#### THOMAS J. SHINN, *Adm'r.*cum. tes. an. *against*THOMAS MOTLEY *and others*

(construction or a will.)

■Where, in the distribution of a fund, two daughters are mentioned as taking equally with their brothers and sisters, and then is added, that these shares are not to go to them, but to their, children, it was *Held*that it was intended that they, the children, should take *per stirpes,*that is, each class the share at first designated as their mothers’.

The general rule is, that where there is a bequest to children, and no life-estate is interposed, and the period of division is not postponed, only the children born at the testator’s death can take. J3ut this rule is varied where it is manifestly the intention of the testator that all the children that may be bom of a person, as well as those already born, were intended *491to take. And it is the duty of an executor, in paying over the shares in such case, to take bond, with security, for the payment of the shares of children that may subsequently come into being.

Cause removed from the Court of Equity of Cabarrus county.

This bill was filed by the administrator, with the will annexed, of Robert Motley, stating that difficulties had arisen amóngst those entitled under this will, and conflicting claims set up by them, so that he thought it would not be safe for him to pay the legacies bequeathed therein, without the protection of this Court; he therefore asks to be advised upon the several points stated below, which arise upon tire following clause of the will, viz: “ It is my will that all the remainder of my jrroperty, which I possess at my death, shall, after giving lawful notice, be put to public sale and sold to the highest bidder, and the proceeds arising from such sale, and all my cash and notes, and effects of every kind, which I have not willed to my children, to bo equally divided between my sons, Thomas Motley, John Motley, Rufus Motley, and my daughters, Martha Rhinehart, Kiziah Sossaman, Leah Love, Sally Plott, Elizabeth Biggors, Rowena Moses, Lavina Faggart and Nancy Furr, all married women. But the amount, in this division, which would come to the shares of my daughters, Martha Rhinehart, Kiziah Sossaman and Nancy Furr, is not to go to them, but to all their children, which now are, or hereafter may be; the grand-childreu of them three daughters shall equally inherit it, their mothers’shares.”

Martha Rhinehart had six children living at the death of her father.

Kiziah Sossaman had four children by a former marriage, and two by her marriage with her present husband, all living at the testator’s death.

Nancy Furr, at the time of her father’s death; had no child, but bad one in less than ten months afterwards, which is since dead, and letters of administration have been taken on its estate by its father, "Wilson Furr. No other children have been born to either of these three daughters of the testator, and *492neither of them has, or has had, a grand-child. Upon this premise, the executor asks:

1st. Whether, on account of the obscurity and apparent contradiction, any of the offspring of the daughters Martha, Kiziah and Nancy, can take any thing?

2nd. Should they take, will it b *oper capita or per stirpes t*

3rd. If it be considered that the children of these females take, will it bo limited to such as were in being at the time of the testator’s death, or will children thereafter born come in for a share with the others?

4th. Did a share vest in the child of Nancy Eurr, and if *so,*what becomes of such share?

5th. In case it be considered that the children of these females, born hereafter, take, how is the distribution to be made amongst the living children, and how is the contingency to be provided for ?

The cause was set for hearing on the bill, answer and exhibit, and sent to this Court.

*id. Barringer,*for plaintiff.

Ashe, for defendants.

Battle, J.

The questions which have been raised upon the construction of the fourth clause of the will of the plaintiff’s testator, and which are now presented for our determination, are, mostly, easy of solution. We will consider them in the order in which they are presented by the bill.

1. There can be no doubt that the children of the testator’s three daughters, Martha Rhinehart, Kisiali Sossaman and Nancy Eurr, take under the will. The word “grand-children” was used, either by an obvious mistake for the children of his daughters, for he immediately adds, that they *“*shall equally inherit their mother’s share,” or was an awkward expression to signify that they wore his grand-children, as being the children of his daughters. The meaning of the testator is plain, and cannot be defeated by an obvious mistake or by an awkward expression.

2. The children certainly take *per*stirpes, or by families. *493The daughters were first mentioned as if they were to take, each a share, and then the shares which were set apart for them, are given to their respective children. See *Lockhart*v. *Lockhart,*ante 205, and other cases there referred to.

3. The general rule is, that where there is a bequest to children, and there is no life-estate given in the mean time, and the time for a division is not postponed to a certain period after the death of the testator, only the children born at the testator’s death can take. But if the intent of the testator is clear that he wishes his bounty to be enjoyed by children bom after his death, they too shall be included in the bequest. Thus, in the ease of *Shull*v. Johnson, 2 Jones’ Eq. Rep. 202, where a testator gave a legacy to his nephews and nieces, that might “be living at or after” his decease, we held that the nephews and nieces born after the testator’s death, were entitled to take equally with those who were born before. That decision was made at Morgan ton, and we cited no authority in support of it. We are now able to refer to the cases of *Defliss*v. *Goldsmidt,*1 Mer. Rep. 417, *Scott*v. *Lord Scarborough,*1 Beavan’s Rep. 154, (17 Eng. Con. Ch. Rep. 154,) which fully sustain it.

4. The child of Nancy Furr, which was born within ten months after the death of the testator, is to be considered as having been then *in mntre sa mere,*and of course entitled as a child born at that time. But in the present case, the child would take under the limitation to afterborn children. The interest which she took was clearly vested, and, upon her death, went to her administrator.

5. The executor has a right, and it is his duty, in paying over to the children who are now entitled, or to their guardian, if they be minors, their respective shares, to take a bond with good and sufficient security, for refunding what may be necessary to pay the portion of such children as may be hereafter born. See *Shull*v. *Johnson,*above referred to.

A decree may be drawn, declaring the rights of the parties according to the principles herein-before set forth.

Pee CuexaM, Decree according!}.