Harper v. . Sudderth , 62 N.C. 279 ( 1867 )

Reade, J.

The only question involved is whether the legatees in the third clause of the will take per stirpes or per capita. We think they take per stirpes. We lay much stress upon the fact that the legatees, nieces and nephews, are designated as the “representatives” of their deceased parent. It is apparent also from the fourth and fifth clauses that the testator meant that the representatives of his brothers and sisters (by which he meant not their administrators, but their children,) should take the share which their parent would have taken. In the fourth clause he directs that the children of his brother Thomas are to have “ an equal share;” and in the fifth clause he directs that the son of a nephew shall have “ an equal share of his estate.” From these facts we think it appears that the testator meant that the children should represent their parent, and take such share as the parent would have taken if living and there had been an intestacy.

There may be a decree in conformity with .this opinion. The costs to be paid out of the estate.

Per Curiam.

Decree accordingly.