#### MARK H. PETWAY, Ex’r. of JOHN POWELL *vs.*MARY G. POWELL et al.

Where a testator, in the first clause of his will, gave certain slaves to his wife for life, and afterwards to his children, “to be equally divided between them, share and share alike,” and, in a second clause, gave his children “all the balance of his estate, to be equally divided among them, share and share alike — and in case either one of his children should die, before it arrived at lawful age, and leaving no child or • children, then his or her share to be equally divided among the surviving ones;” *it was held,*that upon the death of one of the children, *all*the property bequeathed to such child by the will, and not the “balance’of the estate” only, mentioned in the second clause went to the survivors, particularly as the testator, in a subsequent clause, declared, that by the expression “ shares of his children,” he meant all that they took under his will.

Where a legacy is given to a described class of individuals, as to children, in general terms, and no period is appointed for the distribution of it, the legacy is due at the death of the testator; the payment of it being postponed to the end of two years after that event, merely for the convenience of the executor in administering the assets. The rights, therefore, of legatees, are finally settled and determined at the testator’s decease. Hence, children in existence at that period, or legally considered so to be, are alone entitled to participate in the bequest. And it makes .no difference in the application of the rule, although the terms of the bequest be prospective, as to children begotten or *in he begotten,*and no particular time of payment is mentioned, or where the gift is general to children, with a condition annexed to it, disposing of a child’s share, upon his dying under the age of twenty-one years; for the fund will nevertheless be divisible at the testator’s death, which necessarily excludes afterborn children.

John Powell died in the year 1838, leaving a will, in the first clause of which he bequeathed several slaves to his wife for life, and afterwards to his children, to be equally divided between them, “ share and share alike,” and then proceeded as follows;

“ Item 2. I give and bequeath all the balance of my estate to my children, tó be equally divided among them, share and share alike. — and in case either one of my children, should die before it arrives at lawful age, and leaving no child or children, then their share to be equally divided among the surviving ones. The whole of this item is subject to a latter clause or the conditions stated in the next item or clause of my will.”

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      *<!*Item 3. My will and intention is, that my children shall be equally well provided for, and no one better than auother, whether they, or any of them, take from me, or under the following clause of Mrs. Mildred E. Pryor’s will, viz: *‘*Item 2nd. I leave all the balance of my estate, principally of money and slaves, to John Powell in trust, for the benefit of the children of his present wife, my daughter, Mary Gi Powell;’ wherefore, I direct that in case the property left by Mrs. Pryor to me, in trust for the children of my present wife, should belong to only a part oí my children, he or they thus receiving property under that will, shall have none of my estate, unless he or they shall pay or deliver over to my other children who may not be entitled under Mrs. Pryor’s will, as much of the property in value by me bequeathed and devised to him or them as will make the shares of my children not entitled, equal to the shares of those entitled. By the expression, shares, as applied to my children who may be entitled under Mrs. Pryor’s will, I mean the property which they may get under that will, added to that which I give them.”

The testator left surviving him bis widow, Mary G. Powell, and three children, John W. Powell, Mary E. Powell and Martha P. Powell, the latter of whom subsequently died, and administration upon her estate was granted to Jeremiah' Brinkley. Mrs. Mildred E. Pryor,- whose will was referred to in that of the testator, died on the 14th day of August, 1834, having executed her said will the day before. At that time, her daughter, Mrs. Powell, had but one child, to wit, John W. Powell, but was then *enciente*of her second child, Mary E. Powell. Martha P. Powell, the third and last child of Mrs. Powell, was not born until more than two years af-terwards.

The bill was filed by the executor of John Powell against his widow, and the two living children and the administrator of the deceased one, for the purpose of procuring the advice of the Court upon the construction of the will of his testator in the following particulars:

1st. Whether *all*the property bequeathed to the children passed to the surviving children upon the death of one of *310them, in exclusion of the widow; or whether only that por-of the testator’s property passed, which was embraced in secon(j clause of his will, under the description of “ the bal anee of his estate.”

2ndly. Whether, under the will of Mrs. Pryor, referred to ip that of the testator, the decased child, Martha P. Powell, was entitled as one of the children of her daughter, Martha G. Powell.

*B. F. Moore*for the plaintiff.

*Badger*for Mary G. Powell and the Adm’r. of Martha P. Powell.

*Iredell*for the other defendants.

Daniel, Judge..

