A, by will dated in December, 1836, devised and bequeathed, among other things, as follows: "The balance of my estate to be equally divided between my wife and children," and in another clause "My wish and desire is, should either of my children die, without leaving an heir begotten by their body or bodies, that the survivor or survivors have the whole"; and, in another clause, "should my children all die without leaving an heir, begotten by their bodies, my wish and desire is, that my brother T should heir the whole of my estate as allotted to my children." The testator died, leaving three children, M, O and E. M died, leaving a child. After the death of M, O died without issue, leaving E surviving. Held, that all the estate of O so dying became vested in E, her only surviving sister, and the child of M was entitled to no share of it.
DANIEL, J.
William W. Freshwater made his will, and, after some devises of land and personal property, and directing his debts to be paid, bequeathed as follows: "The balance of my estate to be equally divided between my wife and children." The testator at his death had three children — daughters, Matilda, Orange and Elizabeth. In another clause of the will the testator said, "My wish and desire is, should either of my children die, without leaving an heir begotten by their body or bodies, that the survivor or survivors have the whole. And should my (157) children all die without leaving an heir begotten by their bodies, my wish and desire is, that my brother Thaddeus Freshwater should heir the whole of my estate as allotted to my children." Matilda married and then died, leaving an only child, which is still alive. Elizabeth married Henry W. Skinner, and they are the plaintiffs. Orange died without issue, and after the death of her sister Matilda. The executor of William W. Freshwater had assented to the legacies. The defendant has possession of the slaves, which were allotted to Orange in the division of the property under her father's will; he refused to surrender them to the plaintiffs, and they have brought this action of detinue to recover them. The Judge was of opinion that the plaintiffs were entitled to recover these slaves. And we are of the same opinion, upon the authority of Gregory v. Beasley, 36 N.C. 25, and Threadgill v. Ingram, 23 N.C. 577; Ferguson v. Dunbar, 3 Bro. C. C., 469, in note (Belt's Ed.); 2 Roper on Legacies, 322. On the death of Matilda, leaving a child, the hopes and interest of the testator's brother, Thaddeus (the ulterior legatee), were extinguished; because he could never take, unless all the daughters died without leaving issue. The three original legacies were vested, on the death of the testator, subject each to be divested, and go over to the survivor or survivors, on the death of either legatee without issue. In this case, Elizabeth is the only survivor, and must take the entire legacy that had been assigned to Orange, who died without issue. The Court regrets that the child of Matilda is excluded, but we can only construe wills, and are not authorized to alter or make them.
PER CURIAM. No error.
Cited: S. v. Norcum, 26 N.C. 257; Spruill v. Moore, 40 N.C. 287.
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