This case involves the construction of the will of E. LI. Dunn, probated in 1865.
“It is my will that my property be kept together, under the direction of my wife, and executors, A. P. Bradford and N. B. Dunn, and that my children be as thoroughly educated as circum*133stances will admit of, and as they marry off, give each a decent outfit, which shall be equal, and at the death of my beloved wife, the property to be equally divided between my children.”
We are of opinion that the “class doctrine” does not apply to this case, but that under this will there was a vested interest, passing to the children of testator at the time of his death, and that upon the death of the daughter, Texas, the wife of complainant, her interest went to her only child, the minor defendant herein, under the statutes of descent and distribution.
While we have had the benefit of very learned arguments, involving the consideration of the numerous decisions in this State on this question, we quite agree with the' Court in the case of Alexander v. Walch, 3 Head, 492, that “there has been enough written in our cases upon that doctrine, and it is only necessaiy to apply the. principles settled upon it, to new cases as they mayN arise.”
We do not think it important to determine whether, under the will, Texas was seized of such an estate during the life of the widow of testator (who died pending the suit in this Court), as would entitle her husband to an estate by the curtesy at her death, which occurred in 1869, for the reason that he will not be heard to assert such right, if it ever existed, after the long delay in setting up same, and which delay is wholly unexplained.’
*134Especially is lie to be repelled from a court of equity after his participation and continued acquiescence in the family settlement had in 1875, wherein the share of his deceased wife was allotted to his infant son, and which share complainant took possession of as guardian for his said son.
The bill must be dismissed at complainant’s cost.