Exum Simpson, of the county of Chowan, died in said county in 1844, leaving a last will and testament in which he devises and bequeaths all his property, real and personal, to his wife, Margaret Simpson, for her life, and after certain specific devises and bequests, he proceeds in the twelfth section of said will as follows: "It is my will and desire that the remainder of my estate, after the decease of my wife, shall be laid off in nine parts, as equally as may be, seven of which shall be equally divided among my sons (naming them) and the other two (209) parts to be taken and held in charge and care of my son, Henderson Simpson, one of the parts for the use and benefit of the children of my daughter, Mary Whidbee, lawfully begotten of her body, the proceeds, if any, to be annually applied to their use and the principal divided among them as they come to age. One other part to the use and benefit of my son Richard D. Simpson's children, the proceeds, if any, to be annually applied to their use and the principal among them as they may arrive at age."
It appears that at the death of the testator Exum, Richard D. Simpson had two children — Emily Ann, who intermarried with the defendant M. B. Spence, and Mary Elizabeth, who intermarried with defendant J. H. Garrett — and that at the time of the death of Margaret Simpson, the tenant for life, the wife of Richard D. Simpson was enciente with a third child, Sarah Jane Simpson, who is one of the defendants in this suit; and further, that two other children, to wit, Martha Virginia and Elizabeth Rebecca, were born to the said Richard D. Simpson before his eldest child, the said Emily Ann, attained the age of 21, which she did on 16 January, 1859.
The plaintiff, the trustee, avers in the bill that the executors have assented to this legacy, and that he has the same in his hands ready to pay it to whomsoever may be entitled, and prays the instruction of the court as to his duty in the premises. He prays to be informed whether the fund is to be divided between the two children born at the death of the testator alone, or whether the child with which the wife of Richard *Page 173 Simpson was enciente at the death of the tenant for life is entitled to a share, and if so, whether the two born since that time, but before the eldest came of age, is also entitled to like shares. He also prays to be informed whether, if they all take, he is, in the division of the rents and profits, to divide the same among them all without reference to the time of their births, or whether each shall receive a pro rata share of the rents and profits accruing since her birth. If the bequest of Exum Simpson for the benefit of the children of his son Richard had been directly to them as a class, without the creation of any intermediate particular estate, the property, in seeking an ownership upon the death of the testator, would have vested absolutely in such of the children of Richard as might then be in being. But inasmuch as it is a settled rule of construction, based upon justice and the presumed intention of every testator to include as many as can be consistently with rules of law within the class, it will follow that if there be an intermediate estate after which the remainder is limited to the class, all who shall come into being before the termination of the intermediate estate will be counted as objects of the testator's bounty. And so, in conformity again with this governing rule of construction, if there be not only an intermediate estate, but the remainder be put in trust for the class and made divisible as the individuals shall, respectively, arrive at 21 years of age, all of the class will take who shall have been born before the period for division arrives. Knight v. Knight, 56 N.C. 167; Clark v.Clark, 11 Con. Eng. Chan., 318; S. c., 8 Simons, 59.
We are of opinion, therefore, that all the children of Richard Simpson mentioned in the bill are entitled to share alike in the principal fund held by the complaint for them. With respect to the possible rights of after-born children, should there be any, to be let into the enjoyment of the fund through the continuing trust in the complainant, we express no opinion. It may never become, in the case before us, of any practical importance.
The surplus of income, we are of opinion, should be divided amongst the children as it would have gone, if it had been applied from year to year as directed. This disposition of it is governed by the apparent intention of the testator as gathered from the words of the will. The testator directs the annual application of the income to the use of (211) the children, and the principal fund (simpliciter) to be divided when the period for division arrived.
Let the income or proceeds remaining on hand go to those who would have received it had it been annually applied. And let one-fifth part of *Page 174 the principal be allotted to the daughter, who is now of age. The costs should be paid out of the fund.
PER CURIAM. Decree accordingly.
Cited: Cooley v. Lee, 170 N.C. 21.