#### *Thomas Collier and others*vs. *Eleanor Collier and others.*

Testator bequeathed to his deceased “ son John’s children ” a negro; to his deceased “son, William’s children” another negro; to his “daughter Margaret,” and to each of his other four children, naming them, certain negroes; and, “ tenthly, all the rest of my estate not yet disposed of, I give to be equally divided among' my above named *heirsHeld,*that, under the tenth clause, the legatees took *per stirpes*and not *per capita;*that is to say, that “John’s children” took, between them, one share, ‘William’s children,’ between them, one share, and the five children of testator each one share.

*Before*Dunkin, Ch., *at Orangeburg.*

William Collier, who died in January, 1849, by his last will and testament, bearing date the 10th March, 1846, devised and bequeathed as follows:

“ First. I give to my son John’s children, a negro map named Jack. Secondly, I give to my son William’s children, a negro man named Israel. Thirdly, I give to my daughter Margaret, a negro woman named Harriet, and her children. Fourthly, I give to my daughter Sophia, two negroes, Selina and Alfred. Fifthly, I give to my son Thomas, two negroes, Job and Edward. Sixthly, I give to my son George, two negroes, Ned and Sophia Ann. Seventhly, I give to my daughter Nelly, a negro woman named Hager, and her children, and a negro girl named Rosanna; but in the event should my daughter Nelly die, leaving a child or children, in that case, it is my will, that the said negroes go to her child or children ; but should she die before her husband David, it is my will that one-half the said negroes *556go to the said David; but should the said David die before my daughter Nelly, then it is my will that none of the said negroes shall go to any of the heirs of the said David, but it is my will, that the negroes after the death of my daughter Nelly, come back to my above named heirs. Eighthly, I give to my wife, Eleanor, three negroes, Moriah, Stephen and Csesar, also one horse, named Jim, and a Dearbon wagon, and as much household furniture as she may think necessary for her use, to be only during her life, after death, it is my will, that the property I give my wife be equally divided among all my above named heirs. Ninthly, I give to my grandson Oliver, one bed and furniture. Tenthly, all the rest of my estate not yet disposed of, I give to be equally divided among all my above named heirs.”

William Collier left surviving him, his widow, his five children, Margaret, Sophia, Thomas, George and Nelly, named in his will; five grand-children, namely, J. D. W. Collier, Lewis P. Collier, Francis C. Collier, Mary A. Collier and William O. Collier, children of his deceased son, William Collier; and five other grand-children, namely, Mary Weathers, Susannah Moorer, S. W. M. Collier, Oliver D. Collier, and Albert G; Collier, children of his deceased son John Collier.

The only question was as to the proportion in which the parties took the property, a tract of land, and about eighteen slaves, which passed under the 10th clause of the will.

Dttnkin, Ch. The only question is as to the proportion, in which “the above named heirs” shall take. The context of the will seems to confine the term to the children and grandchildren of the testator, and not to include his widow. The principle of the case cannot well be distinguished from that involved in *Campbell*vs. *Wiggins,*(Rice’s Eq. 10.) The authority of that case is much shaken by the decision of the Court of Errors, on the same point, in *Lemacks*vs. Glover, (1 Rich. Eq. 141.) Under these circumstances, it seems proper, that the doctrine should be reviewed; and I recommend that this case be carried up for that purpose. At present, I am bound by the *557authority of *Campbell*vs. *Wiggins,*and must decree, that the children of John and the children of William, take *per capita,*with the children of the testator. It is ordered, that the writ of partition issue to divide the estate accordingly.

The complainants appealed, on the ground,

That his Honor should have decreed that the children of John and the children of William take *per*stirpes, and not *per cap-ita,*with the children of the testator.

*Munro,*for appellants.

*Ellis,*contra.

Wakdlaw, Ch.,

delivered the opinion of the Court.

It is the opinion oí this Court, that this case must he determined on the authority of the case of *Templeton*vs. *Walker,*and we refer to that case for the reasoning and authority by which our general conclusion is attained. The words of gift are here somewhat different, and it has been argued that the testator, by directing that his estate shall ‘be *equally*divided among *all*his above named heirs,’ has manifested his intention, that the distribution of his estate shall be per *capita*among all who bring themselves within the scope of the term ‘ heirs and that this case is within the exception to the general rule. But it seems to us, that upon the whole will, and particularly by the manner and amount of the several primary gifts to his ‘son John’s children,’ to his ‘ son William’s children,’ to his ‘ daughter Margaret,’ his ‘ daughter Sophia ’ and to his other children, and by the phrase ‘ above named heirs,’ the testator signifies his purpose, that his ‘ son John’s children ’ shall be one of his heirs, his ‘ son William’s children ’ shall be one of his heirs, and each of his own children one of his heirs ; and that the words of equality are satisfied by equal distribution amongst those of the same degree, according to the statute. The testator’s ‘ grand-son, Oliver,’ is represented to be a son of John, and will it be urged that testator intended Oliver to take two full, equal shares ?

The appeal presents no question as to the right of the widow, *558Eleanor, to a share of the residue of the estate, and this Court has not considered that matter.

It is ordered and decreed, that a writ of partition issue to divide the residue of the testator, William Collier’s estate, among his children and grand-children, *per stirpes;*and the circuit decree is modified accordingly.

O’Neall, Evans, Wardlaw, Frost, Withers and Whit-ner, JJ., and Dunkin, Ch., concurred.

*Decree modified.*