Opinion
(June Term, 1866.)
Where real and personal property was given to A, in trust for his wife and their children, with power to apply the proceeds to the maintenance, etc., of the cestui que trusts, and as the children should come to maturity to advance them, and also to devise the property to his wife and such of his children as he should deem right ( 60 N.C. 575): Held,
(1) That, upon the death of any such children in A's lifetime, their several shares in the property vested in their real and personal representatives respectively, subject to any execution thereafter of the said power.
(2) That under the power to devise, inasmuch as some of the children survived him, he could not devise to a grandchild.
ORIGINAL BILL, upon an application for further directions.
The case is sufficiently set forth in 60 N.C. 575, June Term, 1864.
Bynum, for the complainants.
No counsel in this court for the defendants.
When this case was before the court at June Term, 1864, we confined our decision to the question as to the construction of the deed executed by Jonathan L. and George M. Carson, to (58) their brother, William M. Carson, in trust for certain persons therein described; and we held that the cestui que trusts were the trustee's then wife, Elmira, and the children which she then had and might thereafter have by him; and that the children which the trustee had by a second wife took no part of the trust fund. Carson v. Carson, 60 N.C. 575. Some other questions were presented by the pleadings which we declined to consider until we could hear an argument upon them.
One of the questions is, whether the children of William M. Carson by his first wife had, during the lifetime of their father, such an interest in the trust property not advanced to them by him, as survived to the real and personal representatives of those of them who died before him. We are clearly of opinion that they had, as is shown by the cases referred to by the counsel. Miller v. Bingham, 36 N.C. 423; Simmons v. Gooding, 40 N.C. 382; Brinson v. Wharton, 43 N.C. 80. The consequence is, that the husbands of the deceased daughters will be entitled, respectively, to the shares of their wives in the personal estate. The land and its proceeds will go to the heirs-at-law of the deceased, who will be the children of the daughter who left children, and the brothers and sisters, including the half-blood, of the daughter who died without children. The brother and sister of the half-blood will also be entitled to equal shares with the other brothers and sisters of William, who died intestate and without issue.
Another question is, whether the trustee, under power to make provision for his children by will or deed, could thus provide for grandchildren, the children of a deceased daughter.
It is settled that, where there are gifts in a will to children, grandchildren can not take when there are any persons answering to the description of children. Ward v. Sutton, 40 N.C. 421. Upon the same principle, a power conferred upon a person to dispose (59) of a fund among children will not authorize a disposition of a part of the fund to grandchildren, at least while there are any children who can take it. Scott v. Moore, 60 N.C. 642, referred to by the counsel, does not apply, because that was the case of a marriage settlement decided upon the peculiar working of the instrument, aided by the consideration that from its nature it was intended to provide for the offspring of the parties to it. A decree may be drawn in accordance with this opinion.
PER CURIAM. Decree accordingly.
Cited: Lee v. Baird, 132 N.C. 760.