Walker v. Johnston , 70 N.C. 576 ( 1874 )

PeARSON, C. J.

Owing to the number of classes and the many individuals composing the classes, at the opening of the case, it seemed to be- very complicated. Upon examination, we find there is really no difficulty presented by the provisions of the will, and the only matter is to “ call the roll,” and let each man take place in his company, a task which I will not undertake, leaving it to be performed by a reference.

1. The will directs a sale of the land at the death of the testator’s sister, Catharine, the proceeds of sale to go into the common fund, thus the la/nd is converted into personal estate.

2. John Walker, the brother of the testator, died before the termination of the life estate to his sister Catharine, so it is the same, as if he had not been referred to,, and the legacy is “ to the children of his brother John.”

3. So we have a fund — one-fourth to the children of John,., one-fourth to the children of William, and one-fourth to the children of Mary. The mode of distribution- is settled. See-Iredell on Executors, and Williams on Executors.

When a legacy is given to a class — as to the children of A»,, with no preceding estate, only such as can answer to the call at the death of the testator can take, for the ownership-is then: to be fixed, and the estate must devolve upon those who-answer the description. So children of A, born after the death.- - of the testator, are excluded, as are also the children of a child of A, such child having died before the testator, for these-children of a child of A, do not fill the description, tion. But when there is a preceding life- estate so that the ownership is filled for the time, and there is-no absolute necessity to make a peremptory call, for the takers of the ultimate estate, the matter is left open until the determination of the life estate, with a view of taking in as many, of the objects-of the testator’s bounty, as come within, the description and can answer to the call, when it is necessary for the ownership'to devolve and be fixed.

It follows that all of the children of John, William and Mary, who were living at the death of the testator, or who were born before- the legatee for life, had vested interests and the shares of any who died between the death of the testator and the death of the legatee for life, devolved upon their personal representative. ¿

It also follows that no child born after the death of the legatee for life could have taken, for the door was closed by that event. There are no such claimants in this case, bnt the argument required a reference to them.

It also follows that the children'of any child of John, William or Mary, whose parent was dead at the death of the testator, cannot take, for the child of a child does not answer the description, and we cannot add the words, “ the children of any child who is now dead,” although we have no doubt the testator, if he had thought about it, would have added those words, for he was distributing by classes, and the children of a deceased nephew or niece, by representing the parent, would bring themselves up to that class; but this right of representation is not provided for, and we cannot supply the omission.

4. We think the University is entitled to the one-fourth part, given to “ James Walker,” his sister Jane’s son.”

James was a bastard, and died intestate and without children, and has no kin. By the common law a bastard was nullms filius, he was the child of no one in contemplation of law; and even his mother was not supposed to be kin to him.

This rigidness of the common law has been relaxed by statute, so as to recognize the brothers and sisters of a bastard and his mother’, as being of kin to him; but it cannot be extended, by even a strained construction, to the children of the brothers and sisters of his 'mother.

The judgment in the Court below will be modified according to this opinion, and the case will be remanded to the end that a reference-may fix the amount of the fund, and may ascertain the individuals entitled to take under the several classes, and the amounts to be paid to each; and that the deceased children may be represented by an administrator, who will pay -debts, if any, and -distribute according to law.

Judgment modified. ’Costs to be paid out of the fund.

Pee Cubexam. Judgment accordingly.