On this appeal there are three questions for this Court to determine. 1. What estate or interest did Polly Jones take under this clause in her father, George Norwood's will, "I lend to my daughter Polly Jones one negro girl named Mary for her life; after her death, to be equally divided among the heirs of her body forever." The difference between this case and Ham v. Ham, 21 N.C. 598" court="N.C." date_filed="1837-12-05" href="https://app.midpage.ai/document/ham-v--ham-3659628?utm_source=webapp" opinion_id="3659628">21 N.C. 598, consists in the words "equally to be divided among the heirs of her body forever." In Ham v.Ham the gift was to her daughter for life, then to her lawful heirs. In the case before us, if it had been a devise of land we think that Polly Jones would have taken an estate tail at the common law, and wherever words in a will create an estate tail in lands they will, in a bequest of chattels, carry the absolute estate. That the words made use of in Norwood's will would create an estate tail in a devise of land we think is established by the two cases of Jesson v. Wright, 2 Bligh., 2, and Doe v.Harvey, 4 Barn. Cress., 610. Hays Real Estate, 100-115. We therefore approve of this part of the decree. 2. Mary Jones by her last will gave her "negro woman Mary and all her children" to certain legatees. The slave Mary had a (248) grandchild born in the lifetime of the testatrix. Did the grandchild of Mary pass to the said legatees under the words "and all her children"? A devise or bequest to the children of a man do not extend to his grandchildren. Grandchildren never take when there are children to answer the description. 2 Powell Dev., 298 (Jar. Ed.), and the cases there cited. If, therefore, when the persons to take are described as "children" and under that description a grandchild cannot take, if there be children, so we think that where the property bequeathed is described in the will "to be the children of my negro woman Mary" the grandchild will not pass to the said legatees. The grandchild of the slave Mary is therefore to be sold under the residuary clause and the money arising from the sale is to go to William Jones and Sugars Jones in the proportions declared in the will. We approve, therefore, of this part of the decree. 3. We do not agree to so much of the decree as declares William Jones and Sugars Jones to be the general residuary legatees of
the testatrix, Mary Jones. The words of the will are as follows: "All the balance of my estate that is not given to be sold, and the money arising from the sale I give to my son Sugars Jones one-fifth and all the balance I give to my son William Jones." William and Sugars are to have only the money arising from the proceeds of the sale, and not all her money. We think that the testatrix could not have intended that her specie and bank notes on hand at her death should be exposed to sale. She must necessarily have meant by the above words such property as was usually the subject of sale. William and Sugars are therefore only particular residuary legatees of that money which arose from the sales of all the salable property not disposed of by the will. The money on hand at the testatrix's death (viz., specie and bank notes) is undisposed of by the will, and it will be distributed among the next of kin. So much of the decree, therefore, as declared that the money on hand belonged to Sugars Jones and William Jones ought to be corrected according to this opinion. The costs of the cause in this Court are to (249) be paid by the plaintiff out of the funds in his hands. No solicitor's fee to be taxed.
PER CURIAM. Decreed accordingly.
Cited: Swain v. Roscoe, 25 N.C. 203; McCorkle v. Sherrill, 41 N.C. 1778;Alexander v. Alexander, ib., 231; Pless v. Coble, 58 N.C. 232;Hogan v. Hogan, 63 N.C. 225; Harkness v. Harkey, 91 N.C. 199" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/boing-v-raleigh--gaston-railroad-3658553?utm_source=webapp" opinion_id="3658553">91 N.C. 199.