Opinion
(December Term, 1859.)
1. It is a settled rule of this Court that when a fund is given to a class, all who answer the description, when it is to be paid, are entitled to participate in the bounty.
2. A bequest of a fund, therefore, "to the heirs of the body of A., "to be paid as they come of age, will take in all the descendants of A. that were born at the testator's death, and also those born after that event and between that and the time of the first child's arrival at twenty-one.
CAUSE removed from the Court of Equity of NEW HANOVER.
Baker for plaintiffs.
W. A. Wright for defendant.
James Mumford, of the county of Onslow, in his last will, bequeathed, among other things, as follows:
"Item. I give and bequeath unto the lawful heirs of Leah Melton, with the exception of James Mumford Melton, which I have already provided for, the sum of $500, to be put on interest until they (43) become 21 years of age, and then the principal and interest to be paid over to them by my executors."
At the death of the testator, Leah Melton had but one child, the plaintiff Ada, who has intermarried with the other plaintiff, Thomas W. Hawkins; but since then, and before Ada arrived at 21, she has had four other children, who are all alive. The bill is filed under the impression that the plaintiffs are entitled to the whole of the $500, and the prayer accordingly is that it be paid over by the executor, who qualified.
The defendant demurred to the plaintiff's bill upon the ground that it appeared therefrom that Leah Melton had four other children who are not made parties to the bill, and the main question was, whether the legacy of $500 was devisable among the whole five children, or whether the plaintiff Ada was alone entitled to it.
Another question raised on the argument was, whether Ada or any other one of the children could get a share till the youngest child of Leah Melton arrived at the age of 21.
The cause being set for argument on the demurrer, was sent to this Court.
The question presented by the pleadings is, Does the entire fund belong to the plaintiff Ada, or is she entitled only to one-fifth part, leaving the residue for the other four children of Leah Melton?
The words "lawful heirs" in the first part of the clause under consideration, are explained by the words "the rest of the lawful heirs of her body." So the clause should read thus, "I give $500 to the lawful heirs of the body of Leah Melton, except her son James to be put on interest until they become 21 years of age, and then the (44) principal and interest to be paid over to them by my executors." "Heirs of the body" has a more extended meaning than "children." It is synonymous with "issue," and includes "children" and the descendants of any child that may be dead. That point, however, does not arise, for all of the children of Leah Melton are alive, and the question is, Does Ada, who was the only child born at the death of the testator, take the whole, or do the four children born afterwards and before Ada arrived at age share with her?
It is a well-settled rule of this Court that when a fund is given to a class, all who answer the description at the time, when it is to be paid, are entitled to participate in the bounty. This rule is based on the principle that as many objects of the testator's bounty as possible ought to be included, and there is no necessity for ascertaining the owners of the fund until it is to be distributed.
There is no special circumstance to take this case out of the operation of the rule, and as all of the children were born before Ada arrived at age, it is immaterial, for the purpose of this bill, whether that was the time for the distribution of the fund, or whether it is to be postponed until the youngest child arrives at age, for in either view the demurrer must be sustained on the ground that the claim to the whole, which the plaintiff set up in the bill, is unfounded, and the other children are necessary parties.
As the parties desire a definitive construction of the will and a declaration of their rights, so that the executor may administer the fund without further litigation, and we have had occasion to form an opinion after a full argument, we feel at liberty to say that the plaintiffs were entitled to the share of Ada when she arrived at age, and that the entire fund is not to be held up until the youngest child comes of age. The clause should read, "to be put on interest until they respectively become 21 years of age, and the share of each child, principal and interest, to be paid over as they respectively arrive at that age." The words used in the will are inaccurate, and, in fact, do not make sense, for there can be no one time when several children become 21 years (45) of age. When the oldest arrives at that age the others will be behind, and when the youngest, the others will have passed it; so the sense requires that respectively should be understood, and this will make the provision in accordance with what is usual and natural in respect to such bounties. As each child respectively arrives at full age, he will stand in need of assistance to make a start in the world, and we must suppose that it was the intention of the testator to render it to them at that time; in the absence of any clearly expressed purpose to postpone it in regard to all the objects of his bounty, except the youngest child. In other words, there is a presumption that he intended to put them all on an equality and to give them a like benefit, nothing appearing to the contrary.
The plaintiffs have leave to amend by making the other children parties plaintiff, and making the allegations of the will conform thereto, and there may be a decree declaring the rights of the parties according to this opinion. The plaintiffs will pay costs as in case the bill was dismissed. See Webber v. Taylor, ante, 36.
PER CURIAM. Decree accordingly.
Cited: Irvin v. Clark, 98 N.C. 445; Wise v. Leonhardt, 128 N.C. 291; Cooley v. Lee, 170 N.C. 21.
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