Opinion
(June Term, 1858.)
Where a testator bequeathed, that at the death of his wife, his slaves, c., should be equally divided "between all my children that are now living," it was Held
1. That children of the testator who died before the making of the will took nothing by this bequest.
2. That the children of a son, who died in the life time of the testator, after the making of the will, took (as purchasers) the share their father would have taken, had he survived.
3. That the distributees of a son, who died after the death of the testator, but before the time of division, (to wit, the death of the testator's wife) were entitled to his share, and that his widow was included in this class.
CAUSE removed from the Court of Equity of Chatham County.
Howze and Bryan, for the plaintiffs.
Manly, for the defendant.
The bill was filed against the executor of William Lassiter for an account and payment of legacies under his will.
William Lassiter executed his will in 1837, in which, after several specific bequests, he bequeathed to his wife a life-time enjoyment of the slaves and other personal property, and then provides as follows:
"At the death of my wife, or at any time when any part of the property not specially willed away, shall come into the hands of my executors, that they may proceed to an equal division of the same between all my children that are now living, or their lawful heirs." * * * "The point aimed at is an equal division of the property in my possession, at my death, between all and every one of my children that are now living."
The testator died in 1845, and his wife in 1853. The will was proved, and the defendant Thomas, of several nominated, only qualified as executor.
When the will was written, the testator had children then living, to wit: John, Thomas (the defendant), Bennet, Elizabeth, intermarried with George Drake, Rebecca, intermarried with Thomas Clegg, and Susannah, intermarried with Lewis Meares.
Of these, John died in the life-time of the testator, leaving three children, Joseph, Thomas, and Rebecca, who are plaintiffs.
Bennet, another son of the testator, who was living at the time the will was executed, died after the death of his father, but before the time of division had arrived, to wit, the death of his mother — leaving a widow, but no children.
The testator had two other children, William and Catharine, who both died in the testator's life-time, before the execution of the will.
These facts are set forth in the plaintiffs bill, and not denied by the executor, but he makes the following questions, upon which he asks for the advice and protection of the Court:
Whether the representatives of Catharine and William, who died before the will was made, are entitled to any thing.
Whether John's representatives, or next of kin, are entitled to any thing.
Whether Bennet's representatives have any interest in this bequest, and if so, who succeed to it; and especially, whether his widow can come in for a share of his interest, if he be entitled to any thing under this bequest.
The cause was set for hearing on the bill, answers and exhibit, and transmitted.
The testator directs that, at the death of his wife, the property shall be equally divided "between all my children that are now living, or their lawful heirs." It is manifest that "now" is used in opposition to the time of the death of his wife, consequently, the will had reference to the time of its execution, and speaks as of that date. We are of opinion that all of the children, who were living at that time, are embraced by its terms. Catharine and William, who both died before the date of the will, are excluded, and their children are not entitled to a share in the division.
In respect to John, who died after the execution of the will, but before the testator, leaving children, we are of opinion that the share which he would have been entitled to, is given to his distributees, as purchasers, and not as claiming under his personal representative. It is settled, that the word "heirs" when used in reference to personal property, (as it is in the clause under consideration,) means distributees, and as the limitation over, is to the children now living, or their heirs, at the death of the wife, the distributees of John take under that description, which prevents a lapse by his death, which would have taken place had the limitation been to the children now living and their heirs.
In respect to Bennet, who died after the testator, leaving a widow, and no children, we are of opinion that the share of the property did not vest in him, but that his distributees, including his widow, are entitled thereto as purchasers, answering the description at the time of the division. If the words "children now living or their heirs" stood unconnected with any thing else, we should construe the word or to mean and, so as to give each child an absolute estate, for nemo est haeres viventes, and "the heirs" of a living person can only be used to limit his estate; but as the division was to be at a future time i. e. at the death of his wife, there is no inconsistency in describing the persons who are to take at that time, as the children now living, or the heirs (distributees) of such of them as are now living, but may then be dead. So, we have no ground for making "or" mean "and," or for making the word "heirs" a word of limitation, and not a word of purchase, which is the sense given to it by the use of the word "or."
PER CURIAM. There will be a decree, declaring the rights of the parties in pursuance of this opinion. The costs will be paid out of the fund by the executors.