#### JULIAN PICOT by his Guardian vs. ROBERT ARMISTEAD and Wife.

A. by his last will, after making several bequests, devised as follows: “ The balance of my estate I dispose of as follows; I wish my wife, Marietta, to have the use of the same during her life or widowhood. If she marries, then I give her the one half of this balance of my estate, to her and her heirs, the other'half to my child or children living at my death. If my child or children should die before they arrive at the age of twenty-one or mariiagé, then'I give their estate to my wife for life, remainder to my father for life, remainder to my mother for life, remainder to the survivor in fee simple. For it will be seen that they, my children, will have some estate in possession on the marriage of my Wife. Should my child or children either arrive at the ■ age of twenty-one or be martied, then I will that the one half of my estate before given them, be immediately delivered to them, their heirs and assigns.” ' A. died* leaving- his wife and two children surviving him. His widow married, and then one of his children died intestate, under age, and unmarried. Held that the deceased child took, on the marriage of its mother, a vested interest in the share of the estate devised to it, subject to the ulterior contingent remainders; and that, upon its death, that portion of the estate, which was realty, descended to the surviving child, and that portion, which was personalty, was to be equally divided between the mother and the surviving child, in both cases subj'ect to the ulterior contingent remainders. Held further, that there were no cross-remainders by implication between the children, and that the remainders over to the wife &c. could only take effect on the death of both the children, under age and un-.jnstrried.

The case of Davis v Shanks, 2 Hawks’ Rep. 117, cited and disapproved.

This .cause was transmitted, by consent, from the Court *227of Equity of Washington county, at Spring Term, 1842, to the Supreme Court. '

The plaintiff’s bill,, which was filed at the Spring Term, 1842, of Washington Court of Equity, charged: That Peter O. Picot, the father of the plaintiff, having made a last will and testament in due form of law to pass real estate, departed this life in the ymar 1833 — that of the said will he appointed Julian Picot, Sen., the executor, who, at November Term, IS33, of Washington County Court,, proved the said will, and took upon himself the burthen of executing the same — that the said executor assented to the legacies given in and by the said will, and delivered the legacies, to which she was entitled, to the legatee, Marietta — that the said testator, at the time of his death, left his father Julian Picot, his mother Hannah, his wife Marietta, and the plaintiff, surviving him — that his widow, Marietta, in about two months after the death of her husband, gave birth to a daughter, Elizabeth, who died about twelve months thereafter — that Hannah Picot, the mother of the testator, has been dead several years, and that Marietta, the widow of the said testator, intermarried with the defendant, Robert Armistead, in the year 1841, both of whom, as well as Juliau Picot, the grandfather of the plaintiff, are still alive. - The bill further charged, that the testator charged the debts that wer.e due to him with the payment of the debts he owed, and gave to his father, Julian Picot, whatever balance might remain of the debts, which were due to him, after paying the debts he owed — that the residue of his estate, which consisted of ne-groes and other personal property of the value of ten thousand dollars, and real estate of the value of three thousand dollars, he bequeathed and devised as follows: “I wish my wife Marietta to have the use of the same during her life or widowhood. If she marries, then I give her the one half of this balance of my estate, to her and her heirs; the other half to myr child or children living at my death. If my wife does not marry, then, at her death, my will is, that the portion given her for life be given to my child or children living at my death. If my child or children should die before they arrive at the age of twenty-one or marriage, then I give *228their estate to my wife ior life, remainder to my father for life, remainder to my mother for life, remainder to thesurvi-vor in fee simple,” a copy of which will was appended to the said bill and made part thereof. The bill further charged that the said Marietta, after the death of her said husband and before her intermarriage witli her present husband, sold a large portion of the personal estate, which was bequeathed to her during her life or widowhood, and after her said intermarriage received large sums for the hire of negroes, amounting in all to eight hundred dollars or some other large sum of money — that by virtue of the said will, in connection with the marriage of the said Marietta and the death of the said Elizabeth, the plaintiff is entitled to one half of the sales of the said property and hires of negroes, and that he had, by his guardian, since the said intermarriage, called upon the said Robert to account with and pay over to his said guardian one half of the said sales of property and hire of negroes, which the said Robert refused to do, insisting that he, in right of his said wife, was entitled to three fourths of the proceeds of the said sales and hire of negroes — and that he was entitled to retain the remaining fourth, or the greater part thereof, in payment of expenses incurred by his said wife before her intermarriage with him, in boarding, clothing and educating the plaintiff. The bill charged, that if any such expenses were incurred by the said Marietta, she did not intend, at the several times, when she paid them off, nor at any other time before her intermarriage with the said Robert, to make a charge for the same against the plaintiff— and that if she did intend to charge and did actually charge the plaintiff therewith, she ought not to be allowed them in this court, forasmuch as the plaintiff had no income whatever out of which they could have been paid, the plaintiff having no interest in any estate whatever, except what he derived under the will of the said Peter O. Picot. And the bill then prayed for an account, for a decree for what should be found due the plaintiff, and for general relief.

