July 18, 1918. The opinion of the Court was delivered by This is an action for partition. The defendants set up title in themselves. Their claim of title is based upon the following clause of the will of their grandfather, Gov. W. H. Gist, as stated in appellant's argument:
"The above stated case arises upon the construction of the will of the late Gov. W.H. Gist, made on the third day of December, 1873, and of record in the office of the probate Judge for Union county.
"The main question presented by this appeal arises upon the consideration of the clause of the said will reading as follows, to wit: `I give and devise to my son, David C. Gist, that tract of land in Union county, known as the D.C. Gist home place (here describing same by metes and bounds); in trust nevertheless for the use of his children, born and to be born and their heirs forever, with the power of the said trustee to sell and convey the said tract at any time before the oldest of the said children reaches the age of twenty-one years and invest the proceeds thereof for the same uses.'"
David C. Gist, at the time of the execution of the will, and the death of his father, was married and has several children. There were other children born after the death of the grandfather and before the oldest child became 21 years old. The land was partitioned among the children of the first married. One of the children died. David C. Gist was in financial trouble, and a judgment creditor attempted to subject the interest of David in the share of the deceased child to the payment of his judgment. David claimed his homestead, and his interest was set off to him in this land. The wife of David died, and he married again. The plaintiffs are the children of the second marriage. The plaintiffs claim they take under the will and are included in the term "children to be born." The defendants deny this and claim *Page 191 "children to be born" includes only those who were born before the "oldest of said children reached the age of twenty-one years."
The case was referred to a master, who held that the second set of children were included in the term "children to be born." The case was heard on Circuit by Judge Shipp, who affirmed, in an excellent decree, the report of the master, as to this finding. From this decree this appeal is taken.
There are 22 exceptions, but only 3 questions. Twenty of these exceptions, covering seven pages of the "case," raise the one question. Our modern Courts are trying to decide the real question in a case, and one exception is enough to raise and have decided that question.
The decree of his Honor, Judge Shipp, is clear, succinct, and fully sustained by the authorities cited by him. We would not heed our own suggestion if we attempted to restate his decree in different words. Let his decree be reported.
On the first question, to wit, are the children of the second marriage (the plaintiffs) included in the term "children to be born?" We say they are.
Appellants claim that his Honor erred in stating that there were five children of David by the first marriage and say that respondents concede it to be error. While respondents do not argue this question, we do not find that it is admitted of record. It is well, therefore, to refer it back to the master to find the facts and state the proportions in which the parties will take.
The next question relates to the partition of the homestead of David C. Gist. The appellant claims that, inasmuch as the Court has held that the partition was premature, it must be treated as a nullity and the whole land is subject to partition. This view is sustained by the recent case of Pearson v. Easterling, 97 S.E. 238, not yet officially reported.
*Page 192The judgment as modified is affirmed.