#### Sampson Winder *v.*Charles W. Mixon *et al.*

AVhere a testator directed Ms estate to be kept together, until one of his five children married, or should arrive at, *he.*and then the one marrying or arriving at, &c. to receive a share, and the residue to remain undivided for the other children, *“*leaving the manor plantation, at a valuation of *$*4000 for the youngest child that may be then *Jiving”*— it *to as held,*that the testator-contemplated several divisions; that the manor plantation was to be taken by the child who was the youngest at the last division ; and that in the division it was to be. taken as land, and not as personalty.

This bill was originally filed in Bertie. The case made by it was, that *Miles Bayner*died in the year 1819, having executed his will, Avhercby, after providing for his wife, he devised as follows : *u*I give and bequeath *il*the whole of my estate to my five children, *Cynthia, e‘ Mary Jinn, Martha, John*and *William,*to be and re- *“*main as a joint estate, until one of them may marry, *“*or arrive at the age of tAventy-five years, at Avhich “ time that one to take its full share, and the balance to *u*remain undivided for the other children, leaving the “ manor plantation at a valuation of four thousand dol- “ lars, for the youngest child that may he then living ; hut in no case shall any one of my children that has *11w received an equal share, have any part of the undi- *“*vided residue, so long as there shall be a child that *“*has not received an equal share.” That *William,*one of the sons, died before the testator, and the others survived him ; that *Cynthia*had married, and received her share from the executor ; that at her marriage, of the surviving children, *Mary Ann, Martha*and *John,*the last was the youngest; that soon alter he died; that *Mary Ann*liad married the defendant, *Mixon*; and *Martha,*the younger of the two, had married *Augustus*Holly, also a defendant. That the plaintiff was the guardian of *Mary Ann*and *Martha,*and had their joint estate in his hands, and was willing to settle with their respective husbands ; that Mixon, who had married the elder, contended that *Martha*was, in the division, to take the *manor*plantation at a valuation of $4000, and that this valuation should be taken into tboestimate, in dividing the personal fund as wellas the land; thatthe defendant, *Holly,*claimed one half of the personal estate; and insisted that upon the marriage of *Cynthia,*the manor plantation vested in *John,*and that *Martha*was not compelled to take it at >§4000, but was entitled to one half of it, under the will of her father. The bill prayed, that *Mixon*and wife, and *Holly*and wife, might interplead, and the plaintiff be indemnified in his payment to them, hv the decree of the court.

*Hogg,*for the plaintiff,

*Gaston,*for *Mixon*and wife.

*Badger,*for *Holly*and wife.

MeNdersoN, Chief-Justice.

This case comes before us on a bill of interpleader, and depends on the construction of *Miles Kayner’s*will. The first point is, are the words, *“*the youngest child then living,” confined in i’neir operation to the first division, or do they also apply to the other divisions contemplated by the testator ? That he did contemplate other divisions, is evident, as he directs tlie residue of his property to be kept undivided ; and also, that none of his children, who have received an equal share, shall have any part of the nndi-*12*vidfl residue, so long as there is a child, that has noire-ceived a share.*I am of opinion, that the words *“ then*living” *go*through, and operate upon each successive division, and finally vest the manor plantation in the one who is the youngest, at the time of the last division. Nothing personal governed the testator in giving the manor plantation to the *youngest;*as it was quite uncertain who would be the youngest, even when the first-division was to be made. It must have arisen therefore, from a fitness, in his estimation, that the youngest child should have the manor lands *;*or it was better suited to the other provisions of the *will;*either of which motives may he said to be continuing, and operating until the last division. Besides, it was impossible, that the residue of his estate should be kept undivided for his other children, and yet the manor plantation he given, or set apart in severalty, to the youngest child at the time of the first division. And if the words “ *then*living” do not apply to the first division, they must apply to the. others, on to the last division. We therefore think, that the manor plantation vested in *Martha,*who was the youngest child at the marriage of *Mary Jinn,*when she had á right to call for a division ; and which would put an end to the joint possession. By the words of the will, each child took a vested interest in right, but not in severalty. Upon the death of *John,*his estate descended to his heirs : but as they are his sisters, it makes no difference in this case.

The next question is, shall the $4000, the testator’s estimate of the value of the manor plantation, be considered in the division as land or money ? And are the two funds, land and personal estate, to be kept separate an ; distinct in the division ? We think, very clearly, that it is land, and should be thrown into the land division, There is nothing to make it personalty. The valuation of it, made by the testator, could not have that, effect, it was only doing then, what the commissioners would have had to do, upon making partition. If therefore,, there are lands equal in value, and no more, they may be allotted to *Mary Jinn.*If more, the surplus will, *13be equally divided between tbe sisters. If less, then the difference must be made up from the personal property.

The clerk of this court will take an account of the estate, both real and personal, of the defendants, *Mary Jun*and Martha, which was of the estate of their father, *Miles Rayner,*and was, or ought to have been, in the hands of the plaintiff, their guardian, at the time of the marriage of the defendants *Mixon*and *Mary Jinn*; and state an account between him and each of his wards.

Per Curiam. — Decree according.!, v.