First Security Trust Co. v. Henderson

Denny, J. The question presented for our determination is whether the testator intended that if any one of his daughters should die before the date set for the final distribution of his estate, her part should be paid to her children living at the time of her death or to her children living at the date of distribution. The testator authorized his executor to keep his estate intact as nearly as possible, until the expiration of five years from and after the death of his wife. In the meantime the executor was given authority to sell, exchange, reinvest or dispose of any real estate, stock, bonds, or other securities owned by the testator, as in its judgment might be best for the estate. Under the provisions of the will, during the lifetime of his wife she was to receive the sum of $400.00 per month and the use of the family residence. The four daughters were to receive $100.00 each per month until the death of their mother, at which time or within 90 days thereafter they were to receive $10,000.00 each. Other substantial bequests were made in the will. The executor was charged with the management and control of this estate from testator’s death until the expiration of five years after the death of his wife. Upon the death of the testator, each of the four daughters named in the residuary clause of the will became vested with an interest in the estate, but the right of possession was contingent upon being alive at the time fixed by the testator for the division and distribution of the estate. One daughter, Pearl Elliott Salassa, died before the *570 time fixed for such division and distribution, leaving surviving ber two children, Nancy S. Moses and Miles 0. Sherrill, and two grandchildren, the defendants lames Yernon Sherrill and Joseph Elliott Sherrill, Jr., children of her son Joseph Elliott Sherrill who predeceased her. Nancy S. Moses likewise died before the time fixed for the division and distribution of the estate, leaving one child, the defendant "Walter S. Moses. It makes no difference whether Nancy S. Moses took a vested or contingent interest in the estate her mother would have taken had she been alive at the time fixed for its division and distribution. Thompson v. Humphrey, 179 N. C., 44, 101 S. E., 738; Bank v. Johnson, 168 N. C., 304, 84 S. E., 355. She inherited no interest therein from her mother and under the terms of the will, the executor is directed to pay the legacy or bequest of such deceased daughter or daughters to their then living children share and share alike. Cilley v. Geitner, 182 N. C., 714, 110 S. E., 61; Thompson v. Humphrey, supra; Whitesides v. Cooper, 115 N. C., 570, 20 S. E., 295; Anderson v. Felton, 36 N. C., 55. Therefore, the children of a deceased daughter under the provisions contained in Item Five of the testator’s will, must take, if they take at all, by purchase from the testator and not as heirs of the mother. Fulton v. Waddell, 191 N. C., 688, 132 S. E., 669; Green v. Green, 86 N. C., 546; Hawkins v. Everett, 58 N. C., 42. Even so, Nancy S. Moses and Joseph Elliott Sherrill, having died prior to the time fixed by the testator to call the roll and distribute the legacy or bequest, to the then living children of Pearl Elliott Salassa, no interest in the estate passed to them or to their heirs. Hence, the appealing defendants have no interest in this estate unless they are beneficiaries under the will. And the will makes no provision for them. It ends with the children of their grandmother, Pearl Elliott Salassa, who may be living at the time for the division and distribution of the estate. Miles O. Sherrill, being the only child of Pearl Elliott Salassa then living, he takes the entire interest his mother would have taken had she been alive at the time fixed for the division and distribution of the estate. This view is in accord with the general rule that when property is left to children or children living at the time fixed for payment or division, when there are persons that answer the description, grandchildren and great grandchildren will not be included in the distribution of such property. Taylor v. Taylor, 174 N. C., 537, 94 S. E., 7; Lee v. Baird, 132 N. C., 755, 44 S. E., 605; Mordecai v. Boylan, 59 N. C., 365; Ward v. Sutton, 40 N. C., 421; Denny v. Closse, 39 N. C., 102. The judgment of the court below is Affirmed.