The petition alleged that Joseph McLaughlin by deed dated in January, 1881, conveyed the land described in the petition to the feme plaintiff, Annie M. Heath, "and her children."
2. That at the time said deed was executed by the said Joseph McLaughlin, the father of the said feme plaintiff, she had no child born, but the defendant, Eva Heath, was born within two (548) months from the date of said deed, and the other defendants, Eula Heath, Henry Heath and Etta Heath, were born to the said feme plaintiff and her husband, E. J. Heath, more than twelve months from the date of said deed.
A guardian ad litem was appointed for the infant defendants, Eula, Henry and Etta, who demurred to the petition. His Honor overruled the demurrer and remanded the case to the clerk to be (549) proceeded with, and from this judgment the defendants Eula, Henry and Etta appealed.
In Dupree v. Dupree, 45 N.C. 164, it was decided that by a conveyance like the present where a child en ventre sa mere
is to take directly and not in succession the child can take nothing. The reason assigned by Pearson, J., is because "there being no trustee to keep the uses open, the conveyance must take effect immediately or not at all." "There must be a grantor and a grantee and a thing granted." Although it appeared, as it probably does in this case, that the children to be thereafter born were to take as tenants in common with their parent, the principle above mentioned, after a learned discussion, was applied in the following language: "We have no sort of doubt that the grantor intended all the children of Robert and Rachel Dupree,. . . without reference to the time of their births, to be participants of her bounty, and the only regret is that she did not call upon a lawyer who would have drawn a conveyance passing the property to a trustee by which the uses could have been kept open until the death of Mrs. Dupree so as to let in all of her children. But she chose to make a common-law conveyance directly to the children, and, of course, no other could take under her deed of gift except those in esse, or, (550) as my Lord Coke expresses it, in rerum natura, when the right of property passed out of her, to wit, at the date of the deed of gift." See also, Gay v. Baker, 58 N.C. 344; Hunt v. Satterthwaite, 85 N.C. 73;Hampton v. Wheeler, 99 N.C. 222; 1 Devlin, Deeds, sec. 123.
The law as thus declared is still in force and is only modified in so far as it affects a child en ventre sa mere. The Code, sec. 1328. From this it must follow that Eva, who was en ventre sa mere at the date of the conveyance, is the only child who takes any estate thereunder. For a full discussion of the subject the reader is referred to Dupree v. Dupree,supra. The judgment must be
Affirmed.
Cited: Campbell v. Everhart, 139 N.C. 512; Cullens v. Cullens,161 N.C. 346; Powell v. Powell, 168 N.C. 562; Williams v. Blizzard,176 N.C. 148.