Opinion
(December Term, 1832.)
In a gift by will to a child and grandchildren, "equally to be divided," each of the latter take equally with the former, unless a different intention is inferred from other parts of the will.
THIS bill was filed by the executor of Daniel Gould, Sr., to have a construction put upon the will of his testator. The will, after giving all his estate to his wife for life, proceeded thus: "After her death it is my desire that all my estate, both real and personal, shall be sold at twelve months credit, and when the money is collected (306) for the land the average value of 100 acres to be given to my son Daniel in order to make him compensation for 100 acres of land which I gave to my son Malachi Gould. All the rest of the money that is left to be equally divided between my son Daniel and my three grandsons, to wit, etc., (naming them), to them and their heirs forever." The defendants were the testator's son Daniel and his grandsons mentioned in the will who were the sons of Malachi. The only question was whether the residue should be divided between them equally or whether one-half should be given to Daniel and the other to the sons of Malachi.
Mendenhall for plaintiff.
No counsel for defendants.
Probably upon the authorities the construction of the residuary clause, standing by itself, is that the grandsons do not take as a class, but each of the three named take an equal share with the uncle. But what is doubtful here is cleared up by the clause immediately preceding, which gives out of the aggregate fund before the division, when the money for the land shall be collected, the average price of 100 acres to Daniel, the son, "in order to make him compensation for 100 acres which I gave to my son Malachi." This shows that the testator meant to deal equally between his two sons, and to make the children of his deceased one stand in their father's stead, and that the grandsons take their share as grandsons. Upon the whole will, therefore, it must be declared that Daniel, the son of the testator, is entitled to one-half the residue, and the three grandsons to the other half, to be equally divided between them, as they shall come of age. And the costs of this suit must be paid out of the fund in the hands of the executor.
PER CURIAM. Decree accordingly.
Cited: Harris v. Philpot, 40 N.C. 329; Henderson v. Womack, 41 N.C. 440; Bivens v. Phifer, 47 N.C. 439; Cheeves v. Bell, 54 N.C. 237; Burgin v. Patton, 58 N.C. 427; Lee v. Baird, 132 N.C. 766; Mitchell v. Parks, 180 N.C. 636.
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