#### HENDERSON SIMPSON *against*M. B. SPENCE AND WIFE AND OTHERS.

Where a testator gave certain property to his wife for life, and after her death, in trust for the children of one of his sons, to be divided among them as they come to age, it was *Held*that all the children bom before the eldest arrived at age, were entitled to share in the property.

Where a testator gave property to children, as a class, and directed the profits to be “ applied annually to their use,” it was *Held,*that at the division of the property, the surplus rents and; profits should be so-divided that each child should get only a *pro rata*share of what had accrued since its birth.

Cause removed from the Court of Equity of Chowan county.

Exuni Simpson of the county of Chowan, died in said county, in the year, 1844, leaving a last will and testament, in which be devises and bequeaths all his property, real and personal, to his wife, Margaret Simpson, for her life, and after-certain specific devises and bequests, he proceeds in the 12th section of said will, as follows: “It is my will and desire that the remainder of my estate, after the decease of uty wife, shall be laid off in nine parts, as equally as may be, seven of which shall be equally divided among my sons, (naming them) and *209the other two parts, to be taken and held in charge and care of my son, Henderson Simpson, one of the parts for the use and benefit of the children of my daughter, Mary Whidbee, lawfully begotten of her body, the proceeds, if any, to be annually applied to their use, and the principal divided among them as they come to age. One other part to the use and benefit of my son Richard D. Simpson’s children, the proceeds, if any, to be annually applied to their use, and the principal among them as they may arrive at age.

It appears, that at the death of the testator, Exum, Richard D. Simpson had two children, Emily Ann, who intermarried with the defendant, M. B. Spence, and Mary Elizabeth, who intermarried with defendant, J. H. Garrett; and that at the time of the death of Margaret Simpson, the tenant for life, the wife of Richard D. Simpson was *enciente*with a third child, Sarah Jane Simpson, who is one of the defendants in this suit; and further, that two other children, to wit, Martha "Virginia, and Elizabeth Rebecca, were born to the said Richard D. Simpson, before his eldest child, the said Emily Ann, attained the age of twenty-one, which she did on the 16th of January, 1859.

The plaintiff, the trustee, avers in the bill, that the executors have assented to this legacy,'and that he has the same in his hands, ready to pay it to whomsoever may be entitled, and prays the instruction of the Court as to his duty in the premises. He prays to be informed whether the fund is to be divided between the two children born at the death of the testator, alone, or whether the child with which the wife of Richard Simpson was enciente, at the death of the tenant for life, is entitled to a share, and if so, whether the two born since that time, but before the eldest came of age, is also entitled to like shares. He also prays to be informed whether, if they all take, he is, in the division of the rents and profits, to divide the same among them all without reference to tiré time of their births, or whether each shall receive a *pro rata*share of the rents and profits, accruing since her birth.

*210
      *Hines*and *William A.*Moore, for the plaintiff.

*H. A.*Gilliam, for the defendant.

MaNly, J.

If, the bequest of Exum Simpson, for the benefit of the children of his son Richard, had been directly to them as a class, without the creation of any intermediate particular estate, the property, in seeking an ownership upon the death of the testator, w'ould have vested absolutely in such of the children of Richard as might then be in being. Rut, in as much as it is a settled rule of construction, based upon justice, and the presumed intention of every testator, to include as man3 as can be, consistently with rules of law, within the class, it will follow that if there be an intermediate estate after which the remainder is limited to the class, all who shall come into being before the termination of the intermediate estate, will be counted as objects of the testator’s bounty.

And, so in conformity again -with this governing rule of construction, if there'be not only an intermediate estate, but the remainder be put in trust for the class, and made divisible as the individuals shall respectively arrive at twenty-one years of age, all of the class will take who shall have been born before the period for division arrives; *Knight*v. Knight, 3 Jones’ Eq. Rep. 167; *Clark*v. *Clark,*11 Con. Eng. Chan. 318; S. C. 8 Simons 59.

We are of opinion, therefore, that all the children of Richard Simpson, mentioned in the bill, are entitled to share alike in the principal fund held by the complainant for them. — > With respect to the possible rights of after-born children (should there be any,) to be let into the enjoyment of the fund, through the continuing trust in the complainant, we express no opinion. It may never become, in the case before us, of any practical importance.

The surplus of income, we are of opinion, should be divided amongst the children as it would have gone, if it had been applied, from year to year, as directed. This disposition of it, is governed by the apparent intention of the testator as gathered from the words of the will. The testator directs the *211
      *'annual*application of tbe income to the use of tbe children; and the principal fund, (simpliciter) to be divided when the period for division arrived.

Let the income or proceeds, remaining on hand, go to those who would have received it, had it been annually applied.-— Anddet one fifth part of the principal be allotted to the daughter, who is now of age. The costs should be paid out of the fund.

Pee CueiaM, Decree accordingly,