
    
      IN EQUITY.
    Micajah Ricks, and Milberry his wife, Thomas and Teakle Ricks, vs. Pilgrim L. Williams and Wilson Taylor, Executors of Rowland Williams. The same Defendants as Plaintiffs, vs. The same Plaintiffs as Defendants.
    From Nash.
    In a devise of personalty, “to be equally divided between my son P, tny daughters D, C, and E, and the heirs of my daughter P,” held, that the latter take hut one-fifth among them.
    A petition for a rehearing is the proper remedy against an interlocutory decree.
    
      Howland Williams, by his will, after sundry specific legacies, devised all the residue of Isis estate to be sold, ** and the money to he divided equally, between my son Pilgrim L. Williams, and my daughters Diana, Charity and Elizabeth, and the lawful begotten heirs of the body of my daughter Prisálla.”
    
    The Plaintiff Milberry is the daughter, and the Plaintiffs Thomas and Teakle, the grandsons of Priscilla, and claim to have the residue divided into seven equal parts.
    On the Spring Circuit of 1821, his honor Judge Mash by an interlocutory decree, directed tiie residue to be divided according to tiie prayer of the bill. A bill of review, and a petition for a rehearing were filed, and the cause stood in this Court upon the original bill, and tiie hill of review, both having been transferred to this Court,
    This casé was twice argued, viz. at December Term, Í824, and at December Term, 1825, a note of which, the present reporters have been furnished with.
    
      Gaston against tiie decree. — Howland Williams bequeaths as follows : “ 1 leave the rest of my estate to be sold, and the money to be equally divided between my son ^§™n> an<^ my daughters Diana, Charity and Elizabeth, and the lawful begotten heirs of my daughter priscilla.” Priscilla was then dead — had left surviving, and who were living at testator’s death, a daughter, sX.Milberry Picks, and two grandsons, Thomas and Teakle Picks, children of a deceased son.
    The decree ordered a division, per capita, between Pilgrim, IHnaa, Charity, Elizabeth and Milberry, Thomas and Teakle.
    
    it was erroneous :—
    1. if the words “ lawful begotten heirs of my daughter Priscilla,” are sufficiently definite of themselves, without reference to the statute of distributions, to point out tbe objects of testators bounty, they designate her children, and her two grandsons are not embraced within them.
    These words “ heirs of the body,” or “ heirs lawfully begotten of a certain person,” when used as words of purchase, and especially in gifts of chattels, are synonl-mons with “ children.”
    It is so often in dispositions of real property, see Doe deni. Long v. Lardng, (2. Bur. 1106,) and Goodlittle v. Herring, (1 East. 264.)
    Itis i heir established meaning in bequests of personalty. (.Loveday v. Hopkins, Ambler, 27 S — Jacobs v. Amyatl, 4 Ero. 542 — Wilson v. Vansittart, Amb. 562 — 2 Moper on Legacies, 402.)
    On this point also, Í claim the benefit of tbe opinion of a majority of the Court, in Whitehurst v. Pritchard, (l Mur. S85.)
    Where a bequest is made to “children,” grandchil-' dren do not take, unless there be no child, or tbe context shews that the word was designed to have a meaning more, extensive than properly belongs to it. (See Loveday v. Hopkins, Amb. as above — Crookc v. Brooking, 2 Ver. 106 -Peeves v. Brymer, 4 Vcs.jr. 692-1 Bop. on Leg. 106,107.)
    If the word “heirs” be synonymous with next of kin. it does uot, as such, take in the grandchildren.
    
      ím every sense in popular and lega! parlance, a child is nearer of kin than a grandchild. (2 M. Com, COG, 504,5.)
    Grandchildren take as next of kin, by ¡batoje of distribution, only when tliere are no children, '"'hey take, not sm next of Jdn, but by virtueof a capacity bestowed on them, as representing next of kin, whenever there is a child.-— (Toller.')
    
    This view of the case is consistent with, and perhaps demanded, by a numerous class of adjudications which decide, that when a gift is made by words of definite description, such as children of A. B.” the donees take not as representatives, but as designated individuals, as though they had been severally named. (Maekler v. Webb, 2 P. Wms. 383 — Butler v. Stratton, 3. Bro. 3(iT — Wild r. Bradbury, 2. Ver. 705 — Davenport v. ílanbunj, 3 Ves.jr. 259.)
    2. These words “ heirs lawfully begotten of my daughter,” may have been used as indicating “ persons lawfully representing my daughter.” if so, the grandsons take with her daughter — but these take as such representatives, and take one share only.
    The subject matter is personality — therefore, heirs strictly speaking, cannot be meant.
    There is a strong analogy between lineal descendants succeeding to the personalty, and lineal descendants inheriting the land of a deceased ancestor.
    It is our duty to take the word as nearly to its proper sense as it will admit.
    Then it means that class of persons who represent her in succession to personalty — who would succeed to her undisposed money and chattels.
    This is the opinion of a great Judge. (Holloway v. Holloway, 5 Ves.jr. 402.) So have similar words been understood. (Bridge v. Mbott, 3 Bro. 224. Long v. Blackfill} 3 Ves. jr. 486.)
    
