The following case agreed was submitted for the judgment of the court:
The defendant, with his wife, Eliza, by their deed of bargain and sale, executed September 23rd, 1857, and perfected by the privy examination of the wife, bargained and sold to the plaintiff and his heirs, certain land, lying in the town of Pittsboro', being the same mentioned in the plaintiff's declaration, and by the said deed covenanted as follows: "And the said John Q. A. Leach, for himself and his heirs, doth covenant with the said John A. Moore and his heirs, that the said Eliza, at and immediately before the time of the sealing and delivery of these presents, is, subject to the said covenantor's right of entry, seized of a good, sure, perfect and indefeasible estate in fee simple, in the premises hereinbefore, by these presents, granted and sold, without any manner of remainder or remainders over, and also that the said John Q. A. Leach and wife Eliza, have now, or hath now, a good right and title, and lawful power and authority to grant, bargain and sell the said premises, and every part thereof, unto and to the use of the said John A. Moore and his heirs, according to the true meaning of these presents."
The only title claimed or set up by the said grantors, or either of them, at the date of these covenants, was under the will of George W. Thompson, the father of the wife of the defendant. The parts of the will, necessary to this case, are as follows:
"Item 3. I give and devise to my beloved daughter Eliza *Page 89 Ann Leach (the wife of John Q. A. Leach,) and her children, the lawful heirs of her body, my houses and lots in the town of Pittsborough, whereon the said Leach now lives, together with all that appertains thereto, * * * to her, the said Eliza Ann Leach, and her children forever."
"Item 4th. I give and bequeath to my son George W. Thompson, the dwelling-house wherein I formerly lived, and wherein the said George W. Thompson is now living, with the plantation and all the lands belonging to my several tracts adjoining, containing fifteen hundred acres, be the same more or less, to him, the said George W. Thompson, his heirs and assigns forever."
At the time of the making of this will, Mrs. Eliza Ann Leach had three children, who all survived the testator.
It is agreed, that if, by the above will, Mrs. Leach took a fee simple estate in the premises, a judgment of nonsuit is to be entered, otherwise a judgment is to be entered for the plaintiff, and an enquiry of damages to be awarded as upon a judgment of nil dicit or non sum informatus.
Upon consideration of the premises, his Honor being of opinion with the defendant, gave judgment of nonsuit, and the plaintiff appealed. As early as the time of Lord COKE, it was held in Wild's case, 6 Rep. 17, that where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes an estate tail; for it is said that "the intent of the devisor is manifest and certain that the children (or issues) should take, and, as immediate devisees, they cannot take, because they are not in rerum natura; and by way of remainder they cannot take, for that was not his (the devisor's) intent, for the gift is immediate; therefore such words shall be taken as words of limitation." But, it is said in the same case, that "if a man devise land to A and his *Page 90 children or issue, and he then has issue of his body, there, his express intent may take effect according to the rule of the common law, and no manifest and certain intent appears in the will to the contrary; and, therefore, in such case, they shall have but a joint estate for life." See also Co. Litt. 9 a. This doctrine was recognized and made the rule of decision in the case of Oates v. Jackson, 7 Modern Rep. 439; S.C. 2 Strange's Rep. 1172. There, the testator devised lands to his wife for her life, and after her decease, to his daughter B and her children, on her body begotten, or to be begotten by W, her husband, and their heirs forever. B, the daughter, had one child at the date of the will, and afterwards others; and it was held that she took jointly, with them, an estate in fee. See also Annable v. Patch, 3 Pick. Rep. 360, where the same doctrine has been adopted in Massachusetts.
The same rule applies to bequests of personalty to a mother and her children, and if there be children living at the death of the testator, she and her children will take equally, unless there be something peculiar in the will, indicative of an intention in the testator that she should take for life with a remainder over to the children; 2 Jar. on Wills, 316 and 317; Davis v. Cain, 1 Ire. Eq. Rep. 304; Chesnut v. Mears, (in Equity) decided at the present term.
In the case now before us, there is nothing to prevent the application of the rule; on the contrary, it is manifest from the will, that the testator intended that his daughter and her children should take together the house and lots and other lands which he devised to them. The children were living at the time the will was made, and also at the death of the testator, and the words of the devise are in presenti "to her and her children forever." In another part of his will, he gives to his son a tract of land, to him, "his heirs and assigns forever," showing that he well knew how to use words of limitation for the purpose of conferring upon his son an estate in fee.
The judgment of the Superior Court is reversed, and upon the case agreed, judgment is given here for the plaintiff; and *Page 91 this must be certified to the court below, for the purpose of enabling him to have an enquiry of his damages.
PER CURIAM, Judgment reversed.