The following is a copy of the will of Peter O. Picot referred to in the bill;

*229 ss. State of North Carolina, Washington county.

My last will and testament is as follows: That my debts shall be paid out of the debts due me; then all the judgments, bonds, notes and accounts due me I will and bequeath to my father, Julian Picot, his heirs and assigns. The balance of my estate I dispose of as follows: 1 wish my wife, Marietta, to have the use of the same during her life or widowhood. If she marries, then I give her the one half of this balance of my estate, to her and her heirs — the other half to my child or children living at my death. If my wife does not marry, then, at her death, my will is, that the portion given her for life be given to my child or children living at my death. If my child or children should die before they arrive at the age of twenty-one or marriage, then I give their estate to my wife for life, remainder to my father for life, remainder to my mother for life, remainder to the survivor in fee simple. For it will be seen that they, my children, will have some estate in possession on the marriage of my wife. Should my child or children either arrive at the age of twenty-one or be married, then I will that the one-half of my estate before given them be immediately delivered to them, their heirs and assigns. I leave my wife the guardian of my children, and my father the executor of my estate. Signed &c. Oct. 15th, 1832.

(Signed) P. O. PICOT.

(Attested by two witnesses.)

The defendants, Robert Armistead and Marietta his wife, answerred, and admitted all the material allegations in the plaintiff’s bill, and insisted that, according to the true construction.of P. O. Picot’s will,.on the death of Elizabeth, the whole of her share of the estate went over to the said Marietta, under the remainder limited in the said ¡will, first for life, and contingently in fee if she survived the father, Julian Picot,

A. Moore and Iredell for the plaintiff.

Badger for the defendant.

*230Daniel, J.

We are called upon to put a construction on the last will of Peter O. Picot. We are of the opinion, first, that on his death his wife was tenant for life of the real and personai estate, remainder to the two children; and that these estates were subject to be changed and altered on the contingency of the subsequent marriage of the widow. The child in ventre sa mere (Elizabeth) was to be considered a child in esse and living at- the testator’s death. Doe v Clark, 2 H. Blac. 379. Mogg v Mogg, 1 Mer. Rep. 654. Trower v Butts, 1 Sim. & Stu. 181. 1 Powell on Dev. 326, (marginal page Jar. Edit.) Secondly; the contingency happened — The widow married the defendant Armis-tead. And then by force of th.e executory devise, the wife took a moiety absolutely in the real and personal estate. “ The other half ” (in the words of the will) was to go to “ his child or children living at his death.” Thirdly; one of the testator’s children (Elizabeth) died before the marriage of her mother with Armistead, and before she armed at the age of twenty-one years or married. The defendants claim the share (which would have belonged to Elizabeth if she had lived) under this clause in the will: “If my child or children should die before they arrive at the age of twenty-one or marriage, then I.give their estate to my wife for life &c.” The complainant claims the said share, contending that there were cross-remainders between him and his sister by implication. We are of opinion that the defendants have no right to the said share of the deceased child, by force of the above-mentioned limitation in the will. For the testator intended that the moiety of his estate, which he had given to his children, should go over to his wife for life &c. only on the event that both the children died before twenty-one years of age or marriage. These words, “ die before they arrive at the age of twenty-one or marriage, then I give their estate to my wife for life &e,” connected with the fact, that the surviving child is entirely omitted in the clause creating the ulterior limitation, go strongly to prove that such ulterior limitation was not to take effect, during the life of either of the children.

