Wise v. Leonhardt

• Court: North Carolina Supreme Court
• Writing for the Court: MONTGOMERY
• Citation: Wise v. Leonhardt, 128 N.C. 289, 38 S.E. 892 (N.C. 1901)
• Decision Date: 23 May 1901
• Parties: WISE et al. v. LEONHARDT et al.

38 S.E. 892

128 N.C. 289

WISE et al.

v.LEONHARDT et al.

Supreme Court of North Carolina.

May 23, 1901.

WILLS—DEVISE TO CLASS—BENEFICIARIES— PARTICULAR ESTATE.

Where testator devised a tract of land to his son's children, to be divided among them after the death of such son, only those children who were born at the time of testator's death were entitled to a share of the land, since there was no provision for an intermediate estate, but the title passed to the devisees immediately on the death of the testator.

Appeal from superior court, Lincoln county; Timberlake, Judge.

Action by Sally Wise and others against D. P. Leonhardt and others. Prom a judgment in favor of defendants, plaintiffs appeal. Reversed.

A. L, Quickel and L. C. Holland, for appellants.

D. W. Robinson and C. E. Ohllds, for appellees.

MONTGOMERY, J. The construction of a clause in the will of Joseph Leonhardt is the matter before the court. The item is as follows: "I give and devise to my son Lawrence's children the half of the tract of land where he now lives, to be divided equally among them after the death of my son Lawrence, to have and to hold to them and their heirs in fee simple forever." At the death of the testator, his son Lawrence had three children, and afterwards—more than ten months after the death of the testator, and in the lifetime of Lawrence—eight other children were born to him. The defendants' contention is that, as a time in the future, —the death of Lawrence, —is fixed for the partition of the estate among the devisees, all of the children of Lawrence, and the heirs of such as had died and who were living at the death of Lawrence, were entitled to a share in the estate. The general rule is conceded to be that, where there is a devise or bequest to individuals or to a class, those who answer the description at the testator's death will take, if there be nothing in the will to indicate a different intention on the part of the testator. But it is Insisted also by the defendants that the postponing of the partition of the land until the death of Lawrence, the father of the devisees, makes applicable another rule, not inconsistent with the general one, viz. that as the courts desire to extend the benefits of a will to as many individuals falling within a class, in cases of devises and legacies, as possible, where a future period beyond the death of the testator is fixed for the division of the property the courts will adopt such future period for ascertaining the beneficiaries, and will include all who fall within the designated class at the latest possible period for determining who compose the class. The principle does not apply as to real estate unless there be an intermediate estate for life or years intervening between the death of the testator and the time in the future when the devisees in remainder come into the possession of their vested remainders. It applies in cases of bequests of personal property where the possession of the same is to be held by trustees or executors, to be delivered...