1. Where a bequest is to the heirs of S.W. but that none of it should be sold but all kept until the said heirs should come of age or S.W. should die, held that a payment by the executor to S.W. in his lifetime, though he was poor and required the property for the support of his family, did not exonerate the executor from his liability to the children of S.W. after the occurrence of the events mentioned in the will.
2. The lapse of time will not help the executor, when he admits he paid the legacy to the father, and not to the children; either as evidence of payment to the children, or abandonment or acquiescence by them.
3. When a legacy is given to "children" as a class, payable at a future time, any child, who can entitle itself under the description at the time when the fund is to be divided, may claim a share thereof.
GASTON, J.
We think his Honor erred in excluding from the benefit of the legacy such of the children as were born after their grandmother's death. It is settled that when legacies are given to "children," as a class of individuals, payable at a future period, any child, who can entitle itself under the description, at the time when the fund is to be divided, may claim a share thereof. See 1 Roper on Legacies, (325) and the cases there cited. Knight v. Wall, 19 N.C. 125; Vanhook v. Vanhook, 21 N.C. 589. But as no appeal has been taken by the petitioners, whose claim was rejected, we cannot correct this error.
There is no error, we think, of which the defendant can complain. It is impossible for the Court to hold that the legacy has been paid to the petitioners; for the defendant sets up no such allegation. He admits the legacy to be unpaid, unless in law the payment thereof to their father and the application made by him of the money so paid to their support in infancy, operates as a satisfaction of their legacy. Now, without stopping to inquire how this might be in the case of a naked gift to suffering children, whose father was unable to support them, in this case it is impossible for us so to hold, without contradicting the will. The testatrix had a right to do with her own as she pleased, and she expressly directed that while the children were under age, and their father lived, the whole fund should be kept unimpaired. The trust, with which the defendant was charged, is thus, upon his own showing, an open unexecuted trust — and, therefore, the delay, which has occurred in calling for its execution, will not prevent the Court from decreeing that it shall be executed.
PER CURIAM. Affirmed.
Cited: Sanderlin v. Deford, 47 N.C. 77.
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