Person County NcArchives Court.....John Rogers' Executor, John Vanhook V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 28, 2009, 4:45 pm

Source: Nc Reports
Written: 1819

John Vanhook and others v. John Rogers' Executor

From Person

May Term 1819

Testator lent to his son Littleton three negroes, and directed his executor to 
hire them out and apply the hire to the support of Littleton during his life, 
and after his death, to divide the negroes, and their increase, among his son 
Bird's children, as they should arrive at age. He then directed, that all the 
remainder of his estate should he sold by his executors, and, after paying 
debts, &c. be equally divided among his son Bird's children, as aforesaid.

Bird had several children born after the death of the testator, in the life 
time of Littleton, and before Bird's eldest child arrived at age. And a 
question arose, whether these after born children were entitled to 
distributive shares of the property included in the residuary clause of the 
will.

Held, that, they were entitled equally with the children born before the 
testator's  death. All the children of Bird are entitled, who were living at 
the time the property ought to be divided: that time is, after Littleton's 
death, and when Bird's eldest child arrives at age. Both events must happen 
before a division, and the Court will postpone a division until the happening 
of the latest event, in order to embrace a greater number of children, in 
conformity with the principles governing the Court in marriage settlements.

Where a fund is to be divided under a will, persons claiming the fund under a 
general description, are entitled, if they can bring themselves within the 
description.

Where property is given to the children of A, and no time is fixed for a 
division, it is divisible by the will, at the testator's death, although the 
executor's must, by law, hold it for two years for the benefit of creditors; 
and only children born at the time of the testator's death, or in ventre sa 
mere, are entitled.

John Rogers, by his last will, "lent to his son Littleton Rogers, one bed and 
furniture, and three of his negroes, Esther, Ned and Let;" and directed his 
executor to hire out said negroes yearly, and apply the hire to the support of 
his son Littleton, during his natural life; and the overplus, if any, he 
directed to be yearly applied towards the support of his son Bird's family; 
and after the death of Littleton, the said negroes, with their increase, to be 
equally divided between his son Bird's children, and their heirs, as they 
should come to lawful "age." In another clause of the will, the testator 
directs that "all the remainder of his estate should be sold by his executor, 
and, after paying his debts and a small legacy, be equally divided among his 
son Bird's children as aforesaid."

This petition was filed by the children of Bird Rogers, who were born at the 
time of the testator's death, to recover from the executor, the property 
bequeathed in the residuary clause of the will. The executor pleaded, that 
there were born to the said Bird Rogers, in lawful wedlock, after the death of 
the said testator, other children, to-wit. Richard, Rebecca, John, James, 
Sarah, &c., who were not made parties to the petition; and prayed judgment of 
the Court, whether he was bound to make any further answer. It did not appear 
in the case, whether Littleton Rogers was dead, or whether the eldest son of 
Bird Rogers was of full age, before the birth of the after born children. It 
was referred to this Court to decide, whether the children of Bird Rogers, 
born after the death of the testator, were entitled to any share of the 
residue.

Henderson, Judge: Persons claiming under a general description in a will, are 
entitled, if they can bring themselves within the description, when by the 
will of the testator, a fund is to be divided. Therefore, where property is 
driven to the children of A, and no time is fixed for a division, it is 
divisible by the will at the testator's death, although the executor must by 
law, hold it for two years, for the benefit of creditors. Of course, only 
those children born at the time of the testator's death, or in ventre sa mere, 
are entitled. If any after period be fixed by the testator, those who answer 
the description at that period, will take; and there is a strong leaning in 
favor of children, to lay hold of any circumstances to postpone the time of 
division, to embrace all the children, in conformity with the principles 
governing the Court in marriage settlements, and, in the meantime, to allow 
maintenance to the children, if necessary. This brings us to the question. 
When is the residue in this case, to be divided? And this depends on the time 
the negroes are to be divided, and the effect of the words "as aforesaid," in 
the residuary clause.

The negroes are to be divided after Littleton's death, and when the eldest 
child of Bird shall arrive at full age; that is, Littleton must be dead, and 
Bird's eldest child must be of full age. They are not divisible until both 
happen; the most remote, therefore, determines the time of division. Then the 
residue is to be divided, as aforesaid; that is, as the negroes are, at the 
same time and in the same manner. By this means, the greater number of 
children will be let in, and the testator's bounty more equally shared. We may 
suppose the testator intended this fund to be divided when Bird's eldest child 
should arrive at full age, regardless of the fact of Littleton's death or 
life; because this fund is not included in the bequest to Littleton for life, 
and therefore no necessity of postponing it until his death should happen. But 
this supposition would be to make, not expound the will. It is possible he 
might have so intended; but he has said otherwise, by directing it to be 
divided as aforesaid, which cannot be satisfied without dividing it in the 
same manner, that is, among the same persons, which might not be the case if 
different periods were fixed on for the division. The question in this case is 
then answered: the children born subsequent to the death of the testator, are 
entitled. But to make the plea good, it should have been stated or averred in 
it, that the children were born before the death of Littleton, or before the 
eldest child of Bird arrived at full age; in other words, before the time of 
division; for, on that fact depends  their claim, and on their claim, the 
validity of the plea. In its present dress, the plea is bad: and the Defendant 
must answer. But were the case before this Court, an amendment would be 
permitted; for it is evident the petition was brought to try the right of the 
afterborn children regardless of the time when born; whether before or after 
the two periods before mentioned as the time of division.

Cited: Fleetwood v. Fleetwood, 17 N. C. 224; Van Hook v. Van Hook, 21 N. C. 
590, 7; Petway v. Powell, 22 N. C. 312; Mears v. Mears, 26 N. C. 197.

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