Opinion
(December Term, 1859.)
1. A testator bequeathed slaves to A. "during her life, and at her decease to the lawful heirs of her body, if any such there be, and if none, to return to the lawful heirs of my body," it was Held, that on the death of A. without having had a child, the limitation over was valid.
2. Held, further, that the children of the testator living at his death and the personal representatives of such as died after him were the proper parties to sue.
CAUSE removed from the Court of Equity of NEW HANOVER.
W. A. Wright for plaintiffs.
Person, Strange, and Baker for defendant.
Abraham Newkirk, by his will executed in 1823, bequeathed as follows — that is to say: "I also lend unto my daughter Penny Newkirk, during her natural life, the following negroes, viz., Dolly and Dinah and Dinah's children, viz., John, Bill, Caesar, Guilford, Peyton, and Sam; also one bed and furniture; and at her decease to the lawful heirs of her body, if any such there be; and if none, to return to the lawful heirs of my body, and to be equally divided amongst them."
The testator died in the same year, 1823, and his will was duly (266) admitted to probate..
Penny Newkirk, the legatee above named, intermarried with the defendant Enoch Hawes some time in 1824, and the executor delivered to him all the slaves mentioned in the will. She died in 1859, without leaving any child or children, or the descendants of such, and without ever having had a child born alive. The bill is filed by the surviving children of Abraham Newkirk who were alive at the death of the testator and the representatives of such others as were then alive, but are now dead (excepting Penny, the legatee), to recover the said slaves and their increase, amounting in number to about twenty-three.
The defendant demurred to the bill generally for the want of equity. There was a joinder in demurrer and a removal of the cause to this Court.
Is the limitation over to the heirs of the body of the testator valid, or it is too remote? Is it is not necessary, in order to decide this question, to say whether Penny Newkirk took an estate for life, with a limitation to the heirs of her body as purchasers at her decease, or whether she took the entire estate under the rule in Shelley's case, defeasible at her death, to make room for the limitation over, for, in either view, as she never had a child, the property will pass under the limitation over, provided it be not too remote.
We think the limitation over is valid, because it is so limited that if it takes effect at all it must take effect at her death. The ownership of the property must at the time be absolutely determined one way or the other, consequently it was not "tied up" longer than the law allows. The very learned and able argument filed by Mr. Wright relieves the Court from the necessity of elaborating the subject. We adopt his reasoning to show that the time is fixed, and the limitation over depends upon her having heirs of her body at her decease. "The force of the words at her decease pervades the whole clause and manifestly (267) qualifies both of the limitations. To the lawful heirs of her body, if any such there be. When? Clearly at her decease. And if none such there be. When? Equally clearly at her decease." That is, "To the lawful heirs of her body, if any such there be, at her decease; and if none, to return to the lawful heirs of my body."
Of the many authorities cited by him, Baker v. Pender, 50 N.C. 351, is enough to dispose of the question. It is there said: "We are satisfied that the words at her decease fix the happening of that event as the time at which the limitation over must take effect, if its takes effect at all, and consequently that it is not too remote. At is a more precise word of time than after, and it is settled that after her death is sufficient to restrict the limitation."
We at first inclined to the opinion that the objection for misjoinder of parties in respect to the personal representatives of the four sons who died after the testator was well taken; but upon reflection, we are satisfied that it is untenable, and that at the death of the testator all his children had such an interest under the limitation over as would devolve upon their personal representatives. A contingent remainder, or any such contingent interest in land, is transmissible by descent, and in personality devolves upon the personal representative when the person is certain and the uncertainty rests upon some collateral event. Where the person is uncertain there cannot, as a matter of course, be a descent or devolution. See Fearne; Roper on Leg., 402; 1 Jarman on Wills, 177. The question is narrowed to this: Were the persons to the limitation over is given certain? Nemo est hares viventis. But as the limitation is to the heirs of the body of the testator, he was dead when it took effect, and so the maxim has no application. Heirs of the body include children and the issue or descendants of any child who is dead. Thompson v. Mitchell, 49 N.C. 441. In our case, as all of the children were living at the death of the testator, they were heirs of his body, and their identity was fixed with as much certainty as if each child had (268) been named — Penny, the daughter to whom the property is given in the first instance, being excepted by necessary implication because of the primary gift to her.
If the limitation over had been "to the heirs of my body then living," there would have been uncertainty in respect to the persons, and the descendants of a child dying after the testator would have answered the description at the happening of the event and become entitled to the share of their parent if living would have taken, to the exclusion of the personal representatives; but the limitation over is not thus restricted. The persons to whom it is given were certain at the death of the testator, and the uncertainty rested upon a collateral event irrespective of their being alive when the event happened, consequently the interest of the sons who died devolved on their personal representatives. Sanderlin v. Deford, 47 N.C. 74.
PER CURIAM.
Let the demurrer be overruled and a decree be entered declaring the opinion of the Court as to the Construction of the will and requiring the defendant to answer.
Cited: Newman v. Miller, 52 N.C. 519; Blake v. Page, 60 N.C. 253; Mayhew v. Davidson, 62 N.C. 49; Conigland v. Smith, 79 N.C. 304; Hooker v. Montague, 123 N.C. 158.