This was a bill filed by the complainants against the defendant on the equity side of the court, and on the trial thereof, by consent, was submitted to the decision of the
Walker Lewis, the' testator, made his will in 1854; on the 9tNof May, 1860, he died. The following is a copy of the second item of his will:
“ I will and bequeath to the children of Theophilus Lewis one-eighth part of my whole estate, both real and personal, to have and to hold the same to their own use forever.
“Nevertheless, I direct that there be made use of out of the above named estate bequeathed to my son Theophilus Lewis’s children, a reasonable support for the family while Theophilus and his wife are living. Also», that their children be educated with a common English education. And I also direct that the land in Forsyth county, whereon the family now live, to which I hold a deed from Kellogg, constitute a part of said children’s one-eigth part of my estate. And I further direct that my grand-son, James Walker Lewis, if in life, and if dead, then any of his brothers of lawful age, be authorized to receive said eighth part of my estate, and to receipt my executor, hereinafter named, for the same.”
At the death of testator Walker Lewis, in 1860, Theophilus Lewis and his then wife, Rebecca, had living five children (one, James Walker Lewis, having died in testator’s lifetime). Three of these five survived Theophilus Lewis, and two died before him leaving issue still living. Rebecca, the first wife of Theophilus Lewis, died in Januuary, 1862, and in the March following her death, Theophilus married the second time, taking for wife the mother of complainants, and they are the issue of this last marriage. The plaintiff in error received from the executor a fund about the year 1875, and defendants in error claim an equal participation in this fund with the children of the first marriage. The chancellor decided that the children of Theophilus by the second marriage were entitled to participate in the distribution of the fund with the children by his first marriage, and this decision is assigned as error.
It is a cardinal rule in the construction of wills to seek diligently for the intention of the testator, and give effect to the same as far as it may be consistent with the rules of law. It was the manifest intention of the testator that the
Let the judgment of the court below be reversed.