#### WILLIAM GILLIAM *and*another, *executors, against*LITTLEBERRY UNDERWOOD *and others.*

The general rule is, that where several persons are named in a legacy with the children of another, they will all take; *per*capita, an equal share ; but where these children are several times mentioned as a class in other clauses of the same will, and equality requires that they should be so treated in the clause in question, they will be decreed to take *per stirpes.*

Cause removed from the Court of Equity of Northampton County.

The questions made in this case arise upon the following will of "William Underwood, viz :

“ 1st. I give unto my daughter Lucy one tract of land thatl bought of Beithen Sykes, and also one hundred dollars, to be paid out of my estate.

2nd. I give to my daughter Leesy one tract of land that I bought of James Wright.

3rd. I give to my son Berry Underwood three hundred and twenty dollars.

*1014th. I give to my son John Underwood’s children three hundred and twenty dollars. The land I bought from Charity Mann to be sold. The negro man Joe is to have support out of my estate as long as he shall live. * * After settling up all of my just claims, if anything remains it shall be equally divided between my daughter Lucy, my son John’s children, and my son Berry Underwood.”

The executor filed a bill in this Court, alleging that a controversy had arisen between the legatees therein mentioned as to the proper construction of the residuary clause, the children of John insisting on taking an equal share each with Lucy and Berry, and they contending that they were only entitled to one share (a third) between them, and praying the direction of the Court as to his duty in the premises, viz., whether he should distribute the residue *per stirpes or per capita.*

The cause was set down for hearing on the bill, answers and exhibits, and sent to this Court.

Barnes, for plaintiffs.

No counsel appeared for defendants in this^Court.

Battle, J.

The only question which the pleadings present arises upon the construction of the residuary clause in the will of the plaintiffs’ testator. The clause is in these words, “ After s'ettling up all my j ust claims, if anything remains it shall be equally divided between my daughter, Lucy my son John’s children, and my son Berry Underwood.”

The question is, whether John’s children take *per capita*an equal share of the residue with Lucy and Berry, or whether they are to be taken together as a class, and the fund divided *per stirpes*among the legatees. This question has been several times before the Court upon similar bequests, and it is settled that the general rule requires a division *per*capita, unless there be something in the will indicative of an intention that the legatees are to take by families, in which case the division must *bo per stirpes.*See the recent case of *Bivens*v. Phifer, 2 Jones’ Rep. 436, where all the others are re*102ferred to. In tbe will before us, we think there is a strong indication that the testator intended that the children of his deceased son John should stand in his stead, and take only what he would have done had he been living. In the first three items *of*his will, he gives to his daughter Lucy a tract of land and one hundred dollars; to his daughter Leesy a tract of land; to his son Berry three hundred and twenty dollars ; and then., in the fourth item, he gives to his son John’s children three hundred and twenty dollars. Thus we see that iu the only other clause where John’s children are mentioned they are referred to as a class, and, as such, have a legacy of an equal amount with the testator’s living son, Berry. The two daughters, Lucy and Leesy, seem to be provided for mainly with land. 'Whether the value of the tract given to Lucy was inferior to that of her sister, we are not informed, and we do not know, therefore, whether the money given to her was intended to make her share of the estate equal with, or more than, that of her sister. Nor are we informed how the money bequeathed to Berry compares in value with the, property given to each of his sisters ; but we do learn from the will itself, that what he is to get, besides his share of the residue, is precisely the same with that of his deceased brother’s children. We conclude from this, that his father intended him to have an equal share with them of the residue, his sister Lucy taking the remaining share.

Pee CueiaM. Decree accordingly.