#### Leroy Stow v. Levi Ward et. al.

From Lincoln.

Devise “ that the residue of my estate, Teal and personal, be equally divided between the heirs of my brother *John Ford,*(he being noticed as living,) the heirs of my sister *Nancy Stow,*the heirs of my sister *Sully*Ward, and nephew *Levi Ward.”*

Held, that the *real estate*must-be divided *per stirpes,*and that *Levi Ward*takes one fourth under the devise to him byname, anda share of the fourth devised to the *heirs of Sally Ward.*

Devise “ to the heirs of A," they take in the same proportion as if the estate had descended to them from A.

*Nathan Ford*by bis will, devised as followctb, *“1*give to my brother *John*Ford, two hundred acres of land,” and (after several specific bequests) “ *it is my will, and I do allow, that alt the remaining part of my estate, both real and personal, be equally divided amongst the heirs of my brother John Ford, the heirs of my sister Nancy Stow, the heirs of my sister Sally Ward deceased, and tie* phew Levi Ward.” Levi Ward,*was the son of *Sally Ward.*

This case, which is reported 3 *Hawks*604, came before the Court at this term, upon the return of the partition, made according to the interlocutory decree of this Court, at June Term, 1825.

The case was not again argued, and the opinion of a majority of the Court was delivered by

RenbersoN, Judge :

When I take a review of the construction, which I once thought, I was bound by precedents, to give this will — precedents which in reality neither bore, or professed to bear upon it, so far as regards the real estate, and the struggles which I made in my own mind, to get rid of them, it appears that I must then have labored under something like a delusion 5 for it was never for a single moment doubted, as far as I can collect from authorities, that where persons come to an estate as heirs., *68whether by descent as having been in by their ancestor, or by purchase as a new acquisition, under the description of heirs, that they take *per stirpes*and not *per capita ;*^ey tft^e ¡t In a representative and collective character, and as to others, are considered as an unit, however they may subdivide and parcel out the property among themselves; they take not individually, but collectively, not separately, but conjunctively. A, has a daughter, and two grand-daughters, daughters of a deceased daughter, his lands descend one half to his daughter, and the other half to his ,two grand-daughters. So if the limitation had been to the heirs of A, making them take as purchasers, they would take the, estate in the same proportions, that is *per stirpes,*and not *per capita ;*in the case of the descent, the lands of which A died seized, descend to his daughter and grand-daughters, as persons designated by the canpn of descent, under the description of heirs, or rather *as*heirs; in the latter case the same canons of descent, point out the purchasers, and they take the same porportions as if the lands had descended from A. It is a fallacy to say, that the law designates the persons, and the will points out a separate, equal, and individual interest in each — the will points to them as a unit, and tlie canons of descent does the same. I have nota doubt but the presiding Judge was right when he said, the devisor intended a division by stocks or families; if so, he could not have used a word in our language more appropriate, for the reasons given in the case of *Croom*v. *Herring,*4 *Hawks*393.

Suppose one of the brothers had died after the date of the will and before the testator, leaving ten children, the surviving brother or sister of the testator, would have to share equally with all these children, and get, instead of a third or a fourth, only a twenty fifth part, or less if there were more children. The testator having in his will given a legacy to his brother, thereby noticing that he is alive, the word heirs, is to be construed heirs ap*69parent, noFonly as to his heirs, but as to all where the parents are ali\e, that is, where it is necessary.

I must ronfeas, I feel some difficulty as to the. double portion of *Levi Ward,*but the strong inclination of my mind is, and sol must decide, that he is entitled to one fourth, under the description given by name, and to one half of one fourth under that “ of heirs of *Sally Ward.”*

The former decree must be set aside, and the decree of the Superior Court reversed ; for by that, *Levi Ward*was allowed only half of one third, w hereas he is entitled to three eighths, to-wit, one fourth, and one half of one fourth. Let it be decreed, that the estate be divided into four equal parts, and that one fourth be allotted to the heirs of *John Ford,*one fourth to the heirs of *Nancy Stow,*one. fourth to the heirs of *Sally Ward,*and one fourth to *Levi Ward.*

The authorities which perplexed us in this case, relate entirely to personal property.

Tayior, Chief-Justice, dissented.

Decree reversed,