Martin v. . Gould , 17 N.C. 305 ( 1832 )

Probably upon the authorities the construction of the residuary clause, standing by itself, is that the grandsons do not take as a class, but each of the three named take an equal share with the uncle. But what is doubtful here is cleared up by the clause immediately preceding, which gives out of the aggregate fund before the division, when the money for the land shall be collected, the average price of 100 acres to Daniel, the son, "in order to make him compensation for 100 acres which I gave to my son Malachi." This shows that the testator meant to deal equally between his two sons, and to make the children of his deceased one stand in their father's stead, and that the grandsons take their share as grandsons. Upon the whole will, therefore, it must be declared that Daniel, the son of the testator, is entitled to one-half the residue, and the three grandsons to the other half, to be equally divided between them, as they shall come of age. And the costs of this suit must be paid out of the fund in the hands of the executor.

PER CURIAM. Decree accordingly.

Cited: Harris v. Philpot, 40 N.C. 329; Henderson v. Womack, 41 N.C. 440;Bivens v. Phifer, 47 N.C. 439; Cheeves v. Bell, 54 N.C. 237;Burgin v. Patton, 58 N.C. 427; Lee v. Baird, 132 N.C. 766; Mitchell v.Parks, 180 N.C. 636.

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