The only question which the pleadings present arises upon the construction of the residuary clause in the will of the plaintiffs’ testator. The clause is in these words, “ After s'ettling up all my j ust claims, if anything remains it shall be equally divided between my daughter, Lucy my son John’s children, and my son Berry Underwood.”
The question is, whether John’s children take per capita an equal share of the residue with Lucy and Berry, or whether they are to be taken together as a class, and the fund divided per stirpes among the legatees. This question has been several times before the Court upon similar bequests, and it is settled that the general rule requires a division per capita, unless there be something in the will indicative of an intention that the legatees are to take by families, in which case the division must bo per stirpes. See the recent case of Bivens v. Phifer, 2 Jones’ Rep. 436, where all the others are re*102ferred to. In tbe will before us, we think there is a strong indication that the testator intended that the children of his deceased son John should stand in his stead, and take only what he would have done had he been living. In the first three items of his will, he gives to his daughter Lucy a tract of land and one hundred dollars; to his daughter Leesy a tract of land; to his son Berry three hundred and twenty dollars ; and then., in the fourth item, he gives to his son John’s children three hundred and twenty dollars. Thus we see that iu the only other clause where John’s children are mentioned they are referred to as a class, and, as such, have a legacy of an equal amount with the testator’s living son, Berry. The two daughters, Lucy and Leesy, seem to be provided for mainly with land. 'Whether the value of the tract given to Lucy was inferior to that of her sister, we are not informed, and we do not know, therefore, whether the money given to her was intended to make her share of the estate equal with, or more than, that of her sister. Nor are we informed how the money bequeathed to Berry compares in value with the, property given to each of his sisters ; but we do learn from the will itself, that what he is to get, besides his share of the residue, is precisely the same with that of his deceased brother’s children. We conclude from this, that his father intended him to have an equal share with them of the residue, his sister Lucy taking the remaining share.
Pee CueiaM. Decree accordingly.