#### SAMUHL WALLIS & OTHERS *vs.*JAMES COWELL, EXECUTOR, *&c.*

June 1843

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.

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.

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 he divided,*may claim a share thereof.

The cases of *Knight*v *Wall,*2 Dev. *&*Bat. 125. and *Vanhooh v Vanhook,*1 Dev. & Bat. Eq. 5S9, cited and approved.

Appeal from the Superior Court of Law of Currituck county, at Spring Term, 1843, his Honor Judge Pearson presiding.

This was a petition filed by all the. children who were alive and the representatives of those who were dead, to recover from the defendant, who was the executor of Sarah West, the amount of a legacy left by her to them. Sarah West died in the year 1814, and by her last will, whereof she appointed the defendant executor, after one or two specific bequests and a nominal legacy to her daughter Courtney, the wife of Solomon Wallace, she directed the residue of her estate to be appraised and divided into three parts, and after division then she bequeathed one third part to her daughter Sarah Hill, and the other two thirds thereof “to the heirs of Courtney and Solomon Wallace forever,” with *324a special injunction, that none of it should be sold, blit that it should be kept for the said heirs until they should come of a®e or ®°Iornon Wallace should die. The defendant proved the will, made sale of all the property, and, in 1817, paid over to Solomon Wallace the whole of the fund so bequeathed to his children. At the death of Mrs. West, Wallace and his wife had five children, the eldest nine and the youngest one year old, and they had other children, bom after Mrs. Wests’ death and before the eldest child arrived at the age of twenty-one years. These children, and the representatives of those who had died, in February, 1842, filed their petition against the executor for their legacy under their grand-mother’s will. The executor setup two defences; *first,*that he had paid the whole of it as aforesaid to Solomon Wallace, who was poor and who needed it for the support of his infant children, and who had applied it to their support; and *secondly,*that the petitioners were barred by the length of time. The court held that neither of these defences could avail the executor, and that he must account to the legatees. The court also held that only the children of Courtney and Solomon Wallace, who were in existence at the death of the testatrix, were entitled to claim the legacy; and, dismissing ¡he petition so far as respected the claim of those bom afterwards, gave a decree against the defendant in favor of those who were living at the death of the testatrix. From this decree the defendant appealed to the Su preme Court.

No counsel for the plaintiff.

*Kinney*for the defendants.

Gaston, J.

We think his Honok. erred, in excluding from the benefit of the legacy such of the children as were born after their grand-mother’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**325be *divided,*may claim a share thereof. See 1 Roper on Legacies, and the cases there cited. *Knight*v *Wall, 2*Dev. & Bat. 125. *Vanhook*v *Vanhook,*1 Dev. & Bat. Eq. 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 enquire 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 shewing, 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.

Pbh Curiam. Decree affirmed with costs.