#### John Vanhook and others v. John Rogers’s Executor.

From Person.

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 lifetime of Littleton, and before Bird’s eldest child arrived at age. And a question arose, whether these after-born children were entitled to dis. tributive 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 Little-ton’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 withih 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 executors 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 Rodgers, by his last will, “ lent to Ms son Little--ee ton Rogers, one bed and furniture, and three of his- “ negroes, Esther, Ned and Let; and directed his execu- “ tor 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 Ms son Bird’s family : ie and after the death of Littleton, the said negroes, with “ their increase, to bo equally divided between his son Bird’s *179•* 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, he equally divided among his son Bird’s children as afore-<s said.”

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, Rebeccah, John, J ames, Sarah, &c. who were not made parties to the petition 3 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-bom 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,

delivered the opinion of the Court

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 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 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 wiio answer the description at that period, will take 3 and there is a strong leaning in favor of children, to lay hold of any circumstance to postpone the time of division, to embrace all the children, in conformity with the principles governing the Court in *180marriage settlements, and, in the mean time, to allow main-lcnanco the children, if necessary. This brings us to the question,' When is the residue in this case, to be divid- ’ ed ? 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 bo divided after Littleton’s death, and when the eldest child of Bird shall arrive atfull 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 manner1, that is, among the same persons, which might not be the case if different periods wore 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 tlie 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 *181brought to try the right of the after-born children, regardless of the time when born ; whether before or after the two periods before mentioned as the time of division.