DEN ON THE DEMISE OF JOHN L. FLORA vs. SAMUEL S. WILSON.

A. devised the premises in dispute, as follows. “ I lend the tract of land I ■ now live on unto my wife, during the time she remains a widow.” He also lends her certain slaves. “Immediately after the marriage of my widow, or directly after the death of my wife, Polly, I give all the before mentioned estates, within doors and without, to my loving wile’s heirs, by consanguinity, with the exception of Elizabeth McPherson, and I give and bequeath to her one dollar.” The testator died in May 183*7, his will was ' proved in the same month, when she dissented. In the August following, she intermarried with Andrew Flora, and shortly afterwards was delivered of a child, of which she was pregnant at the death of the testator. The child lived about six months and died, and within a few months after-the death of that child, she had by Flora a child, the lessor of the plaintiff. The testator’s wife had five brothers and .sisters, who were living when the testator made his will, and when he died. The defendant is the heir, ex-•parte paterna, of the testator's posthumous child, who was the heir of the testator. Held, first, that the lessor of the plaintiff could not claim as heir of the deceased child, because it did not appear that be was born within ten months after the death of such child, and because, even if so born, he was only an heir ex parte materna, and therefore was not entitled to the laud, derived to the child, either by descent or devise, from its father. Held, further, that on marriage of the widow, tho land vested absolutely in the child, and upon its death descended to itsheirs ex parte paterna.

Even if the devise were contingent at first, still the less or of the plaintiff cannot take as one of the remaindermen, because the particular estate of the mother, whetherdetermined by her dissent to the will, or by her marriage, did not continue to his birth, and consequently bis contingent estate would have been defeated.

The case of WatJcins v. Flora, 8 Ire. 3*74, cited and approved.

Appeal from the Superior Court of Law of Currituck County, at the Spring Term 1851, his Honor Judge Dick presiding.

Henry Bright devised the premises as follows: “ I lend the» tract of land I now live on, unto iny wife, during the time she remains my widow. I also lend negro woman Clary and child, Pleasant, Major, Sylvester, Ann, and *345Amanda, to my wife Polly, as long as she lives my widow. Immediately after the marriage of my widow, or directly after the death of my wife Polly, I give all the before mentioned estates, within doors and without, to my loving wife Polly’s heirs by consanguinity, with the exception of Elizabeth McPherson ; and I give and bequeath to her one dollar.” The testator died on the 15th of May 1837, and his will was proved on the fourth Monday of that month, and his widow then dissented from it; and in August following she intermarried with one Andrew Flora, and shortly afterwards she was delivered of a child, of which she was pregnant at the death of the testator and the making of his will. The child lived about six months and died, and was the first child the testator or his wife had. Within a few months after the death of that child, Flora and wife had issue another child, the lessor of the plaintiff-. Elizabeth McPherson and four other persons were the brothers and sisters of the testator’s wife, who were living when he made his will and died. The defendant is the heir ex parte paterna of the testator’s posthumous child, who was the heir of the testator. Under the instructions of the Court, that the lessor of the plaintiff was entitled to the premises, the jury found for the plaintiff, and after judgment the defendant appealed.

Smith and Jordan ior the plaintiff'.

Heath for the defendant.

Ruffin, C. J.

The Court hitherto decided on this will, that Bright’s posthumous child took the premises under the description of “ Polly’s heirs by consanguinity,” as between him and his mother’s brothers and sisters. Watkins v. Flora, 8 Ired. 374. It now appears, that she had another child by her second marriage, who is the lessor of the plaintiff, and is stated to have been born a few months after the-death of her child by the first marriage; and it was held by his Honor, *346that he is entitled to the premises. It does not appear, how it was supposed the lessor of the plaintiff derived title— whether, as the heir of his half brother, or as a purchaser under Bright’s will, within the description, “ Polly’s heirs by consanguinity.’’ The Court, however, is of opinion, that he cannot claim in either way, and that the premises belong to the defendant.

The premises could not descend to the plaintiff, unless he was bom within ten months after the death oí his half brother, according to the seventh rule of descent; and, of course, it lies on him to show his birth to have been within the period prescribed: which the Court, probably, would not be at liberty to inter from the vague statement, that he was born “within a few months” after the death of the other. But the fourth-rule of descent -clearly excludes the lessor of the plaintiff from claiming by descent from his half brother, as the latter derived the premises from his father by descent or devise, and therefore they descended from him to his heirs, who were of the blood of the father. Supposing the premises, then, to have vested in Bright’s child, the defendant is entitled to them.

Nor can the lessor oí the plaintiff claim under the will, as purchaser. It is to be observed, first, that it was clearly erroneous to hold, that in that character the lessor of the plaintiff was entitled to the whole of the premises; for, upon Ins own argument, that he was an “heir of Polly,” and therefore was entitled, the other.child was also entitled to a moiety, and that descended to the paternal relations. Consequently, the lessor of the plaintiff could, at most, be only entitled to an undivided moiety of the premises, and could not maintain this suit without evidence of an actual puster from that part. But the Court is of opinion, that the lessor of the plaintiff is not entitled at all under the will. The devise is to. the wife for her life or widowhood, and after *347her death, or marriage,.in fee to- her heirs by consanguinity-, as purchasers. That was held in the former case; and further that the child ventre matris was in rerum natura-, at the death of the testator, when the will took effect, - and that he took a vested estate, in exclusion of his uncles and aunts, and of all others. But it is said, it was thus laid down-as between the first child and the uncles and aunts, and not to the exclusion of the wife’s second child. The same reason, however, on which the first child took in exclusion of the wife’s collateral relations-, made it take in exclusion of a second child; that is, that the gift over was in remainder and vested in the child in ventre matris immediately on the death of the testator. It is true, it was formerly held in the-Courts of Westminster, that such a child did not take immediately under a will, but by way of executory devise. But that was overruled in Reeve v. Long by the House of Lords, and the point has been considered as settled ever since, as may be seen in 2 Bl. Com. 169, note, and in the cases cited in the opinion before given on this will. This-is clearly not an executory devise, but a case of a plain remainder, either vested or contingent, after the death of the wife, or after her marriage, if it should first happen. It was treated before as a vested remainder, and the only question was, which of two classes of persons took under the description, who were both in being at the death of the testator. If a vested remainder at that time in either set of those persons, it necessarily followed, thatfuture issue of the wife could not come in, as there is nothing in the will to prevent its going into full effect immediately at the death of the testator. But suppose it to have been contingent at first •. still, the lessor of the plaintiff cannot take as one of the re-maindermen, because the particular estate of the mother, whether determined by her dissent to the will, or by her marriage, did not- continue to his birth, and, conse*348quently, his contingent remainder would have been defeated. In no point of view, therefore, could the plaintifFbe entitled ; and the judgment must be reversed, and a venire de novo awarded.

Pee Cdriam. Judgment accordingly.