This proceeding was originated to obtain the advice of the court as to the construction of the will of Henry Williams, and for a sale of the land devised.
His Honor below declared the rights of the parties and ordered a sale of the land. From which there was an appeal to this court.
At the last term w'e reviewed the ruling of his Honor as to all the points presented. See same case, 73 N. C. Rep., 174.
At this term a petition is filed in the cause, setting forth <£ that the principal object, after ascertaining the rights of the devisees, was to ascertain whether Hassell, as administrator de bonis non, had tlie right to sell the land.” And that the decision at last term does not cover that enquiry.
The opinion filed at last term declares, that inasmuch as the lands are devised to the first takers for life only, with remainder to such of their children as should be living at their death, it cannot be ascertained now who are to take the remaninder, and not being ascertained they cannot be represented or bound by any precoeding, and, therefore, the lands cannot lie sold at all. A reasonable inference from this is, that Hassell cannot sell them.
A second inquiry now made is, “ How is the interest of Mrs. Stubbs’ children to be sold?”
Mrs. Stubbs, one of the first takers, is dead, leaving two chil*436dren, so that liere, the remaindermen are ascertained. True but then their interest is mixed -with the interests of persons not ascertained; and therefore they cannot be severed. The lands cannot be sold now, in any way by any body. And this was substantially declared in the opinion filed at last term.
In Grissom v. Parrish, Phil. Eq., 330, the devise was the same as here; and it was held that the children of the first taker had, during the life of the first taker, no interest which could be sold. So in Watson v. Watson, 3 Jones Eq., 400, there was the same devise and the same decision. That is the leading case in North Carolina. And it is put upon the ground stated at last term, that during the life of the first taker, it was impossible to know who would be the remainder men; and, therefore, they could not be represented or bound. In that case the first taker was unmarried, and, of course, had no children; and he represented, that he could not cultivate the land, and that it would go to waste, if not sold; but still the court refused to order a sale, upon the ground that it had not the power to do so.
We have taken pains to elaborate what we said at last term, and to refer to the precedents, for the satisfaction of the parties.
In Watson v. Watson, supra, there is a dictum which may mislead. In that case there were no children born; and the dictum is, that in a case where there are children born, and the devise is to the children as a class, the bom children may represent the unborn, the class; and the land may be sold. There is no illustration to show the meaning of the dictum, but probably it may be thus illustrated : Suppose in the case before us the devise had been to the first takers for life, remainder to their children; that would take in all the children, as well those born after the death of the testator as those born before, and. in such case it may be that the born children might be allowed to represent the class ; but this is not that case. Here the devise is not to all the children as a class, but *437to such as should survive the first taker. Will these bom children be of that class ? Who can tell ? How then can they, as a part of a class, represent the whole, when it may turn out that they are not of the class and have no interest whatever %
Per CukiaM. * Judgment accordingly.