The bill was filed against the trustee, Henry Baker, Jr., for an account and for a sale of the property in his hands and a division of the proceeds among those entitled, according to a deed executed by Henry Baker, Sr., on 16 May, 1819. The deed recites as a consideration, the love and affection which the donor has for Elizabeth Gay and her children and for Baker, and conveys to Henry Baker, Jr., a negro woman by the name of Delaney and her two children, Mary and Amy, "to have and to hold the said negroes to the said Henry Baker, Jr., his executors and administrators, for the proper use, behoof, benefit, and advantage of my daughter aforesaid, together with her children (345) aforesaid, and for the security of the payment of $125, with legal interest thereon, to my aforesaid son James Baker." The deed then provides for the sale of one of the negroes for the payment of the $125, and gives overplus of the money arising from such sale, and then proceeds as follows: "The whole equitable interest in the said negroes is to belong to my daughter Elizabeth and her children in common." All the children of Elizabeth Gay that were surviving at the bringing of this suit and the representatives of such as were dead are made parties, either plaintiff or defendant, as also is the administrator of the said Elizabeth, who is now dead intestate.
The trustee, Henry Baker, Jr., answered, giving an account of his trust (upon which there is no question between the parties) and stating the fact that four of the children only of Elizabeth were born at the time of the making of the deed, and one (now Mrs. Carter) was born six months afterwards, and he states that there are conflicting claims set up by the several children as to who are entitled, the four born before 16 May, 1819 (the date of the deed) claiming the whole of the property, Mrs. Carter, then in ventre sa mare, insisting on the same principle, but claims that she shall come in for one-fifth, while those born after Mrs. Carter insist that they are all equally entitled after the death of their mother. The administrator of Mrs. Elizabeth Gay urges that she took with her childrenin esse, and is entitled to one-sixth part of the fund. The trustee asks the Court for a construction of the deed above set forth and for a decree which will protect him against these conflicting claims. *Page 274
Two of the children who were alive at the making of the will died in the lifetime of their mother, and another question is, whether their representatives are entitled to a share. The whole of the slaves, after the sale of one for the payment of James' debt and one other for the better provision of the family, remained in the custody of Mrs. (346) Gay and worked for the common support of the family till her death, which took place in 1858.
The several children interested answered the bill, each insisting on a construction favoring his peculiar interest in the question. The object of the bill is to obtain an account of a trust fund created by the deed of Henry Baker, under date 16 May, 1819, and to obtain a sale and distribution of the same to the persons entitled under said deed. In the accomplishment of these objects a construction of the deed is necessarily involved, and we are accordingly invoked by the pleadings to aid the trustee in putting a proper construction upon it. The trustee submits to an account, but informs the Court that Elizabeth Gay had several children born at the execution of the deed, one born within the ordinary period of gestation, and several subsequent to that period, and inquires who of them are entitled.
We have considered the terms of the deed, and conclude that the children in being at the execution of the deed, including the one "en ventre," alone take, to the exclusion of the others. The payment to James of $125, which was a charge upon the fund, having been made, it will follow that the mother (Elizabeth) and the class of children designated, or their representatives, are entitled to absolute interests in the fund as tenants in common. After payment of the charge upon the fund, it was naked, or executed in trust in the hands of Baker which he might at any moment have been called upon to surrender, and it is, therefore, to be considered as a legal estate, and vests in such persons as answer the description of the donees and are capable of taking at the time.
It differs from the cases cited in the argument, viz., Ponton v. McLemore, 19 N.C. 285; Chestnut v. Meares, 56 N.C. 416, and (347) Coakley v. Daniel, 57 N.C. 89. In these it will be found that the trusts were either open and executory in their nature, or there was an intention, more or less manifest in the terms of the gifts or bequests, to divide the donees into classes, making one the primary and the other the second objects of the gifts.
But in the case now before us, such is not the character of the trust, nor have we been able to gather from the terms used any intention to *Page 275 give in succession to the daughter the use for life, and then to her children, in which all after-born children would have taken. The donor has taken care, indeed, to express a different purpose by declaring in one place that the daughter shall have the use, together with the children, and in another that the whole equitable interest shall belong to the daughter and her children in common.
We do not feel at liberty, however much inclined to do so for the sake of equality, to infer an intent contrary to the established interpretation of the words used. The case is analogous to and is controlled by the authority of Moore v. Leach, 50 N.C. 88.
Although, by a grant or common-law conveyance, nothing could be transferred directly to a child in the womb — for the reason that it could not be a party to such an instrument — yet in a conveyance to uses it was otherwise, for then the legal estate vesting in the trustee the rule of the common law was supposed to be satisfied and the use was allowed to shift so as to include a child in the womb. This was, as I understand it, an indirect adoption of the more humane and practical rule of the civil code, which regarded a child in the womb as already born for all beneficial purposes.
Dupree v. Dupree, 45 N.C. 164, is not opposed to the rule of construction here laid down, but will be found, upon examination, to be in accordance with it.
Our conclusion, then, is that Elizabeth Gay and her children born and living at the execution of the deed, and the one en ventre sa mere (or, if dead, the representative of such), are entitled to the absolute estate in the trust fund as tenants in common. (348)
The parties can have a decree for the sale of the real estate belonging to the fund and for an account and distribution of the entire fund according to the construction here given to the deed.
PER CURIAM. Decree accordingly.
Cited: Hunt v. Satterwhite, 85 N.C. 75; Hampton v. Wheeler, 99 N.C. 225;Heath v. Heath, 114 N.C. 550; Silliman v. Whitaker, 119 N.C. 93;Wilson v. Wilson, id., 590; King v. Stokes, 125 N.C. 515; Whitehead v.Weaver, 153 N.C. 90; Cullens v. Cullens, 161 N.C. 346.