WILLIAM MAYHEW and others v. GEORGE F. DAVIDSON, Ex’r. of JOHN MAYHEW, deceased.
A testator directed “that the shares * * * which my son Presley, &c., are entitled' to under this will, * % * as well as their equal dividend of my estate not bequeathed, he retained by * * * trustees, &c„ for them during their lives, and at the decease of any one of them the property * * * to return to his, hel- or their brothers and sistersHeld, that upon the death of one of the tenants for life, her share devolved upon such of her brothers and sisters as survived her, together with the representatives of such as had died since the death of the testator;
Also, that Presley’s interest in such share is not subject to the trust which affects the property originally given to him.
(The case Hewhirh v. Hawes, 5 Jones Eq., 265, cited and approved.)
Original Bill, filed to obtain a declaration of the respective interests of the complainants in so much of the estate of John Mayhew, deceased, as had first vested in- his daughter Mahala, and also for the payment of their shares as they might he declared.
*48The complainants were the only children of the testator who were surviving when the bill was filed, and the administrator of two that had died since his death. The other child who had outlived the testator was Mahala, whose death is mentioned in the opinion. The defendant was the only^ exeeirtor that had qualified.
The only clause of the will that' was in dispute was as follows: “16th. It is my wish, and I'so direct, that the shares in the lands and negroes which my son Presley and my daughters Matilda, Mahala and Evelina are entitled to under this will, except, &c., as well as their equal dividend of' the residue of my estate not bequeathed, be retained by, and be subject to, the control of William Mayhew and George F. Davidson, trustees as aforesaid, in trust for them, ■said Presley, Matilda, Mahala and'Evelina, during their lives, and at the decease of' any one of them the property and its increase to be divided by said trustees equally among the-children of what was due the parent, and should there be mo children, the property to return to her, his or their brothers and sisters.”
The cause was set for hearing upon bill and and answer, and ordered to be removed to this court, at Fall Term, 1863, of the Court-of Equity for Iredell-county.
Qaldwell, for ..'the complainants.
Boyden, for the defendant.
Prarson, O. J.
The property given to four of the children of the testator, to wit, Presley, Matilda, Mahala and Evelina, is to be held in trust for them during their natural lives, and at the death of any one of them leaving a child or children, the share of the deceased parent is to belong to such child or children ; but if one or more should die without leaving a child or children “the property is to return to her, his or their brothers and sisters.” Mahala *49died without leaving a child, and the question is, Who take under the description, “her brothers and sisters?”
The will takes effect and speaks at the time of the testator’s death, and the brothers and- sisters of Mahála living at that time-areas clearly designated by this description, as if they had been named. These-words do not include brothers and sisters who may have ''died in the testator’s lifetime. For-they would naturally be referred'to as “deceased brothers and sisters.” ’ The children of such would be spoken of as Mahala’s nephews and nieces. On the other hand the words cannot be restricted to brothers and sisters living' at Mahala’s death; for to give them that effect, it would -be necessary to * add the words “living at her death,” or to say, surviving brothers and sisters, or words of a similar import.
We have here then a contingent limitation where the persons are certain and the event' uncertain. Interests of this sort,- if in land, are -transmissible by descent; if in personalty, devolve upon-the personal representative ; Newkirk v. Hawes, 5 Jones Eq., 265.
The property, to which Presley-becomes entitled as one of these brothers,- will not-be subject to the trust which affects the-property originally given to him.
There will’be a decree declaring the Tights -of the parties according to this opinion. Themosts will be paid out of - the fund.
-Fjer Curiam.
Decree accordingly.