#### WILLIAM SPIVEY AND OTHERS vs. LEVIN SPIVEY, EXECUTOR &c. AND OTHERS.

A. by his last will gave to each of his children, to wit, Hetty, Louisa, Levin, William, Elizabeth, Susannah, Moses and Calvin, certain ne-groes and other personal property, which he had previously conveyed to them respectively by deed. Louisa, being married, the property so given to her had, before the testator’s death, been sold by execution for the debts of her husband. Hetty died in the life time ot the testator, leaving seven children. In another clause of the will, the testator devises as follows: “My will and desire is, those who have received a part of my estate will account to the balance of my children for what they have received; then it is my will and desire that all the balance of my property not given away shall be equally divided among the heirs of Hetty, Louisa, Levin, William, Elizabeth, Susannah, Moses and Calvin, to them and their heirs foxever.” The husband of Hetty held the property given to his wife in her lifetime as his own. JHeWby the Court, 1st, that Louisa must account in the division directed by the last clause for the property advanced to her by the testator and sold for her husband’s debts — 2ndly. That Hetty’s lih.eirs” or children must, in such division, account for the property received by their mother in hex lifetime, and that the other children must likewise respectively account to Hetty’s children for what they received. Sdly. That - Hetty’s children are entitled to claim'only as a class and not per capi-ta, and therefore take among them but one child’s share.

This was a bill filed at September Term, 1839, of Bertie Court of Equity, by the plaintiffs, who were part of the le*101gatees named in the will of William Spivey, deceased, against Levin Spivey, Executor of the said will, and the other legatees, praying for an account and settlement of the estate and payment of their respective legacies. Answers were filed, and the cause was continued under various orders until Fall Term, 1841, when, having been set for hearing, it was removed by consent of parties to the Supreme Court. The points in controversy between the respective legatees are stated in the opinion delivered in this Court.

B. F. Moore for the plaintiffs.

J. H. Bryan for the defendants.

Gaston, J.

It appears from the pleadings in this] case, that William Spivey, the testator, at the execution of his will and at the time of his death, had seven children, viz. Louisa Hendrickson, Levin Spivey,'WilliamSpivey,. Elizabeth Pruden, Susannah Shark, Moses Spivey and Calvin Spivey and seven grand-children, who were the children of a deceased daughter, Hetty Taylor. He had some time previously to the execution of his will, given by proper and effectual means of conveyance negroes and other personal property to several of his children. The negroes and other personal property, so given to his daughter Hetty, are now held by her late husband as his own, and he disclaims all benefit under any-of the provisions of the will. Those given to his, daughter Louisa were sold for her husband’s debts in the testator’s lifetime.

This bill is filed against the executor for a settlement. All the persons interested under the will are made parties thereunto. And at the hearing questions were raised, upon which our opinion is required.

These are so intimately connected, as to depend upon the construction of the same clauses in the will, which it will, therefore, be proper to consider in connection. In these the testator declares as follows: “ 1st, I give and bequeath unto Hetty Taylor four negroes (naming them) which she has already received, two cows and calves, and one bed to her and her heirs forever; 2nd, I give and bequeath unto my *102daughter Louisa Hendrickson, three negroes ('naming them) feather bed, one cow and calf, which she has already had, to her and her heirs forever; 3rd, I give and bequeath unto Levin Spivey, two negroes (naming them) one cow and calf, one feather bed, which he has already had, to him and his heirs forever; 4th, I give ■ and bequeath unto my daughter Elizabeth Pruden, three negroes (naming them) which she has already had, to her and her heirs forever; 5th, I give and bequeath unto my son William Spivey, one negro boy, George, and one feather bed, which he has already had, to him and his heirs forever.” Then, after some specific devises, follows the 14th: “My will and desire is, those who have received a part of my estate, will account to the balance of my children for what they have received; then it is my Will and desire that all the balance of my property not given away shall be equally divided between the heirs of Hetty Taylor, Louisa Hendrickson, Levin Spivey, William Spivey, Elizabeth Pruden, Susannah Shark, Moses Spivey and Calvin Spivey, to them and their heirs forever.”

The questions raised are, 1 st. Is Louisa Hendrickson to bring into account the negroes and other personal chattels stated in the will to have been received by her, and which have been sold for her husband’s debts, before she can claim a share of this residue? 2nd. Are the children, as “ heirs” of their mother Hetty Taylor, to account in like manner for what their mother has received? And, 3dly. In the division of the residuary estate of the testator, do these children take one share as a class representing their deceased mother, or do they severally share equally with the children of the testator? It seems to us clear beyond dispute that Louisa Hen-drickson must bring into the common stock, in which by the 14th section she is to have a part, the value of the gift or advancement which, in the 2nd section, the testator states she has already had from him. She is one of those who have received a part of his estate, and who by that clause is to receive a share of “ the balance of his property,” when •she “ accounts to the balance of his children for what she has received.’ There is no doubt that the testator intended that the part of his estate which had been given to his daughter *103Hetty, should also be brought into the account. As to that the will does not operate as a gift, but as a confirmation of a preceding gift, declared to have been made; and the 14th clause embraces all who have thus received, and of course all that has been so received. It is to be "taken into account for the purpose of a distribution, and therefore the value thereof is to be brought into the common stock by some or other of those between whom that stock is to be apportioned. Among these is a class of individuals, whom the testator designates as the “ heirs of Hetty Taylor.” It is in that character that he constituted them the objects of his bounty. It is as representing their deceased mother that he gives to them a part of the “balance of his property not given away;” and if an account is to be taken- of the value of what Hetty Taylor has already received, it must be for the purpose of affecting the share which they are to have of this “ balance.”

The expression in the 14th clause “to account to the balance of my children” must be so extended by construction as to embrace the children of the testator’s deceased child. If they are to account for the value of their mother’s advancement to the “children ” of the testator, they are to have the benefit of' the account directed to be made by these children. In other words, the accounts must be mutual between those who are to divide the common-fund. And these views, as we think, are conclusive to shew that the division is to be so made as to give unto them a share as a class. They are as a class to deduct the value of the advancements made to their mother in anticipation of her filial portion. Each of the testator’s children is also to deduct, as preparatory to a division with them as a class and with each other, the part of the filial portion which he or she has received in anticipation — and when this is done there is to be an equal division between the respective parties accounting and accounted to for advancements. Although therefore the last words of the 14th clause, taken per se, import an equality of division per capita, yet, taken in connection with the context, they must be understood as directing an equality of division, in which the heirs of Hetty Taylor are to be regarded as an unit. They are to account *104an<^ accoUQled with as representing a child; they are liable been advanced and entitled to have the benefit in account of the parts of the portions which other children have received, and then are to receive as much in addition out of the residue as will give to them a full child’s portion.

Per Curiam, Decree acccordingl y.