Henry Bright devised the premises as follows: "I lend the tract of land I now live on unto my wife during the time she remains my widow. I also lend negro woman Clary and child, Pleasant, Major, Sylvester, Ann, and Amanda to my wife, Polly, as long as she lives my widow. Immediately after the marriage of my widow, or directly (345) after the death of my wife, Polly, I give all the before-mentioned estates, within doors and without, to my loving wife Polly's heirs by consanguinity, with the exception of Elizabeth McPherson, and I give and bequeath to her one dollar." The testator died on 15 May, 1837, and his will was proved on the fourth Monday of that month, and his widow then dissented from it; and in August following she intermarried with one Andrew Flora, and shortly afterwards she was delivered of a child, of which she was pregnant at the death of the testator and the making of his will. The child lived about six months and died, and was the first child the testator or his wife had. Within a few months after *Page 236 the death of that child, Flora and wife had issue another child, the lessor of the plaintiff. Elizabeth McPherson and four other persons were the brothers and sisters of testator's wife, who were living when he made his will and died. The defendant is the heir ex parte paterna of the testator's posthumous child, who was the heir of the testator. Under the instructions of the court that the lessor of the plaintiff was entitled to the premises, the jury found for the plaintiff, and after judgment the defendant appealed. The Court hitherto decided on this will that Bright's posthumous child took the premises under the description of "Polly's heirs by consanguinity," as between him and his mother's brothers and sisters. Watkins v. Flora, 30 N.C. 374. It now appears that she had another child by her second marriage, who is the lessor of the plaintiff, and is stated to have been born a few months after the death of (346) her child by the first marriage; and it was held by his Honor that he is entitled to the premises. It does not appear how it was supposed the lessor of the plaintiff derived title — whether as the heir of his half-brother or as a purchaser under Bright's will, within the description, "Polly's heirs by consanguinity." The Court, however, is of opinion that he cannot claim in either way, and that the premises belong to the defendant.
The premises could not descend to the plaintiff unless he was born within ten months after the death of his half-brother, according to the seventh rule of descent, and, of course, it lies on him to show his birth to have been within the period prescribed; which the Court probably would not be at liberty to infer from the vague statement that he was born "within a few months" after the death of the other. But the fourth rule of descent clearly excludes the lessor of the plaintiff from claiming by descent from his half-brother, as the latter derived the premises from his father by descent or devise, and therefore they descended from him to his heirs, who were of the blood of the father. Supposing the premises, then, to have vested in Bright's child, the defendant is entitled to them.
Nor can the lessor of the plaintiff claim under the will as purchaser. It is to be observed, first, that it was clearly erroneous to hold that in that character the lessor of the plaintiff was entitled to the whole of the premises, for, upon his own argument, that he was an "heir of Polly," and therefore was entitled the other child was also entitled to a moiety, and that descended to the paternal relations. Consequently, the lessor of the plaintiff could, at most, be only entitled to an undivided moiety *Page 237 of the premises, and could not maintain this suit without evidence of an actual ouster that part. But the Court is of opinion that the lessor of the plaintiff is not entitled at all under the will. The devise is to the wife for her life or widowhood, and after her death or marriage, in fee to her heirs by consanguinity, as (347) purchasers. That was held in the former case; and further, that the child ventre matris was in rerum natura at the death of the testator, when the will took effect, and that he took a vested estate in exclusion of his uncles and aunts, and of all others. But it is said it was thus laid down as between the first child and the uncles and aunts, and not to the exclusion of the wife's second child. The same reason, however, on which the first child took in exclusion of the wife's collateral relations made it take in exclusion of a second child; that is, that the gift over was in remainder and vested in the child in ventrematris immediately on the death of the testator. It is true, it was formerly held in the courts of Westminister that such a child did not take immediately under a will, but by way of executory devise. But that was overruled in Reeve v. Long by the House of Lords, and the point has been considered as settled ever since, as may be seen in 2 Bl. Com., 169, note, and in the cases cited in the opinion before given on this will. This is clearly not an executory devise, but a case of a plain remainder, either vested or contingent, after the death of the wife, or after her marriage, if it should first happen. It was treated before as a vested remainder, and the only question was, which of two classes of persons took under the description, who were both in being at the death of the testator. If a vested remainder at that time in either set of those persons, it necessarily followed that future issue of the wife could not come in, as there is nothing in the will to prevent its going into full effect immediately at the death of the testator. But suppose it to have been contingent at first; still the lessor of the plaintiff cannot take as one of the remaindermen, because the particular estate of the mother, whether determined by her dissent to the will or by her marriage, did not continue to his birth, and consequently his contingent remainder would have been defeated. In no point of view, therefore, could the plaintiff be entitled, and the judgment must be reversed and a (348)
PER CURIAM. Venire de novo. *Page 238