions,

Jane Francis, the legatee named, intermarried with. Erw.in, and died, in the lifetime of the testator, after arriving at the age of twenty one years» without leaving any child surviving her.

*186This bill was filed by the executor of David Hinton, praying the advice of the Court as to the proper construction of the will. And the question was, whether the legacy to Jane Frances became vested in the brothers, who survived her, or whether it was a lapsed legacy, so that the property bequeathed went to the next of kin of the said David Hinton.

*H. W. Miller,*for the plaintiff.

*Saunders*and *Rogers,*for the defendants.

Pearson, J.

According to the English authorities, if a legacy be given to A. and B., they are joint tenants, and by the right of survivorship, if A. dies in the life time of the testator, B. takes the whole. But, if it be given to A. •and B., to be *equally divided*between them, they are tenants in common, and there is no right of survivorship; so ■that if A. dies in the life time of the testator, his is a lapsed legacy, and B. has only the one half.

In this case, the testatrix directs a division between the legatees, Jane, Robert and John Lewis, as tenants in com-anon, and he adds a provision for survivorship. This sur-vivorship, however, is not absolute and unqualified, but is to take place only in the event, that one of the three dies before arriving at the age of twenty one, unmarried and without a child living at the time of his or her death.

If Jane had survived the testator, her brothers, Robert and John, would not have been entitled to her share ; because she had arrived at the age of twenty *one,*which event excluded the right of survivorship, as provided for in the will. Allow to them the same right of survivorship, so as to prevent a lapse of the legacy intended for Jane, she •having died in the life time of the testator, they can take nothing under that right, because it was only to have effect in the event of her dying before arriving at the age o* twenty one, which event did not occur; and, therefore, *187the survivorship, provided for in the will, did not arise, and the part intended for her is consequently undisposed of, and passes under the residuary'clause — one third to Charles L. Hinton, one third to Robert and John Lewis, representing their mother; and the other third to the children of Mrs.. Miller.

. It is not necessary to advert to the fact, that Jane nofc only arrived at the age of twenty one, but married; which is another circumstance to exclude survivorship; nor to. the fact, that, in the division, she was to have one thousand dollars more than her brothers. This has no bearing on the question of survivorship.

Our attention was called in the argument to the case of *Petway*v *Powell, 2 Dev.*and Bat. Eq., 308. There, the legacy was given to the children of A. — two would answer this general description as well as three, and the death of one in the life time of the testator would make no difference. The case has no bearing on our question. If a legacy be given to “ the three children of A.,” or “ to Jane, Robert and John Lewis, my grandchildren,” the individuals are identified and “ selected out,” so that they take as individuals, and not as a class.

It may be, that, if the testator had foreseen this result, he would have provided for it. All that we can do is, to construe the will according to the legal import of the words; used.

Per Curiam. Decree accordingly.