| N.C. | Jun 5, 1840
With every disposition to the contrary, we find ourselves obliged to hold the legacies in this will not to have been vested. There are no words of gift of the personalty, except by inference from the direction to divide; and as to the period of division, and consequently of gift, the will uses terms of strict condition — "at the time my daughter, Sarah, arrives to fifteen, and when he or she shall receive," etc.
To take the case out of the well-known general rule, several circumstances were relied on by the plaintiff's counsel. It was *42 first argued that, as immediate estates in the land are devised, and as it and the negroes are to be hired out by the executors (59) for the same period and for the same purpose, the whole ought to be looked on alike as having been given presently, but to be divided at the future day. But to that we cannot accede. As to the land, it is given immediately, which shows the testator knew how to make such a gift when so minded; but it is not to be divided when Sarah shall be fifteen, for the testator himself makes the division between his daughters and his son; and as to the tract given to the daughters, there is no period of division between them designated. But there is no gift of the personal estate distinct from the provision for its division, which is to be made equally between all the children, and for the first time at the time Sarah should be fifteen. We cannot, therefore, infer a gift before that time. Consequently the legatees must be living at that time, so as then to answer the description of "children," or they cannot take. Sansbury v. Reade, 12 Ves., 75; Ford v. Rawlins, 1 Sim. Stu., 328.
As the testator died without leaving a wife, and intended his children should share equally, or nearly so, in his personal estate, it is possible that he deemed it unnecessary to make an express bequest, and considered they would, by law, succeed immediately. If this was so, then his directions refer simply to the enjoyment and postpone the period for that, from considerations of convenience. But this can be nothing more than conjecture; and we find no case that warrants a different construction of such expressions as are here used, when applied to legatees who are or who are not the next of kin of the testator.
Nor have we any difficulty from the notion that, as to the share of one dying before Sarah's age of fifteen, the testator is made to die intestate, though he intended the contrary. He is not intestate in that case. The gift is not to these persons nominatim, if living at Sarah's arrival at fifteen, but it is to the testator'schildren as a class at that period. The will, then, disposes of the whole personal property, unless all the children should be dead before that period, and in that event there would be a total intestacy, or, rather, the whole disposition would fail, because (60) the testator did not contemplate that event and provide for it.
The provision for maintenance will not bring the case within that exception to the general principle which is founded on a gift of the intermediate interest or profit to the same legatee to whom the future legacy of the capital is given. That does not apply if the maintenance is not to absorb the whole amount of *43 profit, or if it be not restricted to that as the only fund. Pulsford v.Hunter, 3 Bro. C. C., 416; Hanson v. Graham, 6 Ves., 249; 1 Rop. Leg., 497. Here the intermediate profits are not given to the children as distinct from the capital nor for the purpose of maintenance. The maintenance is merely a charge, which may not consume the profits, or it may greatly exceed it, and in that case the capital must supply the deficiency. Besides, the maintenance itself was to cease upon the marriage of a child before the division.
Upon the whole, we can lay hold of nothing in the will to control the words of condition. The circumstance that the testator contemplated the marriage of one or more of his children before Sarah's age of fifteen, and that, notwithstanding such children would take nothing in the event of their deaths before that period, although they might leave a child, had its weight and induced us to pause in adopting the construction. But it is not sufficient of itself. It shows either that the testator had an unnatural intention or that he did not think of the death of a child, leaving a child, before the day for division. The latter is more probable, but in neither case would the court be justified in rejecting his words or refusing to carry into effect his intention, as collected from the established interpretation of his language. The opinion of the Court is that only those children take who were living when Sarah would have been fifteen.
PER CURIAM. Decree accordingly.
Cited: Devane v. Larkins,
(61)