The bill is'filed for the settlement of the estate of Levin Lane, óf New Hanover county, and the answer of the executor submits an inquiry in reference to two paragraphs of the will, a proper understanding of which is necessary to enable him to malte settlement.
• The paragraphs are the fifth and sixth, and are in these words;
5. I give and bequeath unto my grandchildren, the children of my deceased daughters, Eliza, A-ugusta, Susan and Virginia, all the rest, residue and remainder of ary negroes, to be equally divided between them, share' and share alike, to have and to hold, &c.
6. It is my will that my plantation be sold by my executors, hereinafter mentioned, arid the proceeds of the sale thereof invested for the benefit of my beloved wife, Margaret, during her life ; and, upon her death, that the said proceeds be distributed equally between my children, ■Thomas, Walter and Margaret, and the children of my ■ deceased daughters, Eliza, Augusta, Susan and Virginia, share and share alike. •
The inquiry is, whether, in these paragraphs, the grandchildren take per capita, or per stirpes.
To our minds the words, in themselves, clearly import a purpose to give per capita; and, upon an examination of the entire will', we find nothing to unsettle this mani~. fest import.
Analagous cases were before this Court in Hill vs. Spruill, 4 Ire. Eq., 244, and Harris vs. Philpot, 5 Ire. Eq., 324, in both of which many authorities are cited and reviewed.. They are decisive of the point that, when a »bequest is to grandchildren, or children and grandchildren, “ eó nomine,” with directions that there shall be an equal *86division among them.,, they take j)&r capita, anti not per stirpes. '
The purpose to give te each of the individuals embraced by-the language an equal share, is more clear in the cease before us than ih any of the cited cases examined by me, by the addition ©f the words, share and share alike -; which eannot be satisfied, except by equality,, “per capita.”
The ease of Spivey vs. Spivey, 2 Ire. Eq., 100, does not eonfliet with the current of authorities. That case turned, upon the force of the word “ heirs/ ’ and more especially upon a plain intent to be gathered from the context of tha will, that the heirs spoken .of were, as a class, to account, and be accounted to, for advancements , and that, in the settlement of that estate, they were to be regarded a* aar unit.
The Court, then, is of opinion that the division directed in the fifth paragraph of the will should be equally among the grandchildren, according to their whole number, allotting to each an aliquot part:
And that the division directed in the sixth paragraph should he made upon the same principle among the-‘children . and grandchildren, according to their whole number, allotting to each an aliquot part.
Let a decree be drawn to this effect; the costs te be paid by the executor, out of the estate.