#### W. R. MITCHELL v. MRS. IDA PARKS et al.

(Filed 24 December, 1920.)

Wills — Devise—Estates—Per Capita — Intent.

Nothing- appearing in the will to tbe contrary, a devise to testator’s wife of one-third of his lands for life, and at her death, “all of this property shall go to the heirs of N.,” and to “the bodily heirs of J.,” carries the land to the “heirs of N.,” and the “bodily heirs of J.,” upon the termination of the life estate devised to the wife, per capita and not per stirpes; and this interpretation is especially applicable when construing the will as a whole, and in its connected parts, the language of the testator manifestly imports this intent.

Appeal by defendant from McElroy, J., at Spring Term, 1920, of Stokes.

Special proceedings for partition among tbe parties of a tract of 162% acres, wbicb was allotted, under tbe will of Rolley Brim to Katharine Brim, tbe widow of Rolley Brim, and tbe rights of tbe parties depend upon tbe construction of item 2 of bis will, wbicb, with some other sections, is as follows:

“Item 2. I give and bequeath to my wife two good beds and one cow. . . . Also I bequeath to her one-third of all my real estate, including my homestead, after all my debts are paid, during her widowhood. At my widow’s death all this property shall go to tbe heirs of Nancy Ann Mitchell (dec.), wife of Jerry Mitchell, and to tbe bodily heirs of Jemima Edna Boaze, tbe wife of Abraham Boaze.

“Item 4. I give and bequeath to the heirs of my daughter Nancy Ann Mitchell, now (dec.) wife of Jerry Mitchell, one-half of the remainder of my estate to hold forever.

“Item 5. I give and bequeath to the heirs of Jemima Edna Boaze (wife of Abraham Boaze) the remainder of my estate to hold forever.

“Item 6. I devise that the heirs above named under my said will shall not have the right to sell or convey any real property conveyed under my said will within a period of twenty years after my death. After the period of the said twenty years, they may sell or convey the same at will.

“Item 7. If any of the above named heirs should die (within the said period of twenty years) without issue of them of their own body, all the rights and heirship shall cease as to the real property of my estate.”

■ The court held, and-so adjudged, that under item 2 of the will the division must be made per stirpes and not per capita. Defendants appealed.

W. R. Badgeit and N. 0. Petree for plaintiffs.

J. D. Humphries, Sams & Sams, and McMichael, Johnson & Haclcler for defendants.

*635WaleeR, J.,

after stating tbe case: Tbe question before us calls for a construction of item 2 of tbe will, and its meaning must be determined by a consideration of tbe entire instrument in order to ascertain wbat was tbe intention of tbe testator. It is generally beld tbat a devise or bequest to tbe children of two or more persons, whether expressed as to tbe children of A. and B., or to tbe children of A. and tbe children of B., or to other relatives of different persons, usually means tbat such children or relatives shall take per capita and not per stirpes, unless it is apparent from tbe will tbat tbe testator intended them to take per stirpes. But a devise or bequest to tbe heirs of several persons will usually go per stirpes. 40 Cyc., 1495. Tbe text is sustained by tbe authorities cited in tbe note. Alder v. Beall, 24 Md., 123 (11 Gill & Johnson); Bassett v. Granger, 14 Md., 348; Preston v. Brandt, 96 Mo., 552; Guild v. Allen, 28 R. I., 430; Ross v. Kiger, 42 W. Va., 402-412. It was beld below in Alder v. Beall, supra, a case very much like ours, tbat, under a devise and bequest in these words, “Tbe residue of my estate, real and personal, to be equally divided between tbe children of my sister, Anna Latimer, and their heirs forever, and tbe children of my sister, Penelope Beall, and their heirs forever,” tbe personal estate of tbe testator should be divided among tbe legatees per stirpes, giving half to tbe children of each sister, and this was af&rmed by tbe appellate Court. Dyer v. Dyer, 1 Minvale, 414. It is said in Schouler on Wills, 1 vol., sec. 537, tbat tbe use of tbe words “heirs” or “bodily heirs” or “heirs and assigns,” and such like expressions, signify, at least prima facie, tbat tbe gift was to take effect per stirpes and not per capita. And this distinguishes tbe case at bar from those relied on by tbe counsel in bis learned argument before us where tbe expression was “to children,” or “to children to be equally divided between them,” or “to children naming them,” as in Culp v. Lee, 109 N. C., 675; In re Brogden (at this term). Tbe cases we have cited, taken at random from those in other jurisdictions, are fully supported by our own decisions, such as Lowe v. Carter, 55 N. C., 377, where tbe provision was, “It is my desire tbat tbe personal property belonging to my estate be sold, and tbe proceeds of tbe said sale be equally divided between tbe bodily beirs of my three daughters, viz. Elizabeth Bussell, Sarah Carter, and Catharine King,” this Court beld tbat tbe division should be per stirpes, which strongly supports our view; and in Gilliam v. Underwood, 56 N. C., 100, the testator, in tbe fourth item of bis will, directed as follows: “After settling up all of my just claims, if anything remains it shall be equally divided between my daughter Lucy, my son John’s children, and my son Berry Underwood,” beld tbe division should be per stirpes. Tbe words were, in Lockhart v. Lockhart, 56 N. C., 205: “It is my will, after paying my just debts, tbat all my property of every kind and description, not disposed of in *636the above items of this will, be equally divided between the children of my deceased son, Jno. J. Lockhart, and my sons Benjamin F. Lockhart and Joseph G-. Lockhart,” and the Court held that the division was per stirpes, and that the children of John J. Lockhart, deceased, took as a class and not per capita. See, also, Bivins v. Phifer, 47 N. C., 436; Henderson v. Womack, 41 N. C., 437; Martin v. Gould, 17 N. C., 305; Spivey v. Spivey, 37 N. C., 100; Lee v. Baird, 132 N. C., 766; Roper v. Roper, 58 N. C., 16; Burgin v. Patton, ibid., 425. The case last cited closely resembles this one in its facts. Our case, we think, is stronger for a per stirpes division than any of those we have cited.

It will be observed that throughout the will the testator uses the word “heirs” to describe those who shall take his estate, and in the seventh item he provides that if any of “the aboye named heirs” should die “within the said period of twenty years without issue of their own body, all the rights and heirship shall cease as to the real property.” He evidently intended not a single class taking among themselves, but those who should take by classes or families in the quality or character of heirs; and, besides, in items four and five he actually divides the estate into halves, one of which should go to Nancy’s children and the other to Jemima’s, which, of course, is a division per stirpes. This tends to show that he was of the opinion that in item 2 he had used words sufficient to create a division per stirpes, though his language is somewhat obscure, or less clear and definite than it is in items 4 and 5. He meant that it should be divided in the same way both as to the 162-acre tract and the remainder of his estate. This, of course, is said regardless of the great weight of authority as to how such language should be interpreted, it being per stirpes.

We are, therefore, satisfied that we have reached the right conclusion as to his “true intent and meaning,” and we accordingly affirm the judgment.

Affirmed.