{ "id": 8687428, "name": "John Vanhook and others v. John Rogers's Executor", "name_abbreviation": "Vanhook v. Rogers's Executor", "decision_date": "1819-05", "docket_number": "", "first_page": "178", "last_page": "181", "citations": [ { "type": "nominative", "cite": "3 Mur. 178" }, { "type": "official", "cite": "7 N.C. 178" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [], "analysis": { "cardinality": 311, "char_count": 6706, "ocr_confidence": 0.389, "pagerank": { "raw": 5.388228556925795e-07, "percentile": 0.9441278236684841 }, "sha256": "6531ace99bfe77dcb34952eb1f85152edb413d3cad3bdda6c9ae51b09eb2ea21", "simhash": "1:b207b1763a449ed2", "word_count": 1184 }, "last_updated": "2023-07-14T14:45:47.457789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John Vanhook and others v. John Rogers\u2019s Executor." ], "opinions": [ { "text": "HeNdersoN, Judge,\ndelivered the opinion of the Court\nPersons 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\u2019s 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\u2019s 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 marriage 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- \u2019 ed ? And this depends on the time the negroes are to be divided, and the effect of the words \u201c as aforesaid,\u201d in the residuary clause.\nThe negroes are to bo divided after Littleton\u2019s death, and when the eldest child of Bird shall arrive atfull age; that is, Littleton must be dead, and Bird\u2019s 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\u2019s bounty more equally shared. We may suppose the testator intended this fund to be divided when Bird\u2019s eldest child should arrive at full age, regardless of the fact of Littleton\u2019s 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 brought 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.", "type": "majority", "author": "HeNdersoN, Judge," } ], "attorneys": [], "corrections": "", "head_matter": "John Vanhook and others v. John Rogers\u2019s Executor.\nFrom Person.\nTestator 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\u2019s 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\u2019s children, as aforesaid.\nBird had several children born after the death of the testator, in the lifetime of Littleton, and before Bird\u2019s 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.\nHeld, that they were entitled equally with the children born before the testator\u2019s 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\u2019s death, and \u2022when Bird\u2019s 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.\nWhere 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.\nWhere 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\u2019s 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\u2019s death, or in ventre sa mere, are entitled.\nJohn Rodgers, by his last will, \u201c lent to Ms son Little--ee ton Rogers, one bed and furniture, and three of his- \u201c negroes, Esther, Ned and Let; and directed his execu- \u201c tor to hire out said negroes yearly, and apply the hire \u201c to the support of his son Littleton, during his natural \u201c life $ and the overplus, if any, he directed to be yearly \u201c applied towards the support of Ms son Bird\u2019s family : ie and after the death of Littleton, the said negroes, with \u201c their increase, to bo equally divided between his son Bird\u2019s \u2022* children, and their heirs, as they should come to lawful \u00ab age.\u201d In another clause of the will, the testator directs. '* that \u201c 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\u2019s children as afore-