Fourthly; was there among the children a eross-limiia*231tion by implication? We think that there was not. The contingent executory devise to the children of a moiety of the testator’s estate,- on the event of the marriage of the widow, became vested on that event taking place. If the moiety to the children did not vest then, wc would ask when could it ever vest? We think that it vested then, subject to be divested on the death of all the children before the age of twenty-one or marriage. Elizabeth being a child, in law, living at the death of the testator, the contingent executory devise of one fourth to her, on her death was transmitted by the laiv to her representatives. And on the marriage of the widow, it became vested-in the said representatives, subject to be divested and go over on the event,that all the children died before-lwenty-one and unmarried. The last event has not arrived, and it may never arrive. Why then take from the representatives ot Elizabeth her share, and turn it over to Julian? If Julian should die before twenty-one or marriage, then, and not till then, will the representatives of Elizabeth be compelled to give up her share to the ulterior devisees and legatees. To introduce cross-remainders- in such a case as this, would be to divest a clear gift to Elizabeth, upon reasoning merely conjectural; for the argument, that the testator could not intend the retention of the property by the respective devisees to depend upon the prescribed event happening-to the whole, however plausible, scarcely amounts to more than conjecture. 2 Pow. on Dev. 625 (Jar. Edit.) That such an executory devise as this became a vested interest, immediately on the . event happening, and that there was not a cross-limitation by implication among the children on the death of either of them, has been expressly decided by Lord Alvanley, master of the Rolls in Machell v Winter, 3 Ves. 236, and although overruled by the Chancellor on appeal, 3 Ves. 536, he still held to his opinion, see Booth v Booth, 4 Ves. 402. Afterwards a case, like the present in all its points, (Skey v Barnes, 1 Mer. 334) came on for a hearing before Sir William Grant. He held that the bequests vested immediately, and that the share of the deceased child belonged to her representatives, subject to be divested and go over, on the event of all the children-*232dying before twenty-one or marriage. Mr. Jarman says, in his edition of Powell on Devises, page 630, that the case of Skey v Barnes, may, it is conceived, be considered to have g^ed ¡he rale of law on this important subject. The case of Scott v Bargeman, 2 P. W. 68, was decided in fa.vor of ■the surviving child, on the supposition, that the shares of the two deceased children were not absolutely vested. And Lord Rosslyn decided the case of Machell v Winter, 3 Ves. 536, on the same notion, that the shares of the two grand-sons, who died under 21, were contingent and not vested estates. All the Chancellors in England, who have said any thing on the subject, admit, that, if the legacy or devise is once vested, it will go to the representatives, on the death of a child in such a case as this, and the surviving ■child would not take by way of cross-limitation by implication. The case of Davis v Shanks, 2 Hawks R. 117, appears to be in collision with the decision we are now about to make. That case does not appear to have been argued, and the court, in giving their opinion, seem to have gone on decisions, governing devises to several as tenants in common in tail, with a remainder over in fee to a third person, on the event of all the tenants in tail dying without issue. In such a ease cross remainders between the tenants in tail hold of necessity: the testator has shown an intention to disinherit his heirs, and he has declared in his will, that the ulterior devisee in remainder shall not fake any thing in the land, until all the tenants in tail shall die without issue. If, then, one of the tenants in tail die without issue, that interest will go to the surviving tenants in tail, by way of cross-remainder by implication. Clacke's case, Dyer 330. Holmes v Meynell, Sir T. Ray. 452. S. C. 2 Show. 135, Gilbert v Witty, Cro. Ja. 655. These are the cases, relied on by the court in Davis v Shanks, to support their decision. But when we come to examine these cases, we discover that they relate to quite a different subject from that, which was then to be tried and decided, and that they do not govern the case, which was then before the court. All the cases, relied on in the decision of that case, related to the rule, creating cross-remainders between tenants in tail, and had no bearing *233on a case like this.

Fifthly; the plaintiff is the sole heir and representative of his sister, as to her real estate. And the personal estate of the child Elizabeth must go to her administrator to be distributed among her next of kin, who are her brother Julian and her mother, the present defendant. These representatives take the estates as above described, subject to be divested,' and go over to the ulterior remainder-man, on the death of Julian under 21 and unmarried.

Perhaps the parties will be satisfied with this declaration and adjust tire matters in dispute between themselves. But this court will not take the accounts, until an administrator of the deceased child be made a party.

By consent the cause was remanded to the court below.