"I give unto my four children, Maria, Frederick, Mackey and Mary Lucilla Gregory, all my property, to be equally divided when my son, Frederick Gregory, arrives to the (26) age of twenty-one years old; and if one, or two, or three, should die under age or without lawful issue, for all the property to go to the surviving ones forever."
Frederick Gregory arrived at full age in March, 1835, soon after which, upon a petition filed for that purpose, the slaves belonging to the testator's estate were divided into four lots or shares, and the report thereof was confirmed at the February Term, 1836, of Chowan County Court. Maria married the defendant Beasley, arrived to the age of twenty-one years, had issue (a daughter, now alive), and died in January, 1834. Mary Lucilla Gregory died under age and without issue, in May, 1838. The widow of the testator married and had issue (a son, now living), Mackey Gregory, the brother of the intestate. Mary Lucilla filed this bill against her administrator and also against the *Page 16 representative of Maria Beasley, the next of kin of the said Mary Lucilla and Frederick Gregory, in which he claimed to be entitled to one-half of the share of the slaves allotted to the said Mary Lucilla, admitting that his brother, Frederick, was entitled to the other half. Answers were put in by the defendants, admitting the above facts to be true, and insisting upon the interests of the parties, respectively.
The cause was submitted, without argument, by There are three sets of claimants upon the share that fell to the intestate, Mary Lucilla Gregory — first, the two surviving brothers; secondly, the two surviving brothers and the defendant, the administrator of the deceased sister, Maria; thirdly, the next of kin of Mary Lucilla, under the statute of distributions.
The executory devise being good in law, the next of kin, as such, have, we think, no right to any of the share. It is very probable that the testator, if he could have foreseen the events which have happened, might have limited a part of this (27) fund to the child of Maria. But this Court can only construe wills; it is not allowed to make them for testators. The testator has said that if one, or two, or three, of his children should die under age or without issue, "for all the property to go to thesurviving ones forever." The meaning is that all the property, or original shares of one, two, or three of his children dying before coming to age or without issue, should go over to the child or children then surviving. The expression, "surviving ones," shows this to be his meaning.
We do not subscribe to the argument, made by the defendant's counsel, that the testator meant, if either one, two, or three of his children should die before the time of division, viz., before Frederick arrived to the age of twenty-one years, then only the interest of the person so dying should go over to the survivors; but not if any died after the time of division. We can find nothing in the will to tie up the contingency only to the time before the division. We think that the testator meant that the property which he gave to each of his children should be divested and go over to the survivors if any of the four children should die without issue before they arrive at the age of twenty-one years. This opinion is perhaps fortified by the fact that the testator must have known that when Frederick should come to *Page 17 the age of twenty-one years his daughter, Mary Lucilla, would only be twelve years old. Yet he says (in the clause) that if either die under age and without issue, the property is to go to the survivors, which tends to show that he did not mean to limit the contingency up to the time of the division only, but afterwards, also, if the event should occur. Mackey and Frederick, being the only children surviving at the death of their sister,Mary Lucilla, are entitled to the said share in moieties.
PER CURIAM. Decree accordingly.
Cited: Threadgill v. Ingram, 23 N.C. 579; Skinner v. Lamb, 25 N.C. 157.
(28)