Hathaway v. Leary, 55 N.C. 264, 2 Jones Eq. 264 (1855)

Dec. 1855 · Supreme Court of North Carolina

55 N.C. 264, 2 Jones Eq. 264

BURTON HATHAWAY, ADM’R., against THOMAS H. LEARY, EX’R., AND OTHERS.

A bequest of slaves and other personal property, to the testator’s wife and two children, “ to remain in joint stock until my children shall have attained the age of twenty-one, then their portion to be set apart to them,” conveys a vested interest to the Children, the possession of which, however, is to be postponed till their arrival at the age of twenty-one.

Such an estate is not defeated by the death of one of the children before 21, but is recoverable by his personal representative.

Cause transmitted from the Court of Equity of Chowan County-

William Bullock died in the County of Chowan, seized and possessed of a considerable estate, consisting of several tracts of land, slaves, and other valuable property, having made and published his last will and testament, which was duly proved by his executor, Thomas IT. Leary, the defendant, who alone qualified, his wife the executrix, therein appointed jointly with him, having renounced her right to act. In the will of William Bullock is contaiñed the following clause:

“ It is my desire that all the real estate I have, shall be sold, (describing the tracts). It is my will and desire that all of my negroes, and all other property that I may have, after paying my just debts, may be held in joint stock by my wife and children; that the negroes be hired out annually, and the hire be appropriated to the support of my wife and children ; but it is my express will and desire that if the income of my estate should not be sufficient for the support and education of my children, that my negroes shall not be sold for that purpose, but that my family shall confine their expenses to their income; but should it be found that the income of my estate exceeds the expenses of the family, the surplus will be divided among my wife and children, the property herein divised to remain in joint stock until my children shall have attained the age of twenty-one, then their portion shall be set apart to them ; or in case my wife should again get married, then, her portion (a child’s part) to be set .off to her.” And by a codicil to the will he adds,’ “ It is my will and desire that in the event of my son Benjamin’s portion of the income of my property should not be sufficient to raise and educate him, that my executors raise a sufficient amount to defray tiie expenses of his education, and that the same be charged to him, and be deducted out of his portion of property.”

The testator left two infant children, Isadora and Benjamin. The former intermarried with one Connelly, in Alabama, and died intestate about two years since, not having arrived at the age.of twenty-one, and administration was granted on her estate to the plaintiff. The widow of the testator having intermarried with one ITardy, and having her property settled under an ante-nuptial contract, her share has been paid over to her trustee; so she is not interested in this suit. The plaintiff claims the share of Isadora as an interest that. vested in her life-time, and alleges that he has often demanded the same of the defendant who has failed to pay it, alleging that some doubt exists as to the jiroper construction of the will, and suggesting that, as Isadora did not arrive at the age of twenty-one years, the contingency on which she was to take having never occurred, the share never vested in her. The plaintiff ah leges that the slaves of tiie estate were hired out for several years, and that the income from that source far exceeded the expenses of the family; and that besides the slaves themselves, there is a considerable sum in the hands of the executor to be divided between the plaintiff, as the representative of Isadora, and the son, Benjamin, who had arrived at the age of twenty-one before the hill was filed.

The bill prays for an account of the estate of ¥m. Bullock, in the hands of his executor; that the share of the said Isado-ra maybe ascertained and paid to her administrator; also, that commissioners may he appointed to divide the slaves, &c.

The answers of Thos. H. Leary and Benjamin Bullock are filed, admitting the allegations of the bill; but the latter contends that Isadora’s interest under their father’s will, was contingent, and the event never having occurred upon, which it was to become absolute, she takes nothing further than she has received in the way of support and education.

The cause was set down for hearing on the bill, answers and exhibits, and sent to this Court by consent.

Heath and Hines, for plaintiff.

Moore and Smith, for defendants.

Battle, J'.

It lias been too long settled to be now questioned, that in a bequest like the one before ns, the interests of the legatees are vested, and if one die before the period' of division has arrived, his or her share will devolve upon his or her representative. The subject is so well and so fully discussed in the cases of Perry v. Rhodes, 2 Murph. Rep. 140; Clancy v. Dickey, 2 Hawks’ Rep. 497, and Gwyther v. Taylor, 3 Ire. Eq. Rep. 323, referred to by plaintiff’s counsel, that it would be a work of supererrogation to make another remark upon it.

Pee Cubiam. A decree may be drawn in accordance • with this opinion.