
    SARAH B. COAKLEY and others against HENDERSON L. DANIEL and others.
    
    Where a testator evinced, by the context of his will, a clear intention to divide an estate equally between two of his sons, and a daughter and her children, the following devise to wit, “all the property to be divided between S and A and B, share and share alike,' — to A and B and their heirs and assigns as gifts — to S as a loan for the benefit of her and her children,” was Held to mean a limitation to S, for her life, remainder to her children, as well those in being, as those that might be bom thereafter.
    Causis removed from the Court of Equity of Wake County.
    This was a petition for the sale of land for partition. The The plaintiffs, William A. Coakley and his wife Sarah 13. Coakley, set forth in their petition that the latter was the daughter of Zadoc Daniel, who devised to her and her two brothers, Henderson and Thomas, the land in question as tenants in common in fee simple, to take effect and be enjoyed alter the death of their mother, Mrs. Martha Daniel; that she had lately died, and that before her death, Thomas, one of the joint legatees above mentioned, died intestate, without ever having married, and without leaving issue; that the plaintiff, Sarah and the other sisters and brothers of the said Thomas, of whom there are ten in all, are entitled, as heirs at law, to his third part of the land in question. Henderson Daniel, and the rest of the children and heirs at law of Zadoc Daniel, as also the infant children of Mrs. Coakley, are made defendants. Several of the defendants answered, and judgment pro oonfesso was taken as to the others. The heirs at law of Zadoc Daniel insisted that the share of Mrs. Coakley is only a life estate to her during her life, and that afterwards descends to them as the heirs of the said Zadock, the reversion not having been disposed of by the said will. The children of Mrs. Coakley, by their guardian ad litem, also answered, insisting that one third of the land in question was devised by the will of Zadoc Daniel to their mother for her life, and after her death, to them in remainder.
    The portions of the will of the said Zadoc, upon which, these controversies arise, are as follows :
    After providing for the children of a former marriage, and for his existing ■wife, by giving her a considerable number of personal chattels, and a life estate in the land in question, the will proceeds:
    “The residue of my property to be sold, and divided between my three youngest children, (the issue of the second marriage,) viz: Sarah B. Coakley, Henderson L. Daniel and Thomas P. Daniel, in the following manner, to wit: having advanced to Henderson L. Daniel one hundred dollars, to Thomas P. Daniel thirty dollars, and I have also loaned to my daughter, Sarah B. Coakley, seventy dollars, Thomas P. Daniel to receive as a gift seventy dollars, and Sarah B. Coakley to receive thirty dollars as a loan, and the residue, if any, to be equally divided among the three, to Henderson and Thomas, as gifts, and to Sarah, as a loan.” * * *
    “In case my wife should not marry, at her death, all the property to be divided between Sarah B. Coakley, Henderson L. Daniel and Thomas P. Daniel, share and share alike — to Henderson and Thomas and their heirs as gifts — to Sarah B. Coakley, as a loan, for the benefit of her and her children.”
    The cause was set for hearing upon the bill, .answers, former orders and exhibit, and sent to this Court by consent. ■
    
      Rogers and Howie, for the plaintiffs.
    
