7 N.C. 178 | N.C. | 1819
This petition was filed by the children of Bird Rogers, who were born at the time of the testators death, to recover from the executor, the property bequeathed in the residuary clause of the will. The executor pleaded, that there were born to the said Bird Rogers, in lawful wedlock, after the death of the said testator, other children, to-wit, Richard, Rebecca, John, James, Sarah, c., who were not made parties to the petition; and prayed judgment of the Court, whether he was bound to make any further answer. It did not appear in the case, whether Littleton Rogers was dead, or whether the eldest son of Bird Rogers was of full age, before the birth of the after born children. It was referred to this Court to decide, whether the children of Bird Rogers, born after the death of the testator, were entitled to any share of the residue. Persons claiming under a general description in a will, are entitled, if they can bring themselves *138 within the description, when by the will of the testator, a fund is to be divided. Therefore, where property is given to the children of A, and no time is fixed for a division, it is divisible by the will at the testator's death, although the executor must by law, hold it for two years, for the benefit of creditors. Of course, only those children born at the time of the testator's death, or in ventre sa mere, are entitled. If any after period be fixed by the testator, those who answer the description at that period, will take; and there is a strong leaning in favor of children, to lay hold of any circumstances to postpone the time of division, to embrace, all the children, in conformity (180) with the principles governing the Court in marriage settlements, and, in the meantime, to allow maintenance to the children, if necessary. This brings us to the question, When is the residue in this case, to be divided? And this depends on the time the negroes are to be divided, and the effect of the words "asaforesaid," in the residuary clause.
The negroes are to be divided after Littleton's death, and when the eldest child of Bird shall arrive at full age; that is, Littleton must be dead, and Bird's eldest child must be of full age. They are not divisible until both happen; the most remote, therefore, determines the time of division. Then the residue is to be divided, as aforesaid; that is, as the negroes are, at the same time and in the same manner. By this means, the greater number of children will be let in, and the testator's bounty more equally shared. We may suppose the testator intended this fund to be divided when Bird's eldest child should arrive at full age, regardless of the fact of Littleton's death or life; because this fund is not included in the bequest to Littleton for life, and therefore no necessity of postponing it until his death should happen. But this supposition would be to make, not expound the will. It is possible he might have so intended; but he has said otherwise, by directing it to be divided as aforesaid, which cannot be satisfied without dividing it in the same manner, that is, among the same persons, which might not be the case if different periods were fixed on for the division. The question in this case is then answered: the children born subsequent to the death of the testator, are entitled. But to make the plea good, it should have been stated or averred in it, that the children were born before the death of Littleton, or before the eldest child of Bird arrived at full age; in other words, before the time of division; for, on that fact depends their claim, and on their claim, the validity of the plea. In its present dress, the plea is bad: and the Defendant must answer. But were the case before this Court, an amendment would be *139 permitted; for it is evident the petition was brought to try the right of the afterborn children regardless of the (181) time when born; whether before or after the two periods before mentioned as the time of division.
Cited: Fleetwood v. Fleetwood,
