Fleetwood v. Fleetwood, 17 N.C. 222, 2 Dev. Eq. 222 (1832)

Dec. 1832 · Supreme Court of North Carolina

17 N.C. 222, 2 Dev. Eq. 222

Sarah A. Fleetwood et al. v. Jos. Fleetwood et al.

Bequest of negroes, to be divided between the children of A, when one of them arrives at the age of sixteen: Held, that children bom after the death of the testator, but before the time of division, are entitled to a share.

This was an appeal from a decree of Donnell, Judge, pronounced at Perquimans, on the last circuit.

A legacy to a class of persons, without any time fixed for its division, is to be divided among the legatees in -sse at the testator’s death.

The facts were, that George B. Ncwlern made bis last will on tlie 20th of September, 1824, in which he bequeathed as follows: “ I give my negroes to be equally “ divided, when Sarah A, Fleetwood, arrives to sixteen “ years, between Parthenia Fleetwood’s children.” At the date of the will, Parthenia Fleetwood had four children, who are the plaintiffs. After the death of the testator, hut before Sarah A. Fleetwood arrived at the age of sixteen, Parthenia Fleetwood had two other children, who are the defendants. And the only question was, whether the slaves were to be divided among all the children, or between those only who were born at the death of the testator.

His Honor directed the division to be made between all the children, and the plaintiffs appealed.

No counsel appeared for either party.

DaNxex, Judge,

after stating the case, proceeded: Where a legacy is given to a class of individuals, as to children, in general terms, and no period, is appointed for its distribution, it is due at the death of the testator. The payment of it being postponed for one year after that event, only for the convenience of the executor, in administering the assets ; the rights of legatees are determined at the testator’s decease. (Crone v. Odell, 1 Ball & Beatty. 459.) Upon this principle, is founded the well established rule, that children in existence at that period, or legally considered so to be, are alone entitled to participate in the legacy.

It is now also settled, that when legacies are given to a class of individuals generally, payable at a future period, as to the children of B, when the youngest shall attain the age of twenty-one; or to be divided among them upon the death of C, any child who can entitle itself under the description, at the time when the fund is to bo divided, may claim a share, viz: as well children living at the period of the distribution, although not born till after the testator’s death, as those born before, and living at the happening of the event. This rule is founded upon the anxiety of a court of equity to effectuate the intention 0f testators, in providing for as many children aspossi-^le. ^ therefore does not unalterably confine the num-her to the time when the interests vest, which in general ¡s tjie {]eath of the testator, but prolongs the period to the happening of an event upon which a determinate share of the fund becomes payable. (Andrews v. Partington 3 Bro. 402. Vanhook v. Roper, 1 Mur 178.) All the children of Parthenia Fleetwood, that were in existence, or legally considered so to be, (as a child in ventre sa mere, J when Sarah Jinn Fleetwood, arrived at the f go of sixteen years, are entitled to a share, of the slaves bequeathed in the will of George B. Mewbern. The decree made, in the court below, was correct, and is aliirmed.

Teh Cueiam — Beceee aeeiemed.