In a bequest of a residue of personalty, "to be equally divided" among the following persons, viz.: "E. B., M. P., J. V., and the children which my daughter T. had by J. S., and the children of my deceased son J., and the children of my son W." who, it appeared from the will, was then alive, it was held, that the division among the legatees must be per capita, and not per stripes. ( Ward v. Stone, 17 N.C. 509, approved.)
RUFFIN, C. J.
The question made in this case has not been argued, but we do not postpone the decision on that account, as we think no argument could raise a doubt upon it. All the cases upon the subject were looked into and much considered by the Court in the recent case of Ward v. Stowe, 2 Dev. Eq. Ca., 509, and they clearly establish the correctness of the decree made by his Honor. The only difficulty in that case arose out of the word heirs, there used as the description of the donees of a residue, in which real and personal estates were complicated. We were finally of opinion that in that will children or, at any rate, issue were meant by it; and it then followed, of course, upon the authorities, as we thought, that the different families of children did not take collectively or by representation, but severally, and as individuals who came within the general description. Several Chancellors have, in cases like this of gifts to the testator's children and to the children of deceased children, expressed the apprehension that, in distributing per capita, they did not follow the intention; but they have never been able to find a ground for holding otherwise, and have thought themselves bound to that construction, although it might not be according to the intention, rather than adopt the opposite one, which obviously does violence to the words of the testator. The intention that the grandchildren should take per stirpes is conjectured from the reasonableness of it, as applied to the state of most families. But when the gift is made under circumstances which exclude all reference (157) to the statute of distribution, that conjecture must be given up; and when to that is added a direction for an equal division among all the donees, no court could feel safe in making an unequal division.
The present case has both of these distinguishing circumstances. One set of the grandchildren are the children of a son of the testator, who was then living, and, indeed, was the executor of the will. That brings it to the very point on which the leading case on this subject, Blackler v. Webb, 2 Pr. Wms., 383, was decided. That was a bequest of a personal residue equally to several of the testator's children by name, and to the children of a deceased child, and the children of a living child, without any words of division. At first, Lord King inclined that the grandchildren took per stirpes; but at length he was obliged to decree otherwise because the mother of some of the children was living, which showed that the testator could not have looked to a legal distribution in which grandchildren represent their deceased parents. That case is mentioned in all the subsequent ones, and has never been questioned. The rule, indeed, is not confined to cases in which a parent of one set of the donees is alive, but extends to legacies to "the children" of deceased parents, as to A. and B., and the "children" of C., deceased, and the "children" of D., deceased, "equally to be divided between them." Northey v. Strange, 1 Pr. Wms., 340; Butter v. Stratton, 3 Bro. Ch. Ca., 367; Lady Lincoln v. Pelham, 10 Ves., 166; Davenport v. Hanbury, 3 Ves., 257. The difficulty, in cases of this kind, has always arisen on the description being by some term as "heirs" or "representatives," or "next of kin" or the like, which was thought to denote that the legatee was to make claim by representation, in which case his share ought to be that of a representative. We had a case somewhat of that nature before us at the present term in Elliott v. Elliott, on the word "distributee" in a family settlement. But a tenancy in common between "children" and "grandchildren," who are to take equally, is necessarily a gift to each individual, as such, and the distribution must be per capita. Whatever may be the wish of testators in particular cases, the judicial construction of such bequests is so thoroughly (158) settled that it cannot be disregarded.
The interlocutory decree was therefore proper, and it must be so certified to the Court of Equity of Hertford.
PER CURIAM. Judgment affirmed.
Cited: Hobbs v. Craige, 23 N.C. 338; Hill v. Spruill, 39 N.C. 246; Roper v. Roper, 58 N.C. 17; Burgin v. Patton, id., 427; Chambers v. Reid, 59 N.C. 305; Howell v. Tyler, 91 N.C. 213; Culp v. Lee, 109 N.C. 677.