Powell v. Powell

AlleN, J.

The doctrine is well established at common law that in a conveyance to children only those children take who áre living at the time of the execution of the deed, because a grantor, a grantee, and a thing granted are necessary requisites of a valid deed, and this principle has- not been modified with us except in favor of a child en ventre sa mere (Heath v. Heath, 114 N. C., 549 ) ; but the rule is otherwise when the conveyance is not direct to the children and there is an intermediate life estate.

Chief Justice Pearson says, in Dupree v. Dupree, 45 N. C., 168 : “A bequest or use limited to the children of A. iiasses only to such children as A. has at the time (and we will suppose a child eh ventre would be included) ; but a bequest or use limited to "the children of A. after an estate to her for life remains open, so as to take in all the children she may have at her death. And this class of cases is put on the ground that by reason of the life estate it does not become necessary to fix the legal ownership until the death of the taker of the first estate”; and this seems to be the generally accepted doctrine.

In 24 A. and E. Enc., 394, the author says: “Where a remainder is given to a class, as, for instance, the children of a designated person, it *563 will be beld a vested remainder unless tbe terms of tbe instrument creating it clearly show that tbe ascertainment of tbe individuals composing tbe class is to be postponed until tbe determination of tbe precedent estate. But sucb a remainder, tbougb vested, will open to let in members of tbe class wbo may be born during tbe continuance of tbe precedent estate.”

Also in Tiffany on Eeal Property, sec. 122 : “Where there is a remainder to a class of persons, as to children, grandchildren, issue, or brothers and sisters, all tbe members of tbe class living at tbe time of tbe testator’s death, or, in case of conveyance inter vivos;

at tbe time of tbe delivery of tbe instrument, take prima facie vested remainders, tbe benefit of tbe provision being, however, extended to others of tbe same class wbo afterwards come into being before tbe determination of tbe particular estate, tbe shares of those previously born being in that case proportionately diminished”; and in 2 Eeeves Eeal Property, sec. 819 : “WTiere a remainder in fee is given to a fluctuating class of persons, and there are no words of survivorship or other qualification, it vests in tbe existing members of tbe class, and opens to let in other members, as they come into being or are ascertained.”

In 13 Cye., page 663, tbe same principle is declared: “Where property is conveyed to a certain person and bis children it has been determined that no title will pass to after-born children. But where a deed creates an estate for life with remainder over to tbe children, tbe remainder will vest in children already born, subject to be opened at tbe birth of each succeeding child.” See, also, Adams v. Ross, 30 N. J. L., 505;

Coursey v. Davis, 46 Pa. St., 25, to tbe same effect.' We are therefore of opinion, as an intermediate life estate is conveyed in tbe deed under consideration, that children born after tbe execution of tbe deed take with those born prior thereto.

Eeversed.