59 N.C. 276 | N.C. | 1862
Had the testator's daughter, Mrs. Payne, passed through life without having had a child, we should not have hesitated to (278) hold that the claim of the other children of the testator, and their representatives, under the ulterior limitation to them, would not have been prevented by the operation of the rule in Shelly's case, in her favor. That rule would have been excluded, either upon the principle *217
adopted by the court in Payne v. Sale,
We come now to consider the case in the event which happened: that she bore a living child, which, however, died in her lifetime. Did that child take any interest in the property, under the limitation, after her life estate, "to be equally divided among the heirs of her body forever." The answer to this question is to be found in the rulings of the Court in Swainv. Roscoe, ubi supra; Evans v. Lea,
From these cases it will clearly appear that in bequests of personal property, like the present, heirs of the body mean children; that when children take, as a class, at the expiration of a life estate, each child takes a vested interest at its birth, subject to be partially divested in favor of the other children as they are born, and that upon the death of one of the children during the existence of the life estate, his or her interest goes to his or her representative, and does not devolve upon the other children by virtue of the limitation unless an intention (279) to that effect is manifested in the will.
Assuming, then, as we must, that Mrs. Payne's child took a vested interest in the property as soon as it was born, the next enquiry is, what was the extent of that interest. It could be none other than the absolute interest which, of course, excluded the ulterior limitation to the testator's own children. This will appear from many cases in our own Reports and particularly from Sanderlin v. Deford, ubi supra, where the subject is more fully discussed than in most of the others. Upon the death, then, of Mrs. Payne's child, the vested interest which it took in the legacy devolved upon its personal representative, from whom Mrs. Payne or her husband took it as her child's next of kin.
The only case to which the counsel for the plaintiff, in the able argument which he submitted, has referred us, which at all impugns any of the principles we have stated, is Jarvis v. Wyatt,
Believing that the birth of Mrs. Payne's child defeated the ulterior limitation under which the plaintiffs claim, it is unnecessary for us to notice particularly the objection that that limitation is too remote, and therefore void. Sanderlin v. Deford, already referred to, would, if its aid were necessary, be a strong authority in favor of such objection. There, the form of expression in the will, "for want of such heirs," is almost identical with that in the will now before us, and it was said by the Court that if the will had been made before the Act of 1827 (as the present will was), the limitation would have been too remote. But it is needless to enlarge upon this question, as, for the reasons given upon another part of the case, we are of opinion that the plaintiffs have (280) no claim to the property in dispute, and their bill must be
PER CURIAM. Dismissed with costs.
Cited: Britton v. Miller,