#### JOSEPH KNIGHT *and others against*JOHN L. KNIGHT *and others.*

A limitation by will, to the *heirs*or *the heirs of the tody*of one known by the testator at the time of the making of the will to be alive, is construed *168to mean the children, and the descendants of deceased children, of such person.

Where a legacy is given to a class,.if there be no intermediate estate, the class is enumerated at the death of the testator; but where there is an intermediate estate, the class is enumerated at *the end*of such intermediate estate.

The next of kin of one of the class, who. is since dead, whether born before the termination of the intermediate estate,or after that event, are entitled to his. share.

Cause removed from the Court of Equity of Edgecombe county.

In the- last will' and testament of Lewis Barlow is contained the following clause :

“ I leave to my son Billy Blount Barlow, during bis natural life, the following negroes, namely : Paul, Prank, Maria, and Sam, and increase of any; and should my son aforesaid have a lawful'Adir or *hews*begotten of his body, then the above-named negroes to- them and their heirs forever ; but in case my son aforesaid die without lawful heirs as aforesaid,, the above-named negroes I give to the heirs lawfully begotten of the body of my daughter Louisa Knight, to them and their heirs forever.” In another part of the will is a bequest to-Louisa Knight.

The legatee for life, B. B. Barlow, received the said slaves, with the assent of the executor, and hold them for several years, when he died intestate, without leaving any issue or the descendants of such. At the death of the tenant for life, Mrs. Louisa Knight had the following children, who-were all then alive, to wit, John L. Knight, David B. Knight, Sarah L. Knight, Luther B. Knight and Peter E; Knight;, but, after that event, the said Peter E. died, and Joseph Knight administered on his estate. These children of Mrs.. Knight-, and the administrator of the deceased, P. E. Knight,, are made defendants.

The plaintiffs are the children of Mrs. Louisa. Knight also, but born since the death of the holder of the life-estate, Billy B. Barlow.

*169The bill seeks for tbe plaintiffs, as constituting part of the class described, a share of the said slaves, and a share of the part of Peter E. Knight, deceased, of whom they, with the defendants, are the next of kin.

The defendants answered, insisting that only such children of Louisa Knight- as were born when B. B. Barlow died, can, by the rules of interpretation applicable to this will, come within the description of the persons entitled.

The cause was set down for hearing upon the bill, answer and exhibit, and sent to this Court for trial.

No counsel appeared for the plaintiffs in this Court.

*B. F.*Moore, for defendants.

PeaesoN, J.

It appears by the will that the testator knew that his daughter Louisa was alive, hence the limitation to the heirs of her body must mean her children or descendants, (so as to take in a grand-chilcl, if the parent be dead). This is a familiar rule of construction, as a -consequence of the axiom *nemo est hieres viventis.*

We have then, a limitation of slaves to Billy B. Barlow for life, remainder to the children of Louisa Knight. Barlow is dead. The defendants are children of Mrs. Knight, who were born at the time of his death; the plaintiffs are children born since his death. The question is, do all the children take, or only those who were *in esse*at the time the particular estate terminated .? Where a legacy is given to a class, e. g. to the children of A, and no particular estate is interposed, so that the question of ownership must be determined at the death of the testator, only such children of A who are *in esse*at the time and can answer to the call for an owner, are entitled to the property. This results from the fact that property, at all -time, must have an owner, so as to belong to some one. After personal property .once vests in possession, the ownership is fixed and cannot be divested without the act of the •owner. A different rule has been applied to land, which is allowed, in the case-of-a descent-castupona presumptive heir, *170to pass from bis possession if a nearer lieir be born, or to open and take in an beir of equal degree as a co-parcener. But tbis rule bas no application to personal property.

"Where, however, a particular estate is interposed, as in our case, the taker of the first estate answers the purpose of filling the ownership, and bolding the possession ; so, although the limitation over is vested, there is no absolute necessity of fixing the ownership in regard to it. With a view of taking in as many of the class as possible, so as to carry into effect the intention, as far as the rules of law will allow, the call for the owners of the ultimate estate is not made until the first estate falls in, and all who answer the description at that time, are entitled. This doctrine is stated in all of the text writers. By it the children of Mrs. Knight born after the death of Billy B. Barlow are excluded.

It is set out in the bill that Peter E. Knight, who is dead, and of whom Joseph Knight is the administrator, was a child of Mrs. Knight, and was living at the death of Barlow. It does not appear at what time this child died. Of course any of the children of Mrs. Knight, who were living at the death of Peter E. Knight, although born after the death of Barlow, are entitled to a share of his share as his next of kin, if he left no children. As to this there may be a reference to ascertain the facts, so as to supply the omission in the pleadings.

Pee Cueiami, Decree accordingly.