There are many cases in our records which may be regarded as holding the rule contended for by the appellees as merely presenting a rebuttable presumption which may be overthrown by a clearly expressed intent which has been permitted to prevail. Roper v. Roper, 58 N.C. 16, 75 Am. Dec. 427; Shull v. Johnson, 55 N.C. 202; Shinn v. Motley, 56 N.C. 490; Pickett v. Southerland, 60 N.C. 615. Cited as contra are Petway v. Powell, 22 N.C. 308; Walker v. Johnston, 70 N.C. 576, 579; Robinson v. McDiarmid, 87 N.C. 455, 461; Wise v. Leonhardt, supra; Sawyer v. Toxey, supra; and many English decisions found in accord.
The words were, in Lockhart v. Lockhart, 56 N.C. 205: "It is my will, after paying my just debts, that all my property of every kind and description, not disposed of in the above items of this will, be equally divided between the children of my deceased son, Jno, J. Lockhart, and my sons Benjamin F. Lockhart and Joseph G. Lockhart," and the Court held that the division was per stirpes, and that the children of John J. Lockhart, deceased, took as a class and not per capita. See, also, Bivins v. Phifer, 47 N.C. 436; Henderson v. Womack, 41 N.C. 437; Martin v. Gould, 17 N.C. 305; Spivey v. Spivey, 37 N.C. 100; Lee v. Baird, 132 N.C. 766; Roper v. Roper, 58 N.C. 16; Burgin v. Patton, ibid., 425. The case last cited closely resembles this one in its facts.