Britton v. . Miller and Others , 63 N.C. 268 ( 1869 )

Reade, J.

I. Under tbe 2nd clause of Margaret S. Brit-ton’s will, tbe children of Stephen W. Britton and Mary E. Miller take per capita. The .general rule is that in such bequests they take per capita, unless there is something in the will to show the contrary. Cheepes et. al. v. Bell et. al., 1 Jon. Eq. 234.

II. Is the estate of Margaret S. Britton which she had in possession, and that which she had in remainder, to be divided among the same persons ? No! The property in possession is to be divided among those who answered the description at the time of her death; and the property in remainder is to be divided among those who answered the description at the falling in of the life estate, and those who legally represent such as may die during the life of the life tenant. Chambers v. Payne, 6 Jon. Eq. 276.

III. Does Stephen "W. Britton take the share of his deceased child Rosa Mary? Yes! Margaret S. Britton’s remainder was vested, and at the time of her death in July 1864, Rosa Mary Britton, daughter of Stephen W. Britton, was in being, and one to whom the remainder is given. It vested in her, and upon her death it vested in her father, S. W. Britton, and the estate is not divested out of the father by the birth of his daughter Margaret more than ten lunar months after the death of Rosa Mary, — Rev. Code, ch. 38, Rule 7. Of course he takes Rosa’s share of the property in possession.

IY. Does Margaret, a daughter of Stephen W. Britton by a second marriage, and born after death of testatrix but during the life of life-tenant, take ? She does not take any of the property which was in possession of testatrix at her death; but she does take a share of the remainder, which opens so as to let in all who answer the description at the time of the falling in of the particular estate. It was admitted that this would be so if the testatrix had created the remainder herself; but it is insisted that where the remainder is created by some other means, and the testatrix is not making, bnt is disposing of a remainder already made, a different rule prevails, and those who answer the description at the time the remainder is disposed of, i. e., the death of the testatrix, will take. But we can see no reason •for the difference, and we do not agree to it.

There will be a reference to the clerk, of this Court to take an account, .if desired. The cause will stand for further directions.

Per Curiam. Decree accordingly.