Opinion
05-03-1866
NORRIS v. JOHNSTON.
Griswold, for the appellant. Spillman and Wm. Green, for the appellee.
Testator had twelve children, six unmarried daughters. He directed his estate to be divided into twelve parts, and gave a part to each child. He then says; " It is my will and desire that if any of my children die without heirs, for their part to be equally divided amongst all of my children then living." HELD: This is a good executory bequest in favor of the children surviving one dying without issue.
This was an action of detinue in the Circuit court of Fauquier county, brought in 1857 by Catherine Johnston against Thomas Norris, to recover two slaves. At the September term of the court for 1859 the parties agreed a case, and submitted it to the judgment of the court. The material facts are as follows:
Prior to April, 1802, Wm. Norris departed this life, having first made his will, which was duly admitted to probate in the County court of Fauquier. At the time of his death he had twelve children, of whom six were unmarried daughters. He directed that his estate (except that he thereafter mentioned) should be divided into twelve parts; and gave it among his children, making some special provisions for his unmarried daughters. And he then concluded with the following provision: " It is my will and desire that if any of my children die without heirs, for their parts to be equally divided amongst all my children then living."
One of the slaves in controversy and the mother of the other, were allotted on the division of the estate, to Ellen Norris, one of the unmarried daughters, who lived until March, 1855, and then died unmarried. In February, 1855, she conveyed these slaves to the defendant. At the time of her death the plaintiff and Mrs. Craig were the only two living children of Wm. Norris, the testator, and before the suit was brought Mrs. Craig died, and bequeathed her interest in the slaves to the plaintiff.
Upon the case agreed the Circuit court rendered a judgment in favor of the plaintiff, for the slaves, or their value as agreed, and damages for detention: Whereupon, Thomas Norris obtained a supersedeas to the judgment from this court.
Griswold, for the appellant.
Spillman and Wm. Green, for the appellee.
OPINION
MONCURE. J.
The court is of opinion that the clause in the will of William Norris in these words: " Item--It is my will and desire that if any of my children die without heirs for their parts to be equally divided amongst all my children then living," is a valid executory bequest, being to take effect in the lifetime of a person or persons in being at the time of the testator's death. The word " heirs" in the clause means " issue; " and the words, " all my children then living," mean all his children living at the time of the death of any of his other children without issue. Whether he contemplated a failure of issue happening only at the death of the first taker, or one that might happen afterwards, is immaterial, since by the express terms of the will, it must happen in the lifetime of some of his children, otherwise the limitation over to his " children then living" can have no effect. Ellen Norris, one of the children of the testator, having died unmarried and without issue in the lifetime of two only of the other children, to wit, the plaintiff in the court below and another, they became entitled at her death, under the executory bequest aforesaid, to her portion of the slaves derived by her under the said will, which embraced the slaves in controversy. And the said plaintiff, being the last survivor of the said two survivors, is entitled to maintain this action. The judgment of the court below is therefore affirmed.
JUDGMENT AFFIRMED.