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 these 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, to 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 *Page 257 alike." By this expression he meant only that it should be equally divided between them. But when he comes to speak of the possible event of one of his children dying under age, he then gives (311)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 he 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 of 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. Pryor's will, I mean the property which they may get under that will, added to that which I give 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 2d. 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 of two 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 entitled to participate in the bequest. 1 Roper on Legacies, 48; Vanhook v. Rogers, 7 N.C. 178; Jourdan v. Green,16 N.C. 270; (312) Knight v. Wall, 19 N.C. 125. A child in ventre sa mere can take a share in a fund bequeathed to children under a general description of "children." Doe v. Clarke, 2 H. Black., 399; 2 Bro. Ch. Cas., 320; 3 Ves., Jr., 673; 1 Roper on Legacies, 52. It makes no difference as to the application of the rule although the terms of the bequest be prospective, and no particular time of payment is mentioned; for the fund will nevertheless be divisible at the testator's death, which necessarily *Page 258 excludes afterborn children. If, then, a legacy were given "to the children of my daughter, Mary, begotten or `to be begotten,' as in Spracklin v. Rainer, 1 Dick., 344, children coming into existence after the death of the testator would be excluded, 1 Roper, 49. This rule equally applies where 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 v. Dallas, 14 Ves., Jur., 576; Scott v. 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, born after the death of Mrs. Pryor, had no interest in this fund, and, consequently, nothing in it passed to her administrator.
PER CURIAM. Decree accordingly.
Cited: Nelson v. Nelson, 41 N.C. 16; Hayley v. Hayley,61 N.C. 187.
Dist.: Hinton v. Lewis, 42 N.C. 184; Robinson v. McDiarmid,87 N.C. 461.
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