This was a bill brought by the children of Jonas King, their father, to recover from the executor of their grandfather’s estate, one Jonathan King, of North Carolina, the one-eighth of said estate, or share of their father, Jonas King. The bill was demurred to, and dismissed by the Judge below.
In looking through this bill, we find that it is nowhere shown at what time Jonas King departed this life, and this omission is important, in the opinion of this Court. If he died during the lifetime of Jonathan King, the testator, (and which, fact ought affirmatively to appear by the bill,) then, under the law, his legacy went over to his children, the present parties, and they would have a right to proceed against the executor for their respective shares. But, otherwise, if Jonas King survived his father, the testator, then the present parties would hav e no right to proceed by bill for settlement, etc., against the executor of their grand-father, and this would impose the necessity of administration on Jonas King’s estate, to bring suit by such administrator, to enforce a settlement. And upon this ground judgment is affirmed.