      H. G. Ilaywoocl, for the defendants.
   Battle, J.

No person who reads the will of the testator can, for a moment, doubt that his intention was to give what he called the balance of his pi’operty to be equally divided between his two sons, Henderson and Thomas, and his daughter, Sarah B. Coakley, and her children; the two sons, taking a third part, each, and the daughter, and her children, taking the remaining third part. Ilis desire for such an equal partition, was so strong, that in one part of his will, he directed that one of his sons and his daughter should each be paid sums sufficient to make up one hundred dollars, the amount which he had advanced in money to the other son. The only question, then, is, whether that intention, in favor of the daughter, and her children, is expressed in terms sufficiently explicit to enable the Court to give it effect. The language in which the residue of the testator’s property is given to the three children, is in one clause of the will- “ to bo equally divided between the three, to Henderson and Thomas as gifts, and to Sarah as a loan.” In another clause, where he provides for a division, after the deatli of his wife, the testator expresses himself thus: “all the property to be divided between Sarah B. Coakley, Henderson L. Daniel and Thomas P. Daniel, share and share alike, to Henderson and Thomas, and their heirs and assigns, as gifts, to Sarah B. Coakley, as a loan, for the benefit of her and her children.” The counsel for Mrs. Coakley and her children, contend that by a fair construction of the language contained in these clauses, she took an absolute interest in the property, to be held in trust for the benefit of herself and children, born, or to be born; or, that she and her children, then born, took an absolute interest in the property; or, that she took it for life, with remainder to the children which she then had or might afterwards have. The counsel for the other parties contends, on the contrary, that she took a life estate only for tins benefit of herself and her chiidren, and that the remainder in the property is undisposed of by the will, and must be distributed accordingly among the heirs at law and next of kin of the testator.

It is not very easy to conceive what precise idea the testator attached to the word “loan.” It is very certain that he did not intend a mere bailment; because he uses it in connection with the thirty dollars which his daughter was to receive to make her advancement in monej^ equal to what he had given to one of her brothers. He speaks, also, in two separate clauses, of an equal division of the property between her and her brothers, and yet, nothing could be more unequal if she, or she and her children, were to be mere bailees for life of one third of the property, and her brothers were to take, each, his share, absolutely. Besides, the “loan” is not confined in express words to a life estate, but it is to her indefinitely. ¥e must, then, seek for another meaning of the term “loan,” and we are satisfied that the testator intended to use it in a sense opposed to the absolute interest which he gives to his sons.— In other words, he meant that she should not take it to be disposed of absolutely at her pleasure, but that her interest in it was to be limited to her for life, and then it was to bo for the benefit of her children. It will be noticed that the devise and bequest is not to her and her children, which, as she had children at the time of her father’s death, would have given the property to her and them, as tenants in common, according to the case of Moore v. Leach, 3 Jones’ Rep. 88, but it is to her “for the benefit of her and her children.” The clause is to be construed like those which were the subject of decision in the case of Bridges v. Wilkins, 3 Jones’ Eq. 342, and Chesnut v. Meares, ibid 416. The last was the case of a trust, but we held that for the purpose of carrying out the manifest intent of the settler, we wore at liberty to put the same construction upon it, as we would upon a like limitation in a will. It has been suggested, that the cases of Moore v. Leach and Bridges v. Wilkins, were opposed to each other, because one of the sisters of the testator, in the latter case, had a child living at his death, and yet, we held that she took a life estate, only, in the property given, with a remainder to all her children, as a class. But, there is this manifest difference between the two cases, that in the former, the devise is to one woman only, and her children, she, at the time, being a married woman, and having children, while in the latter, the bequest was to all the testator’s sisters and their children, most of whom were then unmarried, and without children. In the case of the unmarried sisters, the intention of the testator, in favor of any children which they might have, could only be carried out by giving the sisters, estates for life, with remainders to their children respectively as a class, which would, of course, embrace all they might have during life. As the married sister was embraced in the same clause, and as no distinction whatever was indicated in the will between her, and the others, the same construction was applied to her also. The cases of Crawford v. Trotter, 4 Madd, Rep. 362, and Morse v. Morse, 2 Sim. 485, referred to in Chesnut v. Meares, show clearly, that when the intention of a testator, or settler of a trust requires it, the children will not take with their mother, but in remainder after her.

We admit that the language of the testator, in the will under consideration, is untechnical, and of doubtful import, hut where we discover a clear intention in him to make an equal provision out of certain property for two of his sons and his daughter and her family, we feel bound to put a construction on it (even though it may seem somewhat forced) which will effectuate that intention.

Per Curiam. The plaintiff may have a decree in accordance with the principles herein declared.  