62 N.C. 47 | N.C. | 1868
(48) The complainants were the only children of the testator who were surviving when the bill was filed, and the administrator of two that had died since his death. The other child who had outlived the testator was Mahala, whose death is mentioned in the opinion. The defendant was the only executor that had qualified.
The only clause of the will that was in dispute was as follows: "16th. It is my wish, and I so direct, that the shares in the lands and negroes which my son, Presley, and my daughters, Matilda, Mahala and Evalina, are entitled to under this will, except, etc., as well as their equal dividend of the residue of my estate not bequeathed, be retained by and be subject to the control of William Mayhew and George F. Davidson, trustees as aforesaid, in trust for the said Presley, Matilda, Mahala and Evalina, during their lives, and at the decease of any one of them the property and its increase to be divided by said trustees equally among the children of what was due the parent, and should there be no children, the property to return to her, his or their brothers and sisters."
The cause was set for hearing upon bill and answer, and ordered to be removed to this court, at Fall Term, 1863, of IREDELL. The property given to four of the children of the testator, to wit: Presley, Matilda, Mahala and Evalina, is to be held in trust for them during their natural lives; and at the death of any one of them leaving a child or children, the share of the deceased parent *45 is to belong to such child or children; but if one or more should die without leaving a child or children, "the property is to return to her, his or their brothers and sisters." Mahala died without (49) leaving a child, and the question is, Who take under the description, "her brothers and sisters"?
The will takes effect and speaks at the time of the testator's death, and the brothers and sisters of Mahala living at that time are as clearly designated by this description as if they had been named. These words do not include brothers and sisters who may have died in the testator's lifetime. For they would naturally be referred to as "deceased brothers and sisters." The children of such would be spoken of as Mahala's nephews and nieces. On the other hand, the words can not be restricted to brothers and sisters living at Mahala's death; for to give them that effect, it would be necessary to add the words "living at her death," or to say, surviving brothers and sisters, or words of a similar import.
We have here then a contingent limitation, where the persons are certain and the event uncertain. Interests of this sort, if in land, are transmissible by descent; if in personalty, devolve upon the personal representative; Newkirk v. Hawes,
The property to which Presley becomes entitled as one of these brothers, will not be subject to the trust which affects the property originally given to him.
There will be a decree declaring the rights of the parties according to this opinion. The costs will be paid out of the fund.
PER CURIAM. Decree accordingly.
(50)
