Opinion
(December Term, 1844.)
1. A devise to A and "if she dies leaving no issue," then "to my children, B, C," etc., will operate as a good executory bequest to the children B and C, if A should die without leaving any issue at the time of her death.
2. It is a general rule in equity that all persons interested must be made parties, plaintiffs or defendants.
3. There are four modes of taking an objection for want of parties: by demurrer on record, demurrer ore tenus, by plea, and by answer. But the defendant taking such objection must always apprise the plaintiff of the persons who should be made parties.
4. The effect of an objection, successfully taken, for want of parties, is not that the bill is to be dismissed, but that it stands over with leave to amend by adding the necessary parties.
This was an appeal from an interlocutory decree of the Court of Equity of BEAUFORT County, at the Fall Term, 1844, his Honor, Judge Dick presiding, overruling a demurrer filed by the defendant to the plaintiff's bill.
The facts disclosed by the pleadings are incorporated in the opinion delivered in this Court.
J. H. Bryan for the plaintiff.
No counsel for the defendant.
George Gordon, in 1839, made his will, and in it among other things is this clause, "I loan to my daughter, Sarah, and to her husband, Joel K. Holland, during their natural lives, one-fourth part of my negroes; and then I give them, to the lawful heirs of Sarah. And in case she dies, leaving no issue, I give them to my children, George, William and Elizabeth, to be equally divided between them." The words in the will, "in case she, Sarah, dies, leaving no issue, I give them (the slaves) to my children, George William and Elizabeth," makes a good executory bequest (363) to the said children. The words, "leaving," "leave," have been held sufficient to restrain the general import of the term issue, to those living at the death of the first taker, so as to give effect to the bequests over, upon there being no such issue in existence at that period. 1 Roper Legacies, 371, and the cases there cited. The slaves were divided, and the one-fourth delivered by the executors to Holland and wife.
The plaintiff, George W. Gordon, one only of the executory devisees, has filed this bill quia timet, stating in it that Holland has threatened, and is now about to sell the said slaves, etc. The bill prays that Holland be enjoined from selling the said slaves, etc. The defendant demurred to the bill, for want of parties. The Court overruled the demurrer, and the defendant by the consent of the Court appealed. The two other executory devisees, William and Elizabeth Gordon, appear, upon the face of the bill, to have just the same interest in the said slaves as the plaintiffs. It is a general rule that all persons interested must be made parties, plaintiff or defendant. The rule is founded upon the advantage which all persons interested will derive from the completeness of the decree, and from the entire settlement of the matter in litigation; in other words it is founded upon convenience. Calvert Parties, 17, 19. There are four different modes of taking an objection for want of parties: by demurrer on record, demurrer ore tenus, by plea, and by answer. It is not sufficient that the defendant state a want of parties; he must give information that the plaintiff may be able to see who the persons are, who should be added as parties. Calvert, 113, 114. The demurrer put into this bill, has named the brother and sister of the plaintiffs as necessary parties, and they appear to be so from the bill itself; and the demurrer should, we think, have been sustained by the Judge of the Superior Court. The effect of an objection, successfully taken for want of parties, is, not that the bill is to be dismissed, but that it stands over, with leave to amend by adding the necessary parties. Calvert, 116. (364) But this is not for us, but for the Court below, and on such terms as shall seem good to that Court.
PER CURIAM. ORDERED THAT A CERTIFICATE ISSUE ACCORDINGLY TO THE COURT BELOW, AND THAT THE PLAINTIFF PAY THE COSTS OF THIS COURT.Cited: Smith v. Kornegay, 54 N.C. 42; Caldwell v. Blackwood, Ib., 278; Webber v. Taylor, 58 N.C. 37.