#### MARGARET RHEW TILLMAN et al. v. LOU BETTIE O’BRIANT et al.

(Filed 7 January, 1942.)

wms § 34c—

An item of a will directing that certain realty be sold “and the proceeds divided equally between” the children of a deceased daughter (seven in number), the only daughter of another deceased daughter by name, and another, who was treated by testator as his foster son, is Held to require the division of the proceeds among the beneficiaries per capita and not per stirpes under the general rule that an equal division among designated legatees means a per capita distribution, unless a contrary intent appear.

Appeal by defendants from Grady, Emergency Judge, at October Term, 1941, of PeesoN.

Civil action for construction of will.

From judgment for plaintiffs, tbe defendants appeal, assigning error.

Graham & Eslcridge for plaintiffs, appellees.

Burns •& Burns for defendants, Lou Bettie O’Briant and Hubert O'Briant, appellants.

Stacy, C. J.

On tbe bearing, tbe question in difference was made to depend on tbe construction of tbe following clause in tbe will of W. D. Yarboro, late of Person County, tbis State:

> “Item 3. I direct tbat my ‘Will Clayton Place’ . . . shall be sold and tbe proceeds divided equally between Maggie Rbew’s children and Lou Bettie O’Briant and Dewey Yarboro.”

Tbe case states tbat Maggie Rbew was a deceased daughter of tbe testator; tbe plaintiffs in interest are her seven children. Lou Bettie O’Briant is tbe only daughter of another deceased daughter of tbe testator; and Dewey Yarboro was treated as bis foster son. Dewey Yarboro has assigned all of bis interest to Lou Bettie O’Briant.

Tbe “Will Clayton Place” has been sold, and tbe question for decision is whether tbe proceeds arising therefrom shall be divided per capita or per stirpes under Item 3 above. Tbe trial court answered per capita, and we approve.

Tbe pertinent authorities are assembled in Burton v. Cahill, 192 N. C., 505, 135 S. E., 332, and Ex parte Brogden, 180 N. C., 157, 104 S. E., 177, and we are content to rest our present decision on what was said in these cases.

Tbe general rule is, tbat an equal division among designated legatees means a per capita distribution, unless a contrary intent appear. Ex *715 parte Brogden, supra; Waller v. Forsythe, 62 N. C., 353; Harris v. Philpot, 40 N. C., 324; and Bryant v. Scott, 21 N. C., 155.

The bequest here is to Maggie Rhew’s seven children and two others, the words “Maggie Rhew’s children” being descriptive of the first seven of the nine named legatees. Ex parte Brogden, supra. This is the meaning usually ascribed to such language, and as said by Clark, C. J., in Leggett v. Simpson, 176 N. C., 3, 96 S. E., 638 : “There is nothing in the will which impairs the usual rule of construction that where a devise is to a class collectively, and not by name to various devisees in the class, all the members of the class take per capita and not per stirpes."

Affirmed.