Newbern,
November Term, 1780.
PETITION. The following case was reserved for the opinion of the Court, viz.
*53 “ John Speir of Pitt county, in his last will and testament, a “ mong other things, bequeathed as follows, to wit:
“ Item, I give and bequeath all the rest of my negroes and their in “ crease, to be equally divided among my children, the survivor or survivors of them, and their heirs forever.
“ The testator died, leaving his wife and three children, two of “ the children, viz. William and Elizabeth, died intants and un " der age.
“ The question is, whether the mother (Penelope, now wife of “ James Gorham) upon the death of the said two children, was “ entitled to any, and if any, what part of the said children’s share of the legacy abovementioned?
“ We agree to submit the above question to the decision of the “court, and that they may thereupon make such decree upon the “ above petition, as to them shall seem just.
“ James Iredell, for the plaintiff.
“ William Hooper, for the defendant.
“ Newbern, November 22, 1780.”
Whereupon the Court,
Ashe, J. Spencer, J. and Williams, J.
did determine, that upon the death of the first child, the mother was entitled to an equal share of the said estate of such child, with the two surviving children: and that upon the death of the other child who is deceased, she was entitled to an equal share of said estate of such deceased child, with the surviving one; and that a division of said estate be made accordingly.