      If this be the meaning of these words, then these “ legal representatives” take together an equal share with the persons named.
    The statute of distributions directs an equal division among the children of an intestate, and the legal representatives of a deceased chiI3."*(Toller, & act 1766, ch. 79.)
    The equality of division, is as precisely ordered in this statute, as in the Will 'dhder consideration.
    Had Taylor made no will, the law would have ordered a division nearly in the words, which he has here used.
    Why should the same words used by him, receive a meaning different from that appropriated to them when found in a statute, and deliberately penned.
    Is there less liberality shewn in expounding the words of an illiterate man, when inops concilii than of an Assembly representing the wisdom of the community.
    If “ heirs, &c.” be equivalent to “ lawful representatives,” then they take as representatives what would have been given to her whom they represent.
    There is no more incongruity in these persons taking under the will, as representatives of one to whom nothing had passed, than in children taking, under a statute, (a general will for intestates,) under one to whom nothing had accrued.
    But it is objected, that this construction is forbidden by another class of adjudications, on the words “ relations,” “ kindred,” &c.
    This class of cases has settled, that such vague words shall be limited in their extent by the statute, but the division shall be wholly independent of the statute. (TAo-mas v. Hale, Ca. Tem. Talbot 251 — Greene v. Howard, 1 Tro. 31.)
    These decisions are wrong in principle; the Court in order to expound the will, imply a reference to the sta-tuto of distributions. The construction ought therefore, to have been the same as if this reference was expressly •' * v contained in the will. If the reference had been expressed “according to the statute of distributions” the statute would have explained the equal division, as well as ascertained those between whom it is to be made.
    This is admitted by one of the strongest champions* for this doctrine and most zealous extender of its application, Mr. Justice Butter. (Phillips v. Garth, 3 Bro. 68.)
    But the present question is not affected by those decisions. The words are either definite in themselves, and require no reference to the statute to limit their generality, or they are of the same import with those used in the statute, and in connection with a like context must receive the same interpretation- Justice Butter indeed, thought otherwise, (Phillips v. Garth.') But he was opposed by an authority at least of equal respectability, Ld. Tlmrlow, and acknowledged that lie was violating an authority greater than either of them, plain good sense.
    This view is strengthened by the principle to be extracted from fVythe v. Thurlston, (1 Ves. sen. 3 96) commented on in Davenport v. Ifaiibury, (3 Ves. jun. 259, 260.) Where there is enough on the will to shew that “children,” &c. are used as representatives or substitutes, in common parlance “ heirs,” of their parent, they take in that capacity, and the share which would have been allotted to that parent
    
      Badger, in support of the Decree.---Two questions are made upon the residuary clause in the will. 1. Do the grandchildren of Priscilla, take with her children under the description “ lawfully begotten heirs.” 2. If they fake, in what proportions.
    Court. (After a moments consultation.) It is unne-necessary for you to discuss the first question.
    
      Badger. — it is clear they are entitled per capita, by force of the words “equally to lie divided/’ which are equivalent to “share and share alike,” and importa tenancy in common.
    This has been settled by a series of adjudications, Up0n expressions exactly analogous to those in this will. Where the bequest was “equally to son J. sou P’s children, daughter T. and daughter W!$ children,” it was held that all were entitled equally per capita, as if severally named. (Bladder v. Webb, Z P. Wins. 383.)
    So where the words were “ equally between R. G. J. 8. and the children of M. P.” “ equally between descendants of T. F.” aud among the descendants of T. F. there were children and grandchildren — held all were entitled per capita. {Butler v. Stratton, & Brown C. C. 366.)
    So “ to be divided among next ofkiu share and share alike.” (Philips v. Garth.')
    
