A bequeathed two negro slaves by name to his widow during life; and in a subsequent clause of his will he bequeathed "the negroes therein mentioned, Pat., King. etc. (naming them, but omitting the names of the two given to his widow during life), to five of his children," and adding that "the above that are not heretofore given away shall be equally divided among his said children." The negroes in the first clause are included in the second clause of the will and after the death of the widow go to the five children — two of the children having died intestate before a distribution of the negroes was made, the next of kin cannot have a decree for distribution of their shares of the said negroes, against the administrator de bonis non cum testamento annexo of the testator until the representatives of the deceased children are made parties.
From Halifax.
BY THE COURT.
We are of opinion that the negro slaves mentioned in the first clause of the will, after the death of the widow, belonged to the children named in the second clause; but that the representatives of Polly Branch and Rebecca Branch must be made parties before complainants can have a decree for a distributive share of their estate.
Cited: Martin v. McBryde, 38 N.C. 533; Coppersmith v. Wilson, 104 N.C. 32.