1. Bequest of negroes, to be divided between the children of A., when one of them arrives at the age of sixteen: Held, that children born after the death of the testator, but before the time of division, are entitled to a share.
2. A legacy to a class of persons, without any time fixed for its division, is to be divided among the legatees in esse at the testator's death.
The facts were that George B. Newbern made his last will on 20 September, 1824, in which he bequeathed as follows: "I give my (223) negroes to be equally divided, when Sarah A. Fleetwood arrives to 16 years, between Parthenia Fleetwood's children." At the date of the will Parthenia Fleetwood had four children, who are the plaintiffs. After the death of the testator, but before Sarah A. Fleetwood arrived at the age of 16, Parthenia Fleetwood had two other children, who are the defendants. And the only question was whether the slaves were to be divided among all the children or between those only who were born at the death of the testator.
His Honor directed the division to be made between all the children, and the plaintiffs appealed.
DANIEL, J., after stating the case:
Where a legacy is given to a class of individuals, as to children, in general terms, and no period is appointed for its distribution, it is due at the death of the testator. The payment of it being postponed for one year after that event, only for the convenience of the executor, in administering the assets, the rights of legatees are determined at the testator's decease. Crone v. Odell, 1 Ball Beatty, 459. Upon this principle is founded the well established rule that children in existence at that period, or legally considered so to be, are alone entitled to participate in the legacy.
It is now also settled that when legacies are given to a class of individuals generally, payable at a future period, as to the children of B., when the youngest shall attain the age of 21, or to be divided among them upon the death of C., any child who can entitle itself under the description, at the time when the fund is to be divided, may claim a share, viz., as well children living at the period of the distribution, although not born till after the testator's death, as those born before, and living at the happening of the event. This rule is founded upon the anxiety of a court of equity to effectuate the intention of (224) testators in providing for as many children as possible. It therefore does not unalterably confine the number to the time when the interests vest, which in general is at the death of the testator, but prolongs the period to the happening of an event upon which a determinate share of the fund becomes payable. Andrews v. Partington, 3 Bro., 402; Vanhook v. Roper, 5 N.C. 178. All the children of Parthenia Fleetwood that were in existence, or legally considered so to be (as a child in ventre sa mere) when Sarah Ann Fleetwood arrived at the age of 16 years, are entitled to a share of the slaves bequeathed in the will of George B. Newbern. The decree made in the court below was correct, and is
PER CURIAM. Affirmed.
Cited: Meares v. Meares, 26 N.C. 197; Irvin v. Clark, 98 N.C. 445; Wise v. Leonhardt, 128 N.C. 291; Bowen v. Hackney, 136 N.C. 191.
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