#### WILLIAM FAIRLY *against*ARCHIBALD PRIEST *and others.*

Where a testator by his will gave property to a son and three daughters, with a provision that, on the death of either of them intestate,'or without *heirs of his or her*body, his or her share should go over, it was *Held*that the intention was not that it should go over on the death of the mother of an illegitimate child, but that the latter was entitled to his mother’s share.

Cause transferred from the Court of Equity of Richmond county.

This cause was before the Court, December Term, 1856, ante, 21.

The bill alleges that the plaintiff is the illegitimate son of Elora Priest, who afterwards intermarried with Daniel Lytch; that Angus Priest, her father, devised and bequeathed as follows:

*“First,*I give and bequeath to my son, Archibald Priest, all my lands with their improvements, reserving the right and privilege to my daughters, Elora Priest, Elizabeth Priest and Sarah Priest, to remain in the occupancy of the said land in common with my son Archibald, as long as they or any of them remain unmarried.”

*“ I*give and bequeath to my daughter Sarah Priest, my negro boy Tom ; and to my daughter Flora Priest, my negro boy "Wilson ; and to my daughter Elizabeth Priest, my negro boy Allen ; and my will and desire is, that my negro woman Sylvia remain on the plantation as the common property of my son Archibald Priest and his three first mentioned sisters, as long as any of them remain unmarried here; and should they all, at any time, marry or leave the place, then to be equally divided between them; and in regard to the future increase of my negro woman Sylvia, my desire is that her first child be given equally to my three grand-children, Daniel Snead, Anna Snead and Mary Snead ; that her second child be given to my daughter Sarah, and all her future children belong equally to my son Archibald and his three sisters, Flora, Elizabeth and Sarah. My will and desire is that the whole of my *384stock, not already mentioned, of horses, cattle, hogs and sheep, household furniture and the goods and chattels which I possess, shall be owned and possessed by my three first named daughters and my son Archibald Priest, in common, except one cow and calf, which I direct to be given to my grand-son, William Eairley ; and should my son Archibald Priest, or either of my three first-named daughters, die intestate, or without heirs of their own body, the estate of the deceased person or persons to be inherited by the surviving ones of them alone, or their legitimate heirs.”

Previously to the intermarriage of the said Daniel Lytch and Plora Priest, they entered into a marriage contract, by which all the property which she had received or might receive from her father’s estate, was conveyed to Archibald Priest, as trustee, for the sole and separate use of the said Plora for her life, and after her death to “ descend to, and be enjoyed by, the heirs of the said Flora, in the same manner as if she had remained single and unmarried.”

The said Archibald accepted the trust and had this deed duly authenticated.

Elizabeth Priest died intestate in the year 1853, whereby her interest vested in her brother Archibald, and her two sisters, Flora and Sarah. Shortly after the death of Elizabeth, Flora died intestate, leaving her brother Archibald and her sister Sarah and the plaintiff, William Eairley, illegitimate child of Flora, her surviving.

Besides the two children bequeathed to the Sneads and to Sarah, the woman Sylvia had six others, which went into the possession of Archibald Priest, and he claims the same as belonging to himself and his sister Sarah in absolute right, and refused, on demand, to account with the plaintiff for Flora’s share.

Archibald Priest, Sarah Priest, Daniel Lytch, the husband of Flora, and the administrator of Elizabeth, w7ere made parties defendant, and judgment, pro confesso, w7as taken as to Daniel Lytch, the administrator of Elizabeth.

The plaintiff, having administered on the estate of his mother, *385claimed the property in question in that capacity ; likewise, in his own right, under the provisions of the deed between Daniel Ly tell and his mother, the said Flora. The prayer was for an account and for general relief.

The cause came to tiiis Court *formerly upon*demurrer, which was over-ruled, ante 21, and was remanded to the Court below.

The answers of the defendants, disclosed no fact varying the above statement of'the case. It was set down on bill and answer. The only question was as to William Fairley’s right to succeed to the property of his mother, the said Flora.

*Kelly*and *Banks,*for the plaintiff.

*Troy,*for the defendants.

Battle, J.

When this case was before us on a demurrer at December Term, 1856, (see ante 21,) it was held that the plaintiff was entitled to the share which accrued to the mother as one of the survivors upon the deatli of Elizabeth Priest, intestate and without issue. The question whether the plaintiff is entitled to the original share given to his mother by her father’s will, and which was there said would bean interesting question of construction, is now presented to us by the pleadings which followed the over-ruling of the demurrer.

Upon a fair construction of the will of Angus Priest, and the operation of the 4th section of the 64th chapter of the Rev. Statutes, (see also Rev. Code, ch. 64, sec. 5,) we are satisfied (hat the plaintiff’s claim *to*the original share of his mother, is as well founded as it is to her accrued share.

The property given by the will to the testator’s son and three daughters, is given to them absolutely, but with an executory bequest over to the survivors upon the death of either, intestate and without heirs of his or her own body. The expression without heirs of their own body, manifestly means without issue or children. Now, it is clear that, if the plaintiff had been legitimate, his mother’s portion would not have been subject to the limitation over to the surviving *386brother and sister, but would have remained her absolute property, and, of course, would have devolved upon her personal representative, and then have gone to the plaintiff as her next of kin. But, being illegitimate, he could not at common law have been regarded as the heir of her body, that is, her issue or child, and she would have been deemed to have died without any such heir, issue, or child.

This rule of the common law has been altered by the section and chapter of the Eev. Statutes, to which we have referred, and which was taken from the act of 1799, (ch. 522, of the Rev. Code of 1820.) The effect of that act has been to legitimate the plaintiff as to his mother, and to make him, in law, the heir of her own body, or her issue or child. See *Kimbrough*v. *Davis,*1 Dev. Eq. 71; *Coor*v. Starling, 1 Jones’ Eq. Rep. 243. This operation of the law seems to be in accordance with the intention of the testator, who, in his will, recognizes the plaintiff as his grand-son, and after using the words “without heirs of their own body,” in connection with the death of one or more of the legatees, limits the property to the “surviving ones of them alone, or *their legitimate heirs.”*He thus seems to have understood the meaning of the term “legitimate,” and if the plaintiff’s mother had died before, instead of after her sister Elizabeth, it might have excluded him from the succession to the share of the said Elizabeth, limited to his mother, or her “legitimate heir.”

The ante-nuptial marriage settlement made between the plaintiff’s mother and her husband, Daniel Lytch, had the effect to secure the property in question to her sole and separate use, and he sets up no claim to if; the consequence is that the plaintiff, as the administrator of his mother, is entitled to the said property, and to all the necessary accounts from the parties who'have the possession of it; and a decree to that effect may be drawn, and the cause will be retained for further directions upon the coming in of the report.

Pee CueiaM, Decree accordingly.