Harper v. Sudderth, 62 N.C. 279, 1 Phil. Eq. 279 (1867)

June 1867 · Supreme Court of North Carolina

62 N.C. 279, 1 Phil. Eq. 279

JAMES HARPER, Ext’r. of HENRY SUMPTER v. JOHN SUDDERTH and others.

The legatees, under a clause of a will giving property to “the heirs and legal representatives of my deceased sister,” &c., (followed by clauses giving respectively the children of a deceased brother “ an equal share,” and the son of a nephew “a share,”) are the children of the deceased sisters, and take pm- stirpes.

Bill for the construction of a will, filled to Fall Term, 1864, ot the Court of Equity for Caldwell, and afterwards transferred, by consent, to this court.

The testator died without issue. The will, after giving his estate to his wife for life, proceeds: “ 3d. My will and desire is, that after the death of my beloved wife, my property shall be disposed of in the following manner, to wit, I give and bequeath to the heirs and legal representatives of my deceased sisters, Patty Sudderth, Betty Ramsey and Polly Loving; 4th. My will and desire is, that my brother Thomas Sumpter’s children are to have an equal share of my estate, except, &c.; 5th. My will and desire is, Henry Sumpter Taylor, son of Henry Taylor, shall have an equal share.”

Moore, for the complainants.

Folk, tor the defendants.

Reade, J.

The only question involved is whether the legatees in the third clause of the will take per stirpes or per capita. We think they take per stirpes. We lay much stress upon the fact that the legatees, nieces and nephews, are designated as the “representatives” of their deceased parent. It is apparent also from the fourth and fifth clauses that the testator meant that the representatives of his brothers and sisters (by which he meant not their administrators, but their children,) should take the share which their parent would have taken. In the fourth clause he directs that the children of his brother Thomas are to have “ an equal share;” and in the fifth clause he directs that the son of a nephew shall have “ an equal share of his estate.” From these facts we think it appears that the testator meant that the children should represent their parent, and take such share as the parent would have taken if living and there had been an intestacy.

There may be a decree in conformity with .this opinion. The costs to be paid out of the estate.

Per Curiam.

Decree accordingly.