The first question, which the parties wish this court to decide is, whether the child Martha’s portion of the vested remainder in the slaves, given by Mr. Powell, in his will to his wife for life, passed, on Martha’s death, to her brother and sister, John and Mary, with the “balance” of the property bequeathed to her (Martha,) under the second clause in the will of her father; or whether her mother came in, as a distributee of Martha’s share of the remainder of thesé slaves. The testator, in his will, speaks thus: “And, in case either of my children should die before it arrives at lawful age, and leaving no child or children, *then their share*to be equally divided among the surviving ones. . It is contended for the defendants, the mother and the administrator of the deceased child, that the share here mentioned was the share only of that “balance” of the testator’s estate, which he bequeathed to Martha, in the second clause in the will. This Court is, however, of a different opinion. We think that all the property in possession or remainder, which the child Martha took as a legacy under her father’s will, was, in his contemplation, *“*her share” of his estate; and, in the event which has happened, passed, by force of this disposition, tb the surviving brother and sister. It is true, that the testator says his three children shall have the property given by the second clause in his will, “ share and share alike.” By this expression, he meant only that it should be equally divided between them. But, when he comes to speak of the possible *311event of one of his children dying under age, he then gives to the words, “ *then their share,”*a more enlarged meaning. He intended, by these words, to comprehend all the property which that child, so dying, derived under his will. This intention is manifested, not only by these words, but by others, in a latter part of the will, in which the testator declares what le means by a share of any of his children. The part to which we refer, is that wherein, in consequence of a doubt whether the property conveyed to him in trust for his children, by Mrs. Pryor’s will, belonged beneficially to all oí them, he made a provision for producing equality, so as to make their shares, both of his and her property, equal. “ By the expression, shares,” such is the testator’s language, “ as applied to my children who may be entitled under Mrs. Pry- or’s will, I mean *the property*which they may get under that will, added *to that which Igive them.”*

The second question arises on the proper construction of a clause in the will of Mrs. Mildred E. Pryor. The clause is as follows:

> “ Item 2nd. I leave all the balance of my estate, consisting principally of money and slaves, to John Powell, in trust, for the benefit of the children of his present wife, my daughter, Mary G. Powell.”

At the death of Mrs. Pryor, her daughter, Mrs. Powell, had one son born, (John,) and she was then pregnant with her second child, (Mary.) Mrs. Powell subsequently had a third child, (Martha,) who is now dead. The question asked is, whether Martha was entitled to a share of her grandmother’s property, thus bequeathed? Where a legacy is given to a described class of individuals, as to children, in general terms, and no period is appointed for the distribution of it, the legacy is due at the death of the testator; the payment of it being merely postponed to the end oftWo years after that event, for the convenience of the executor in administering the assets. The rights, therefore, of legatees are finally settled and determined at the testator’s decease. Upon this principle is founded the well established rule, that children in existence at that period, or legally considered so to be, are alone entb tied to participate in the bequest. 1 Roper on Legacies 48— *312
      *Vanhook*vs. *Rogers,*3 Murph. Rep.*178*— Jourdan vs. *Green,*1 Dev. Eq. Rep.*270*— Knight vs. *Wall, 2*Dev. & Bat. Rep. 125. A child in *ventre sa mere*can take a share jn a fund bequeathed to children, under a general description oí “ children.” *Doe*vs. *Clarke, 2*Hen. Black. Rep. 399— 2 Bro. Ch. Cas. 320 — 2 Ves., Jim. 673 — 1 Roper on Legacies 52. It makes no difference as to the application of the ru^ej although the terms of the bequest be prospective, and n0 particular time of payment is mentioned; for the fund wilL *r*, , , , , ’ , , , divisible at the testators death, which necessarily excludes afterborn children. If, then, a legacy were « to the children of my daughter, Mary, begotten or *‘to be*begotten,’ as in the case of *Spracklin*vs. *Rainer,*1 Dick. Rep. 344, children coming into existence after the death of the testator would be excluded, 1 Roper 49. This rule equally applies whére the gift is general to children, with a condition annexed to it, disposing of a child’s share upon its dying under the age of twenty-one. The principle is this: the legacy being immediate to children, the period of vesting and division, unite at the same point, viz. at the death of the testator; whence it follows that a child born after that event, must be excluded. 1 Roper *49*— Davidson vs. *Dallas,*14 Ves. Jun. *576*— Scott vs. *Harwood,*5 Madd. 332. We are of the opinion that only the children, John W. Powell and Mary E. Powell, took the legacy under the will of Mrs. Mildred E. Pryor; and that Martha P. Powell, bom after the death of Mrs. Pryor, had no interest in this fund, and consequently, nothing in it passed to her administrator.

A child in *mere*will in'»efundare bequeathed to children, scHption of

Pee. CuRiaiH. Decree accordingly.