Opinion
(June Term, 1866.)
1. Where a residue in a will was given to John, Elizabeth, Edward, and Robert, "four children of L. S. and P. E. Webb," and John died in the lifetime of the testatrix: Held, that his share did not survive to the other residuary legatees, but was undisposed of, and went to the next of kin.
2. Distinction between the cases, where there is a lapse of a share in a residue given "to the children of a certain person, to be equally divided between them" as a class, and where there is such a lapse in residue given to be equally divided among such children, nominatim, stated by BATTLE, J.
ORIGINAL BILL, filed at Spring Term, 1866, of BERTIE, to obtain instructions upon the residuary clause in the will of Elizabeth Spellings, deceased.
Winston, for the complainant.
No counsel in this court for the defendants.
The clause in question was: "All the balance of my estate of every kind I give to John Webb, Elizabeth Webb, Edward Webb and Robert Webb, four children of L. S. and P. E. Webb."
Of the residuary legatees John died before the testatrix, unmarried.
The other residuary legatees, and the next of kin of the testatrix became parties to the cause, and at the said term it was, by consent, set for hearing upon bills and answers, and transmitted (2) to this court.
If a residuary fund be given by will "to the children of a certain person, to be equally divided between them," as a class, and one of them die in the lifetime of the testator, his share will lapse for the benefit of the other residuary legatees. Viner v. Francis, 2 Cox, 190. But if such a fund be given to the children, nominatim, or to the six or any other number of children, to be equally divided between them, and one of the children die before the testator, his or her share will lapse, but will not fall into the residue for the benefit of the other children, whose shares, it is said, can not be enlarged by such an event. Johnson v. Johnson, 38 N.C. 426; Owen v. Owen, 1 Atk., 494; Page v. Page, 2 Peer Wms., 489; Ackroyd v. Smithson, 1 Bro. C. C., 503. These cases show that the lapsed residuary share is undisposed of by the will, and must be distributed among the next of kin. In Allison v. Allison, 56 N.C. 236, a contrary doctrine was laid down, as it had also been in England by SIR JOSEPH JEKYLL, the Master of the Rolls, in Hunt v. Berkeley, decided in 1731. But Hunt v. Berkeley was afterwards expressly referred to and overruled by the cases of Owen v. Owen and Page v. Page, and the ruling in the latter cases is now considered the settled doctrine in England. In like manner we must hold that the part of the decision in Allison v. Allison, 56 N.C. 236, which relates to the residuary share of one of the children, that lapsed by his death in the life of the testator, can not be sustained. In the case which is now before us the death of one of the children and residuary legatees, in the lifetime of the testatrix, caused the (3) lapse of the share intended for him, and, upon the authority of the English cases and of Johnson v. Johnson, 38 N.C. 426, we hold that it does not go to the other residuary legatees, but to the defendant, Ann Rebecca Scott, who is the sole next of kin of the testatrix. There may be a decree for an account and settlement in accordance with this opinion, the costs to be paid out of the funds in the hands of the executor.
PER CURIAM. Decree Accordingly.
Cited: Hastings v. Earp, post 7; Twitty v. Martin, 90 N.C. 646; Battle v. Lewis, 148 N.C. 150.