New Hanover County, NC - Thomas C. Reston v. Thomas Clayton, 1812

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North Carolina Supreme Court
Thomas C. Reston v. The Executors of Thomas Clayton, Deceased
From New Hanover

A bequeathed certain personal estates to trustees, "until some one of 
his grandchildren, the lawful children of his daughter B, should arrive 
to the age of twenty-one years, at which time the property was to be 
divided among his said grandchildren, equally, share and share alike": 
Held, that all the grandchildren living at the time the first of them 
attained to the age of twenty-one years are entitled, share and share 
alike.

Thomas Clayton, by his last will, gave his estates, both real and 
personal, to certain persons in trust, to sell his lands and his 
perishable property and hire out his slaves "until some one of his 
grandchildren, the lawful children of Isabella Reston, of Scotland, 
should arrive to the age of twenty-one years, at which time his slaves 
were to be divided among his said grandchildren, equally, share and 
share alike; and all the rest and residue of his estate to be equally 
divided among his said grandchildren, and given to them when they 
should arrive to full age respectively; and that his executors should 
allow for the annual profits of his estates whatever sum or sums of 
money they might think proper for the education and maintenance of his 
said grandchildren, until they respectively should arrive to full age."
 
At the time of the making of the will in July, 1793, and of the death 
of the testator, in October following, Isabella Reston, named in the 
will, had three children: Thomas C., who arrived to full age in 
October, 1810, Mary and William. After the death of the testator, and 
before Thomas C. Reston arrived to full age, Isabella Reston had seven 
other children, who were alive at the commencement of this suit; and 
the question submitted to this Court was, whether the estates of the 
testator were to be divided among the three children living at the 
death of the testator or among the ten children living at the time 
Thomas C. Reston arrived to full age.

Hall, J. It is not necessary to inquire whether the legacies vested 
before the time pointed out for their payment. If they did not vest 
before that time, it is clear that all the grandchildren are entitled; 
if they did vest before that time, we are authorized by Attorney-
General v. Crispin, 1 Brown Ch., 386, to say that the consequence is 
the same. All the children of Isabella Reston living when her son 
Thomas C. arrived at full age are equally entitled.

Source: North Carolina Reports, July Term 1812

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