Where a bequest was made, to the children of a brother and sister of the testator, to which is added, "that is, on the supposition, that my brother is dead; but if he is alive at the time of my death, then he is to receive one-half of my estate,; it was Held, that no question as to whether the estate was to be divided, according to heads or stocks could arise, for that the brother took one-half of the estate, and his children nothing.
BATTLE, J.
We have no hesitation in saying that the construction of the will in question, contended for by the defendants is correct. Had the latter part of the clause, which relates to the supposition of the death of the testator's brother John, been omitted, then his nine children would have taken equally per capita with the five children of the testator's deceased sister, according to the well known rule applicable to such bequeaths. See Bryant v. Scott, 21 N.C. 155; Harrell v. Davenport, 58 N.C. 4; Roper v. Roper, Ibid., 16. But the reference by the testator to his brother John, and saying that if he were alive he should receive one-half of the estate himself, is, we think, a sufficient indication of intention that the divisions should be per stirpes, so that if John had been dead, his children would have taken only one-half of the estate, to be equally divided between them, leaving the other half to be equally divided between the children of the deceased sister. See Bivens v. Phifer, and the cases therein referred to, 47, N.C. 436. However that may be, we are satisfied that as John was alive, he took all that was intended for him or his family, which excludes his children, and leaves one-half of the legacy for the children of the testator's deceased (306) sister, Mary Woodward. A degree may be drawn in accordance with this opinion.
PER CURIAM. Decree accordingly.