It being conceded that the petitioner is entitled to a partition of the estate described, the only question is, what is the proportion to which he is entitled. This depends upon the true construction of the last will of Eliphalet Slack, deceased. By his will, duly proved, after a devise of the estate in question to his wife, for her life, he proceeds as follows : ££ I give and devise unto the legal heirs of my late brother Samuel Slack, deceased, their heirs and assigns, my brick dwelling-house,” &c. [as set forth in the statement of facts.] It ap pears that at the time of the decease of the testator, when the devise would take effect, the heirs of Samuel Slack, who had .ong previously deceased, consisted of six children living, and eleven children of a deceased daughter, Lydia Dag*453gett, of whom the petitioner is one, and three children of a deceased son, Lewis Slack.

There seems to be a slight discrepancy in different parts of the statement of facts. In one part, it is stated that a daughter of Samuel Slack, Betsey McDonald, was living at the decease of the testator ; in the latter part, containing an enumeration of the heirs of Samuel at the decease of Eliphalet, this daughter, Betsey McDonald, is not named. It is further stated that she is supposed to be dead without issue. As those who were heirs of Samuel, at the time of the decease of the testator, took vested remainders, the estate vested in Mrs. McDonald, if she was then living, and, on her decease, would vest in her heirs. But, as the petitioner is the child of a deceased sister of Mrs. McDonald, and would be one of her heirs, by right of representation, I shall consider the question as if she was dead at the decease of the testator, and did not take a share.

There were, then, twenty heirs of Samuel Slack, six children, three grandchildren, children of his deceased son, Lewis, and eleven grandchildren, children of Mrs. Daggett, a deceased daughter, of whom the petitioner is one. If these heirs can take equally, the petitioner is entitled to the one twentieth which he claims; but if he and his brothers and sisters can take only by right of representation the one eighth part which their mother would have taken, he is entitled to one eleventh of one eighth, equal to one 88th part. The question then is, whether these heirs shall take per capita or per stirpes. And the court are of opinion, that, according to the established rule of law, a devise to “ heirs,” whether it be to one’s own heirs, or to the heirs of a third person, designates not only the persons who are to take, but also the manner and proportions in which they are to take; and that, when there are no words to control the presumption of the will of the testator, the law presumes his intention to be, that they shall take as heirs would take by the rules of descent. Therefore, in the present case, where there are no such words, the true construction of the will is, that the grandchildren take per stirpes, and not per capita; and therefore that the petitioner is entitled to one eighty eighth part only of the devised estate *4541 Roper on Leg. (1st Amer. ed.) 126. 2 Jarman on Wills, 46 Such presumption, however, will be easily controlled, by any words in the will, indicating a different intention of the testa - tor; as if, after a devise to “ heirs,” it be added, “ in equal shares,” or “ share and share alike,” or “ to them and each of them,” or “equally to be divided,” or any equivalent words, intimating an equal division, then they will take per capita, each in his own right. But when there are no such words, the presumption is, that the testator referred to the familiar law of descents and distributions, to regulate the distribution of his bequest. [See Tillinghast v. Cook, 9 Met. 143.]