#### JOHN A. PLESS *against*JAMES A. COBLE AND OTHERS.

Where a testator, in a residuary clause, gave the surplus of his property to a son and daughter, in these words: “ and my desire is, that such surplus be equally divided and paid over to my son A. and my daughter M.; my will and desire is, that my daughter M’s equal part, in this last devise, to, her bodily heirs, equally to be divided between them,” it was *Held*that the daughter took an estate for life, with remainder to her children.

Cause removed from the Court of Equity of Stauly County,

Peter Pless died in the county of Stanly, in the year 1858, leaving a last will and testament which was admitted to probate at May term, 1858, of Stanly county court, and the plaintiff, John A. Pless, qualified as executor of the same. — ■ This will, after various specific devises and bequests, contains a residuary clause in these words: “My will and desire is, that all the residue of my estate, if any, after taking out the devises and legacies above mentioned, shall be sold, and the debts owing to me collected, and if there should be any surplus over and above the payment of debts, expenses and legacies, that such surplus shall be equally divided and paid over to my son Adam, and my daughter Malinda, my will and desire is, that my daughter Malinda’s- equal part in this last de-visero her bodily heirs equally to be divided between them, and said legacies to be paid over to the above mentioned within two years from my decease to them, and each and every'of them, their executors, administrators and assigns, absolutely forever.” Malinda, the daughter mentioned in this will, is now the wife of the defendant, Coble, and the bill is filed by the executor for a construction of this residuary clausk

JBusbee, for the plaintiff.

Jones, for the defendant.

Battle, J.

The residuary clause of the will, as to the construction of which, we are called upon to give an opinion, is expressed in such vague and indistinct terms, that it is difficult to ascertain the purpose which the testator had in view. *232The fund is directed to be divided equally between his son Adam and his daughter, Malinda, and then lie says “my will and desire is, that my daughter Malinda’s equal part in this last devise to her bodily heirs, equally to be divided between them,” <fec. Does the testator mean by this that his daughter’s half of the surplus, shall not be enjoyed by her at all, but shall be equally divided between her bodily heirs, or does he intend that she shall have it for life, with remainder to them ? and, if so, will the rule in Shelly’s case apply so as to give her the absolute interest? The language is undoubtedly obscure, but we cannot believe that the testator intended to deprive his daughter of what he calls her “equal part;” if •so, why did he direct an equal division between her and his son Adam, and call one share her part? If he intended it for her “ bodily heirs,” he would have been more likely to have said that the fund should be divided into two equal parts, of which h'is son Adam should have one, and his daughter Malinda’s bodily heirs or children, should have the other. Such language would have been clear and explicit, and would have left no doubt of the testator’s meaning to exclude his daughter, in favor of her children.

Our opinion, then is, that the daughter was intended to take, and does take, one half of the surplus mentioned in the residuary clause of the testator’s will. The question, then arises, whether she tabes it absolutely, under the operation of the rule in Shelley’s case, or only for life, with remainder to her chil-' dren; and, upon that question, the latter is, we think, the proper one. The provision that the fund is to go to the daughter’s “ bodily heirs *equally to T>e divided between*them,” prevents the application of the rule in Shelley’s case, as is now well settled by authority. See *Swain*v. *Roscoe,*3 Ired. Rep. 200, in which the previous case of *Bradley*v. Jones, 2 Ired. Eq. 245, is referred to and overruled. See also, *Jacobs*v. Amyatt, 4 Bro. Ch. Cas. 542, and 2 Rop. on Leg. 354-355.

A decree may be drawn, in which it will be declared that the defendant, James A. Coble, and his wife, Malinda, will be entitled to one half of the surplus of the money mentioned in *233the residuary clause of the testator’s will, during the life of the said Malinda, and after her death, the same must be equally divided between all the children which she now has, or may ¡hereafter have.

Per Gotham, Decree accordingly.