    In the last case, there was no difference between Mr. J. Butler and Ld. TJmrlow, as to the proportions in which the grandchildren should take, as seems to be supposed by the Counsel on the other side. Butter thought the grandchildren entitled — the Chancellor inclined that they were not entitled at all; but if entitled, both agreed that upon authority, they should take per capita, though both doubted the original propriety of the decisions.
    This is evident from what fell from Ld. Thnrlow, in Bayner v. Mowbray, (3 Brown, 335.)
    It is in vain, that the Counsel allege these decisions to be wrong in principle. Even if wrong at first, the;/ have fixed the law, and cannot, without great mischief be now overturned. Ld. Thurlow, in the last case, said in reference to these very decisions, “ where once a rule has been laid down, if is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance.”
    And this Court, at the last Term, felt the weight of authority to be so great, that they reluctantly decreed a partition per capita, under a clause in a will, strongly radicating that an equality of division between the stocks .ü* families and not the persons, was designed by the tes-iator. (Sloxve v. Ward, 3 Hawks 604.)
    Taking the words “ lawfully begotten heirs” to be equivalent to “next of kin,” an argument has been drawn from the statute of distributions, here and in England, to shew that the grandchildren can take only in place of their parent and per stirpes. It is supposed that “ next of kin” is used in the statute to signify those nearest of blood, and in equal proximity to the istestate. An examination of the statute will shew this supposition to be unfounded. Our statute (a transcript of the English, with only one or two barely literal variations) recognizes the right of representation as existing by law, and of course referring to the descent of real estate, and does not use the words in question, until it comes to provide for a distribution where there arc no descendants of the intestate. The words are, “ and in case there should be no children, &c.” “then one moiety &c” “the residue of the said estate to be distributed equally to every of the next of kin of the intestate, who are in equal descree, am! to those who legally represent them.” ,
    By adding to the words next of kin, the qualifying expression who are i;i equal degree, it is dear the former words did not of themselves import what is expressed by the latter. The Legislature must have supposed, that in their sense of the words, there might be next of kin, some nearer in blood than others, yet all next of kin. For otherwise, the expression added is without use or meaning, it is mere tautology.
    But if “ next of kin” means those who are themselves nearest of blood, and also those who represent persons deceased, who were nearest of blood, there is a propriety and even necessity, for every word, in order to convey what the Legislature meant.
    Dissect the clause — equally to every of the next of kin.” By ihcae words, brothers and sisters, and the -•Huleen of deceased brothers asid sisters, would all have taken equally per capita. But this was not intended. — • Hence tlie words “ who are in equal degree” were added. Had the clause stopped here, brothers and sisters surviving would have taken, as being the nearest in equal degree, to the exclusion of the children of a deceased brother or sister. But this was not intended, and hence the words “ and to those who legally represent them,” are superadded ; by which the equality of distribution is confined to those who are in equal degree; and the representatives of one who was in equal degree, take his equal share among them.
    Consequently, where in a will the words “ next of kin,” or words of equivalent meaning are used, they point out all who would take under the statute, and i£ the words “ equally” or “ share and share alike” be added, they all take per capita, as they would have done under the statute, had the expression been “equally to every of the next of kin” without the explanatory words. The words designate the persons by reference to the statute, and the will fixes the proportion, which is equal to each by force of the words “ equally to be divided.”
   The Court held this case under advisement until this term, when their opinion was delivered by

Henderson, Judge:

I think in principle, this question was decided at the last term, in the case of Whitfield’s will, (4 Hawks 393,) for if “ heirs,” when applied to personal property, mean those who are called by law to succeed to the dead man_ they bring with them their representative and collective character — and however the property may be divided among themselves, as individuals composing a body, yet as to others, they are an unit, and make but one person, the representative of their ancestor or propositus; and so, whether they take by descent or purchase, it is de-signatio personae, not personarum. I refer to the reasons and authorities in the case of Stowe v. Ward, (ante 67) decided at this term, to support this position throughout; in fact, the cases are, to my mind, precisely alike $ the only difference is, in that case it is real property; in this, it is personal: in either, however, the word “ heir” has the same meaning as to its representative and collective character. 1 am not aware of any authorities, except those cited, and attempted to be disposed of in the case of Whitfield’s will. That this construction meets the Testator’s wishes in this will, I have not a doubt. It is plain from the words, he intended a division by stocks or families — and he could not have used a more appropriate word than “ heirs of my daughter Priscilla,” to call them in as a stock or share. I must again express my regret for the decision in tiie case of White-hurst’s heirs — it cannot be supported.

The decree in this case must be reversed, and an account; taken of the money paid under it — and the property mentioned in the residuary clause of Howland Williams’ will, must he divided into five equal parts — one of which is decreed to each of the children of the testator, to wit, Pilgrim, Diana, Charity and Elizabeth, and one-half of the remaining fifth to Micajah Hicks, and the other half of said fifth, equally between Thomas Micks and Teakle Ricks, and for this purpose, the master will take an account.

There being in this case both bill of review, and a petition to rehear — the bill of review must be dismissed, but without costs — The loose practice in our Courts of Equity rendering it somewhat difficult to ascertain the propriety of using the one or the other — and these proceedings were commenced before the decision in the case of Jones and Zotticoffer, where the matter was very fully discussed and settled.

Decree set aside.  