State ex rel. Barnes v. Shannonhouse, 29 N.C. 9, 7 Ired. 9 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 9, 7 Ired. 9

THE STATE TO THE USE OF J. C. BARNES & AL. vs. ELIZABETH SHANNONHOUSE & AL.

tVhen a legacy is given to four children by name, and one of them' dies hi the lifetime of the testator, his legacy is lapsed and must go, as undisposed property, to the next of kin of the testator.

The case of Johnson v. Johnson, 3 Ired. Eq. 426, cited1 arid approved.

Appeal from the Superior Court of Law of Pasquotank, at the Spring Term, 1846, his Honor Judge Bailey presiding.

The testator, Thomas L. Shannonhouse, in the tenth elause of his will, gave to four of his children, naming them, the residue of his chattel property, and directed his executor to convert it into money, and equally divide' it between his said four children, “ except one' (Susan Forbes,) to have five hundred dollars less, for the two negro girls already given to her.” William Shanon-house, one of the four legatees, died in the lifetime of the testator. The Judge was of the opinion that his share did not survise to the other three legatees, but lapsed, and was undisposed of by the will, and went to the next of kin of the testators.

A. Moore, for the plaintiff.

No counsel for the defendant,-

Daniel, J.

We are of the same opinion with the Judge below. In Johnston v. Johnston, 3 Iredell Eq. 426, where the testator bequeathed the residue of his estate, not disposed of, to his wife and her six children, to be equally divided between them, and their heirs, share and share, alike ; A, one of the six children, died in the lifetime of the testator. Held, that this bequest was not to the children as a class, but as if each had been particularly named. And, as each was entitled to only one seventh, the share would not be enlarged by the death of one in the lifetime of the testator; and that the share of A. lapsed and was undisposed of, and belonged to the next of kin of the testator, and to his widow. In the case now before us, each of the four children was particularly named by the testator. The share of William, who died in the testator’s lifetime, never vested in him, but lapsed, and became so much of the undisposed personal property of the testator, and of course went to the testator’s next of kin. The judgment must be affirmed.

Per. Curiam. Judgment affirmed-