Opinion
(June Term, 1862.)
1. A bequest of slaves to one, for life, with a limitation over to his or her children equally to be divided, is not controlled by the rule in Shelly's case, but confines the interest of the first taker to his or her life.
2. Where children take as a class at the expiration of a life estate, each child takes a vested interest at its birth, subject to be partially divested in favor of the other children of the class as they are born, and upon the death of one of the children during the existence of the life estate, his or her interest goes to his or her representative, and not to ulterior limitees dependent on the first taker's dying without issue.
(277)
CAUSE removed from the Court of Equity of DAVIDSON.
Simon Williams, in 1809, bequeathed as follows: "I lend unto my son, Alanson Williams, and my son-in-law, Anthony Sale, in trust, for the only use and benefit of my daughter, Betsy Payne, during her natural life, against the claim or contract of her present or any future husband, the following negroes and their future increase: Thena and her two children (the names not known), David, Ransom, and Revey; my will and desire is that the negroes and their future increase, lent to my son, Alanson Williams, and Anthony Sale, in trust for the use and benefit of my daughter, Betsy Payne, against the claim or contract of her present husband or husbands, during her natural, life shall be equally divided among the heirs of her body forever; but for want of such, my will and desire is that the said negroes and their future increase be equally divided among my other children or their representatives." Betsy Payne, the legatee herein mentioned, received the slaves bequeathed, and kept them until 1857, when she died, having disposed of the said slaves and their increase (now very numerous) by her last will and testament. The said Betsy Payne had one child, which died in its infancy, many years before her death, and never had any other. The plaintiffs are the brothers and sisters of Betsy Payne and their representatives, and claim by virtue of the limitation over after the death of Mrs. Payne. The defendants claim under the will of Betsy Payne. The cause was heard on bill, answer, proofs, and exhibits.
B. F. Moore for the plaintiffs.
Fowle and Kittrell for the defendants.
Had the testator's daughter, Mrs. Payne, passed through life without having had a child, we should not have hesitated to (278) hold that the claim of the other children of the testator, and their representatives, under the ulterior limitation to them, would not have been prevented by the operation of the rule in Shelly's case, in her favor. That rule would have been excluded, either upon the principle adopted by the court in Payne v. Sale, 22 N.C. 455, on the construction of the same will which we have now before us, or upon that of Swain v. Roscoe, 25 N.C. 200. The counsel for the defendant has ventured to call in question the propriety of the decisions in both these cases, and has suggested reasons and produced authorities to show that they would have been ruled otherwise by the English Court, but we do not feel at liberty to impeach them. Indeed, the principle of the latter case has been since confirmed, and must be considered now as a settled rule of construction in this State. Under that principle we hold that Mrs. Payne took a life estate only in the property bequeathed to her.
We come now to consider the case in the event which happened: that she bore a living child, which, however, died in her lifetime. Did that child take any interest in the property, under the limitation, after her life estate, "to be equally divided among the heirs of her body forever." The answer to this question is to be found in the rulings of the Court in Swain v. Roscoe, ubi supra; Evans v. Lea, 40 N.C. 169; Knight v. Wall, 19 N.C. 125; Sanderlin v. Deford, 47 N.C. 74, and several other cases, including Mason v. White, 53 N.C. 421.
From these cases it will clearly appear that in bequests of personal property, like the present, heirs of the body mean children; that when children take, as a class, at the expiration of a life estate, each child takes a vested interest at its birth, subject to be partially divested in favor of the other children as they are born, and that upon the death of one of the children during the existence of the life estate, his or her interest goes to his or her representative, and does not devolve upon the other children by virtue of the limitation unless an intention (279) to that effect is manifested in the will.
Assuming, then, as we must, that Mrs. Payne's child took a vested interest in the property as soon as it was born, the next enquiry is, what was the extent of that interest. It could be none other than the absolute interest which, of course, excluded the ulterior limitation to the testator's own children. This will appear from many cases in our own Reports and particularly from Sanderlin v. Deford, ubi supra, where the subject is more fully discussed than in most of the others. Upon the death, then, of Mrs. Payne's child, the vested interest which it took in the legacy devolved upon its personal representative, from whom Mrs. Payne or her husband took it as her child's next of kin.
The only case to which the counsel for the plaintiff, in the able argument which he submitted, has referred us, which at all impugns any of the principles we have stated, is Jarvis v. Wyatt, 11 N.C. 227. Of that case, it is only necessary for us to remark that the point decided may be supported by the peculiar language of the will, or, if it can not be supported on that ground, it must be considered as having been overruled by the numerous cases since adjudicated upon that point, to several of which we have already referred.
Believing that the birth of Mrs. Payne's child defeated the ulterior limitation under which the plaintiffs claim, it is unnecessary for us to notice particularly the objection that that limitation is too remote, and therefore void. Sanderlin v. Deford, already referred to, would, if its aid were necessary, be a strong authority in favor of such objection. There, the form of expression in the will, "for want of such heirs," is almost identical with that in the will now before us, and it was said by the Court that if the will had been made before the Act of 1827 (as the present will was), the limitation would have been too remote. But it is needless to enlarge upon this question, as, for the reasons given upon another part of the case, we are of opinion that the plaintiffs have (280) no claim to the property in dispute, and their bill must be
PER CURIAM. Dismissed with costs.
Cited: Britton v. Miller, 63 N.C. 270; Conigland v. Smith, 79 N.C. 304; Leathers v. Gray, 101 N.C. 167, 168.