Walters v. Crutcher , 54 Ky. 2 ( 1854 )

Judge Sbupson

delivered the opinion of the court.

The testator, Peter Pollock, devised his slaves in trust for his four children during their lives,’ and at their deathror the death of either of them, their one-fourth part to their children, should they leave any, and their heirs forever; but should either of them die without leaving a child or children, their part to. go to the children of the others.

Two of the testator’s children having died without issue, the question arises, whether the children of the other two take their shares under the willper capita ox per stirpes.

1. A devise was “to the wife of the testator for life, and at her death to S. W., in trust for the use” of the testator’s 4 children by name, “during their lives, and at their death, or the death of either of them, one equal fourth part to their children, should tkey have any, and their heirs forever; but them'dfe^without leaving a dren, their part is to go to the children of the others.” Held, was* to the^hüdren of the othcrs rs r class and that there’ man?festednthat the children of whore °one'died without children, should take in the place or in^any'other manner than under a general asVgrand dhi* dren; they concía^an^take per capita, and not by representation. tributíon^s^to take place under de¡vt¿Uofa tenant for life, and to be amongst the children of the testator living at the termination of the life estate, ortlie g r and-children, if the child be dead, the grandchildren, in ease of the death of one of the children then living, take as a class per capita as executory devisees,subject to be modified by the birth of children of one child then having no children; each grand-child Jakes an interest as born, which, in case of its death, passes to his legal representative.

The devise is to the children of the others, as one class. There is nothing in the will that indicates an intention on the part of the testator that the children of the others, whore one died without children, were to take in the place of their parent, or the share of their parent, or in any other manner than they would take under a general devise to them as grand-children. They constitute but one class of devisees, and must take per capita and not by representation.

As the distribution was to take place under the will, at the death of the tenant for life, all the children who were born before that period, were, as de- . . . , . , , „ cided by the court below, entitled to William Pol-i00^’8 Part °f the estate, he having died during the continuance of the life-estate.

As it respects John Pollock’s fourth of the estate, he having died without children, all the children of ° his two sisters, that had been born alive, whether liv- or not at ^e time of his death, took an interest in it, under the will. It was an executory bequest, v i. ' that vested in the children as they came in esse, subJect ^ diveste(i upon the contingency of John’s having children of his own. (1 Roper on Legacies, 402.) It is not the uncertainty of ever taking effect in possession that makes a remainder contingent: _ . . ihe present capacity oi taking effect m possession, ^ P08se88i°n were to become vacant, and not the certainty that the possession will become vacant, be-lore the estate limited m remainder determines, umver8aüy distinguishes a vested remainder from one that is contingent.” (2 Cruise Digest, 270; 2 vol. Chitty's Black. 169, note 10.) Now, in this case, each child as it was born was capable of taking the estate , ,. .„ ,. . . , under the will, n the possession had become vacant during its life, and consequently it took a vested interest, which on its death passed to its legal representatives. The children of the testator’s daughter Betsey took therefore seven-sixteenths of John’s portion J r of the> estate, instead of five-fourteenths, as decided by the court below — she having had seven children born alive, before his death.

In making partition, respect should be had to the former division of the slaves made by the paz’ties themselves, and each family should, as far as practicable .without doizzg injustice to the other; be pez’mitted to retain the slaves they have had in theiz; possession, to the extezit of the interest to which they may be respectively entitled, according to the prizzciples of this opiniozi. The decree in relatiozi to the heirs is ozzly izztezdocutoz'y, azid no question at this time can arise under it.

Wherefore, the decree Is reversed, and. cazzse remanded that szzch a decree zzzay be rezidered azid such partition made as herein indicated.