#### SAMUEL ROGERS AND WIFE *against*JAMES BRICKHOUSE *and others.*

Where a testator, 'at the time of the making of his will, which was in 1852, owned a small piece dfland called the “ Godwin tract,” to which he *after-wards*added, by purchase, two adjoining tracts, (a part of one of which ■latter, had been purchased from Godwin,) and the whole had been cultivated as one farm, it was *Held*that the whole passed under the denomination of “the Godwin tract"

A devise of land to be sold ancl the proceeds divided among the testator’s *“*heirs-at-law,” there being no-context showing that the words were not used in their technical sense, was *Held*to require a distribution *per stirpes.*And it was *Held*further, that where personal property was embraced in the same clause with land, and there was no reason why a different rale of 'Construction should be applied, the distribution, as to it, should be made in like manner.

By .a will made in 1852, a slave born before the making of the testator’s will, -was *Held*not to pass under the term “ increase.”

'Cause removed from the Court ©f Equity of Martin county.

Matthew Brickliouse made his will in 1852, and died in 1357. The plaintiff, Samuel Rogers, and the defendant James Brickliouse, were appointed executors in the said will, and they both were qualified as such. The bill is filed by Rogers and his wife against James Brickliouse and the several legatees- under the will, praying that the said Janies may account for the amount of the estate that came into his hands, and the several legacies may be paid over under a decree of this Court, and the said Samuel for his protection and indemnity as executor and that for his co-executor, asks the advice and direction of the Court upon several questions growing out of the construction of the will.

B.y the 3rd clause of the said will, the testator devises as follows:, ‘‘To niy daughter, Joanna Brickliouse (who is the wife of the defendant, Jas. Brickliouse,) and her heirs forever, all my lands except the Peter place — -the Godwin tract and the great swamp tract; which several pieces I devise to be sold by my executors, and the moneys arising from said sale, to be equally divided among my lieirs-at-law.” At the mak*302ing of the will, the testator owned a piece of land, containing eight and a half acres, which had formerly belonged to one Emily Godwin, and, hence, was called the “ Godwin land/ Afterwards, in 1855, the testator bought of one- Saunderson a tract of about 200 acres, and afterwards, (in the year 1857,) he bought of one Benjamin B. Brickhonse a tract of about sixty acres, one half of which had once belonged to Emily Godwin. These two last mentioned tracts adjoined each other, and were only separated from the tract by a public road, and the three tracts were occupied and cultivated as one tract with the same gang of hands, under the same superintendence.

James Brickhonse and his wife claimed that all the said land, except the 8-|- acres, passed to her, whereas, the several parties defendant coming in under the description of heirs-at-law, claim that the whole of these three tracts fall under the denomination of the “ Godwin land,” and must be sold for the benefit of the fund in which they are interested. The plaintiff prays the advice of the Court on this point.

A further question arises under this clause, which is : whether the money, arising from the sale of tins excepted land, is to be distributed *per stirpes or per capita.*

Also in the &th clause, the testator devises and bequeaths the *residue of his estate to he sold and the proceeds equally dimi-ded among Ms*heirs-at-law, and the same, question, as to the mode of distribution, is made as to both the real property and personal property contained in this clause.

By the 5th clause of the will, the testator bequeaths as follows : “ I give and bequeath to my graudaughter, Ann Ga-boon, a negro girl, named Hasty, and her increase.” At the time of the making of the will, Hasty had one child, about 18 months old, which was not named in the will, and has had no other before or since. The bill states that Ann Cahoora claims this child of Hasty under the above bequest, and that the others insist that it must be sold under the said ninth clause of the will, and he asks that this conflict may resolved by the Court so as not to prejudice the executors.

By the 8th clause, the testator devises as- follows: “ I give *303and bequeath to my daughter, Joanna Brickhouse, 100 barrels of corn, 6000 pounds of fodder, and all my crop of potatoes.” The defendant, James, for his wife, claimed the crop of potatoes, which was growing on the land at the testator’s death, to which the others objected, and the plaintiff asks to be informed as to this point.

The other exception involves only matters of fact, and is sufficiently apparent from the opinion of the Court.

*Rodman,*for the plaintiff.

*Winston, Jr.,*for the defendant.

Battle, J.

The bill is filed for the purpose of obtaining a construction of the will of the testator, Matthew Brickhouse. Several questions are raised, which we will proceed to consider and dispose of, in the order in which they are presented.

1. The first question arises on the third clause of the will, and the facts in relation to it, are as follows : When the will was executed in September, 1852, the testator owned eight and a half acres of land, which were called and known as the Godwin tract, from the fact, that they had once formed a part of a tract of land belonging to a person of that name. He afterwards purchased, at different times, lands lying adjacent to the eight and a half acres, a portion of which had belonged to Godwin, and another of about thirty acres had been owned by a different person. All these lands were cultivated by the testator, after his purchase of them, as one farm. The question is, are they excluded from the devise to the testator’s daughter, Joanna, by being included in the exception of the “ Godwin tract,” and we are clearly of opinion that they are. The will was executed after the passage of the act of 1844, (see Eevised Code, ch. 119, sec. 6,) and must be construed, as to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, which was in October, 1857. Thus speaking and taking effect, it is settled that the Godwin tract will embrace what was known and cultivated as such, *304though composed of different parcels of land, bought at different times; see *Bradshaw*v. *Ellis,*2 Dev. and Bat. Eq. Rep. 20, and the cases referred to in the note to the second edition. These lands, though excepted out of the devise to the testator’s daughter, Joanna, are directed to be sold by the executors and the proceeds to be equally divided between the tes-tato’rs heirs-at-law, which is in effect a devise to them, and brings the case directly within the operation of the statute above referred to.

2. Another question is raised upon this third clause as well as upon the ninth clause, as to how the division is to be made, whether *per 'simpes*or *per capita. We*think the former mode is clearly indicated. As there is nothing in the will to show that the terms, “ heirs-at.-law,” are not used in that technical sense, we are bound to take them in that sense, and to direct the distribution of the proceeds of the lands, as the lands themselves would have descended by law, to the heirs *per stirpes.*The personal property, if any be embraced in the 9th clause, must be governed by the same rule, it being given in the same terms which were applied to the proceeds of the real estate, and we being unable to discover any purpose in the will to make a different distribution of it.

3d. The late case of *Williamson*v. Williamson, 4 Jones’ Eq. 281, S. C. 5 Jones’ Eq. 142, shows, beyond all doubt, that the testator’s grandaughter, Ann Oohoon, does not take the child of the negro girl, Ilasty, which was bom before the will was made.

4. Eor the reason that the will, by force of the act of 1844, to which reference has heretofore been made, speaks and takes effect, as at the time of the death of the testator, we think his daughter, Joanna, was entitled to the crop of potatoes then growing.

5. The testator’s son-in-law, James Brickhouse, alleges in his answer, that by an agreement with the testator, he was to have one half of the crop for his services, and in consequence thereof, he sets up a claim to that, effect, as to all the crops of various kinds growing on the testator’s land the_year in which *305he died. There is no proof of such agreement, and we must declare that it did not exist. The consequence is, that as one of the executors, he must account for all the crops which were on the testator’s land at the time of his death, except those portions of them which were expressly bequeathed to his wife, to wit: one hundred barrels of corn, six thousand pounds of fodder, and all the crop of potatoes. lie will be entitled to keep all the produce of his own land for that year. A decree may be drawn upon the principles declared in this opinion.

IER CueiaM, Decree accordingly.