Jourdan v. . Green , 16 N.C. 271 ( 1828 )

(271) "I give and bequeath unto my wife, Elizabeth Perry, one negro man named Simon and one named Peter, and a woman named Suky, together with the balance of my stock and household and kitchen furniture that is left after paying my just debts, to her during her natural life, and after her death to be equally divided between my son John and my daughter Sally Jourdan's heirs.

"I have already given to my daughter Sally Jourdan one negro boy, Bob. I also give and bequeath to my daughter Sally Jourdan's heirs a negro boy named Adam and a negro girl named Sylla."

The bill was filed by the plaintiffs, who are the children of Sally Jourdan born before the death of the testator, Burwell Perry. It averred the death of the widow, Elizabeth Perry, and the plaintiffs insisted that they were entitled to an equal share with John, per capita, of the negroes Simon, Peter, and Suky and her increase.

The defendants, who were the children of Sally Jourdan born after the death of the testator, and the assignees of John, the son, admitted the facts set forth in the bill, and submitted to such construction as the Court might put upon the will. The words "heirs of Sally Jourdan" in this case means heirs apparent — the next of kin apparent, as the testator in his will takes notice that she is alive, by declaring that he had given her, negro Bob.

The bequest of negro Adam and Sylla importing a present interest, none of the children of Sally can take but those born at the time of making the will; at farthest, only those born at the testator's death; and in this case it makes no difference which period of time is taken, for none were born in the interval.

As to the property bequeathed to Sally's heirs after the death (272) of his wife, as there was no present interest bequeathed, those take who were born before the wife's death. It is sufficient if they answer the description when an interest vests in possession. The rule was adopted by the old Supreme Court in the construction of the will of one Rogers. If we could, we would give the property to all Sally's children, no matter when born, but we cannot depart so far from the words of the will.

We shall declare that Betsy, John, Burwell, Perry, Eliza, and Martha (those born before the testator's death) are entitled equally to the negro boy Adam, the negro girl Sylla and her increase, with their hire and profits; and that they, with Samuel, James, Sally, and Martha, being all the children of Sally Jourdan born at the death of the testator's wife, are entitled equally to one-half the negroes and other property bequeathed to Sally Jourdan's heirs after the death of the testator's wife, including the increase of females since that time, and the hire, profit, and the interest. The other half of that property belongs to the testator's son, John; for all the children, that is, all the heirs, take as one personquoad John. When his share is to be ascertained, the word "heirs" is nomencollectivum.

PER CURIAM. Decree accordingly.

Cited: Petway v. Powell, 22 N.C. 312.

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