Jourdan v. Green, 16 N.C. 270, 1 Dev. Eq. 270 (1828)

Dec. 1828 · Supreme Court of North Carolina

16 N.C. 270, 1 Dev. Eq. 270

Elizabeth Jourdan et al. v. Simon Green et al.

From Franklin.

The word Heirs, in a will, Where the testator recognizes the existence of the ancestor, means heirs apparent. In a bequest to J P and the heirs of S J, J P takes a moiety.

In such a bequest to heirs, if it be of a present interest, those onlj-take who were born at the date of the will, and perhaps at the death of the testator. But if the interest is expectant upon a life estate^ those take who are born before the expiration of the particular estate.

Burweix Perry ml the IGtSi of July, 1818, made and published his will, which as far as is material to this case, is as follows :

ss I give and bequeath unto my wife Elizabeth Perry, •s one negro man named Simon, and one named Peter, ° _ ís and a woman named Suky, together with the balance ss of my stock, and household and kitchen furniture, that Si is left after paying my just debts, to her during her natura! life, and after her death to be equally divided “ betvveen my son John, and rny daughter Sally Jourdan9s <s heirs.

c£ Í have already given to my daughter Sally Jourdan, “ one negro boy Bob. I also give and bequeath to my “ daughter Sally Jourdan’s heirs, a negro boy named “ Adam, and a negro girl named Sylla 99

The bill was filed by the Plaintiffs who arc the chip ■dren of Sally Jourdan, born before the death of the testator JBnrwell Perry. It averred the death of the widow Elizabeth Perry, and the Plaintiffs insisted that they were Entitled to an equal share with John, per capita, of the negroes Simon, Peter and Suky, and her increase.

The Defendants who were the children of Sally Jour-dan, horn after the death of the testator, and the assignees of John the son, admitted the facts set forth in the bill, and submitted to such construction as the Court might put upon the will.

The case was submitted without argument, by W. JT. Maywood, for the Plaintiffs- No Counsel appeared for the Defendants.

Henderson, Judge.

— ’The words “heirs of Sally Jourdan" in this case, mean heirs apparent — next of kin apparent, as the testator in his will takes notice that she is alive, by declaring that he had given her negro Bob.

The bequest of negro Adam and Sylla importing a present interest, none of the children of Sally can take-hut those born at the time of making the will j at fur-best, only those born at the testator’s death, and in thi<? case it makes no difference which period of time is ta« ken, Cpr none were born in the interval,

^s {-0 {]10 property bequeathed to Sally’s heirs, after the death of his wife, as there was no present interest bequeathed, those take who were born before the wife’s death. It is sufficient if they answer the description, when an interest vests in possession. This rule was adopted by the old Supreme Court, in the construction of the will of one Rogers. If we could, we would give the property to ai! Sally’s children, no matter when born, but we cannot depart so far from the words of the will.

We shall declare that Betsey, John, Burwell, Ferry, Eliza & Martha, (those born before the testator’s death) are entitled equally to the negro boy Mam, the negro girl Sylla and her increase, with their hire and profits j and that they with Samuel, James, Sally and Martha, be. ing all the children of Sally Jourdan, born at the death of the testator’s wife, are entitled equally to one half the negroes and other property, bequeathed to Sally Jour-dan’s heirs, after the death of the testator’s wife, including the increase of the females since that time, and the hire, profits and interest. The other half of that property belongs to the testator’s son John ; for all the children, that is all the heirs, take as one person quoad John. ■When liis share is to be ascertained, the Word “ heirs’” is nomen collectivum.

Per Curiam.

— Let the decree be entered accordingly.