
    JAMES WALLER Ex’r &c. v. WILLIAM FORSYTHE Ex’r. &c.
    Where a testator gave land and slaves to his daughter Nancy Waller for life, and then “to be equally divided between the children of the said Nancy Waller and my sous William and John,” — Eeld, that at. the death of Nancy the property was to be divided per capita between William, John and the children of Naucy.
    Bill for an account and settlement of an estate &c., filed to Fall Term 1860 of the Court of Equity for Granville, and at Fall Term 1867 transmitted upon the pleadings to this Court.
    The only question made was upon the construction of a clause in the will of the testator of the defendant, which was as follows: “I give and bequeath to my beloved son William one dollar; to my son James’ heirs one dollar; to my son Samuel one dollar; to my son John one dollar; to my son Thomas one dollar; to my son Philip one dollar; to my daughter Nancy Waller, three negroes Tony, Gillis, and Horace, and eighty acres of land, it being my part of Aaron Oalcey’s hundred acres in or under the will of Joseph Oalrey deceased, father of the said Aaron, if she plentifully support her mother Ferebee my beloved wife, which I leave in and under her care, in good diet, lodging and apparel during her natural life or widowhood, and then the property, at the death of my beloved wife and the said Nancy Waller, or intermarriage', to he equally divided between the children of the said Nancy Waller and my son William, and John:'
    
    Edwards, for the complainants.
    The division is per capita, between William, John, and children of Nancy. Burgin v. Pcdton, 5 Jon. Eq , 425, and Harris v. Philpot, 5 Ire. Eq., 134.
    
      Phillips & Battle, co.dra.
    
    The division is per capita, between the children of all three, Nancy, William and John. Adams v. Adams, 2 Jon. Eq., 215.
   Pearson, O. J.

The division must be per capita. Each of the children of Nancy take a share equal to the shares of John and William, the sons of the testator. This is the general rule, which has been acted upon by the courts, and in our case there is nothing special to take it out of the general rule.

There will be a decree according to this opinion; costs to be paid out of the fund.

Per Curiam.

Decree accordingly.  