This was a petition originally filed in the county court of Perquimans, and brought thence by appeal to the Superior Court, where a decree was rendered in favor of the petitioner, and the defendant appealed to the Supreme Court.
The substance of the pleadings, the facts, and the questions presented are sufficiently set forth in the opinion delivered in this Court. E. Barrow died in 1832, having made his will, and amongst other things bequeathed as follows: "I lend my daughter Nancy E. Moore the following property, to wit: negroes Lewis, Huldy, Baker (and nine others by name), and one bed and furniture (and (437) sundry other articles of furniture). If my daughter Nancy E. should depart this life without issue, then it is my will that her husband, William C. Moore, should have one-half of the property I have lent to her; but the property is to be held in trust by my executors until the death of my daughter Nancy E.; and then her half of the property is to be equally divided between her brother Joseph and her two sisters, Martha and Rachel." The testator appointed as his executors his said son Joseph and John Mardree and Alfred S. Barrow, who were the husbands of the daughters, Rachel and Martha, respectively; and all of those persons and William C. Moore and his wife, Nancy E., survived the testator.
In the lifetime of the testator the slave Baker died, and Huldy was by him sold. But upon his death the other ten negroes and their increase, and the other chattels bequeathed, were placed by the executors in the possession of Mr. Moore, to be held under the executors upon the trusts of the will.
In 1838 William C. Moore died intestate, leaving his wife, Nancy E., surviving him; that she died in 1839, having made a will, and thereof appointed her said brother Joseph the executor, and left surviving her the said Joseph and her sisters, Martha and Rachel. Upon the death of Mrs. Moore, Joseph Barrow and John Mardree and Alfred S. Barrow, the two latter of whom claimed in right of their wives, claimed all the slaves and other property as theirs, and divided it into three parcels accordingly, which they now severally hold. The present plaintiff is the administrator of the intestate, William C. Moore, and instituted this suit by petition in the county court against those persons who thus have possession of the slaves and are also the executors of the original testator, E. Barrow, and prays therein to be declared entitled, under the disposition to his intestate, to one-half of the slaves, and of the other property *Page 310 bequeathed as aforesaid in trust for his wife, and of the increase thereof, and of the hires since the death of Mrs. Moore, and to have a (438) division, account, and payment.
The defendants respectively answered, substantially admitting the case here stated, but insisting that the plaintiff was not entitled, as his intestate died before his wife, and that they, having survived her, were entitled to the whole.
In the county court the petition was dismissed, but on appeal to the Superior Court the decree was reversed, and a declaration made that the plaintiff was entitled according to the prayer of the petition, and commissioners appointed to divide and allot to the plaintiff his half part of the negroes and their increase, and other specific articles, and an inquiry directed as to the profits, and as to the value of any part of the property that might have been sold by the defendants. But from that interlocutory decree the court allowed the defendants to appeal to this Court.
The decree, we think, proceeds on the proper construction of the will, which seems, indeed, to be very plain.
The limitation over after the death of the first taker "without issue" is within the letter of the act of 1827 (Rev. Stat., ch. 122, sec. 11), and is made effectually by it.
It may be granted as highly probable that the testator expected his daughter's husband to outlive her, and, in that expectation it was that he gave him one-half of the property, as a personal benefit, upon the death of the wife without leaving issue. We can readily believe that if Mr. Barrow had thought of the case of their having no children, and of Mr. Moore's dying before Mrs. Moore, he would have limited the property to his own children, and not to Mr. Moore, for the sake of vesting it in an administrator for the benefit of the son-in-law's creditors or next of kin. But this is conjecture only; and on it the will is not to be altered by the introduction of another contingency besides that expressed by the testator. The gift over to the husband, brother, and sisters of Mrs. Moore is simply on the contingency of her "dying without issue," and it is not to him or them "if then living," or "to such one or more of them as might be then alive." Consequently, as Mrs. Moore never had issue, and is now the dead, the legacy has become absolutely vested. That contingent (439) interests of this description are transmissible to executors, and are not lost by the death of the person before the event happens on which they are to vest in possession, though once doubted, has long been settled. King v. Withers, Cas. Temp. Talb., 117; Purefoy v.Rogers, 2 Saund., 288, e note.
PER CURIAM. Affirmed. *Page 311
(440)