#### EDWABD MASON v THOMAS WHITE AND WIFE et al.

1 legacy given immediately to a class, vests absolutely in the persons composing that class at the death of the testator; and a legacy given to a class subject to a life-estate, vests in the persons composing that class at the death of the testator, but not absolutely, for it is subject to open so as to make room for all persons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate.

Vhere one thus included in a class with an intervening estate, died before the failing in of such estate, there is no ground for holding that his estate was divested by this event

This was a petition for the division of slaves, which came up from the County Court, and was tried before Heath, J., at the Spring Term, 1861, of Perquimons Superior Court.

The case is this :

*422In the year 1838, Henry Hollowell died, leaving a last will, which was duly proved and recorded. In the said will, after a trifling legacy to his brothers and sisters, occurs the following clause: “ I give and bequeath to my beloved wife, Elizabeth Hollowell, the remainder of my estate, both real and, personal, during her natural life, and at her death to be equally divided among her children.”

At the time of the death of Henry Hollowell, his wife, the said Elizabeth, had three children by a former husband, to wit: Sarah, who intermarried witfi the plaintiff, Edward Mason, Edward B. Sutton, and Anne, intermarried with Thomas H. White. Mrs. Mason was alive at the death of the testator, Hollowell, but died before the death of her mother, the said Elizabeth, and her .husband took letters of administration on her estate, and filed this petition for her share of certain slaves which passed under the said will.

The surviving brother and sister contested the right of the plaintiff to have a share of these slaves.

His Honor, in the Court below, decided in favor of the plaintiff, and the defendants appealed to this Court.

Wmston, Jr., for the plaintiff.

No counsel appeared for the defendants in this Court.

Pearson, C. J.

The question presented is too plain to admit of discussion; a legacy given to a class immediately, vests absolutely in the persons composing that class at the death of the testator; for instance, a legacy to the children of A: the children in esse at the death of the testator take estates vested absolutely, and there is no ground upon which children who may be born afterwards can be let in.

A legacy given to a class subject to a life-estate, vests in the persons composing that class at the death of the testator; but not absolutely; for it is subject to open, so as to make room for all persons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate. This is put on the ground that the testator’s bounty *423should be made to include as many persons who fall under the general description or class as is consistent with public, policy; and the existence of the intervening estate makes it unnecessary to settle absolutely the ownership of the property until that estate falls in. Eor instance, a legacy to A for life, and jhen to her children, or, “ then to be divided among her children,” vests in the children who are in esse at the death-of the testator, but it vests subject to open, and make room for any children who may afterwards be born before the falling in of the life-estate, so as to include as many as possisible until it becomes necessary, on the ground of public policy, to fix the ownership absolutely.

■ In our case, the plaintiff’s intestate was one of the class at the death of the testator, and although the legacy vested, subject to open and let in any persons who might come into existence afterwards and answer the description, yet, there is no ground on which it can be contended that the death of one of the legatees divested her legacy in favor of the surviving legatees. To have this effect, there must be words of exclusion ; e. g. to the children of A, living at the time of her death.

Per Curiam,

There is no error. Judgment affirmed.