In Young v. Young, 97 N. C. 132, the court said: "The contingent remainders limited on the termination of the life estate are to such of her children as are then living and to the then living issue of such as have died leaving issue, so it is impossible to tell who will be entitled when the life tenant dies.
In Miller, ex parte, 90 N. C. 625, there was a devise of land to A. for life, with remainder to such children as she may leave her surviving, and it was held that the children took contingent remainders.
Without resorting to the text-books, these authorities abundantly show that the element of survivorship in our case fully characterizes the limitation as a contingent remainder.
In view of the construction we have placed upon the language of the will, and of the decisions of our own court, we do not deem it necessary to review the many English and other cases cited by counsel. None of them are directly in point, and even if they were, we would not be inclined to depart from our own decisions, which, as we have already remarked, are, in our opinion, well supported by principle as well as authority. If the will should read as we have construed it (and of this we think there can be but little doubt), it is clear that these remainders are contingent. The case most strongly pressed upon us in the argument is Ex parte Dodd, Phil. Eq. 97. The decision turned upon the construction placed upon the language of the will, under which it seems that the limitation was general, that is, to all of the children of the life tenant, or the issue of such children. The element of survivorship as a condition to the vesting of the remainder was considered as absent, and it was held that the remainder was vested as to the children living, subject, of course, to open and let in after-born children, or the issue of such as should die before the life tenant. That this is the ratio decidendi of the case, is apparent from the opinion of the court in Irvin v. Clark, 98 N. C. 437. The limitation there was "to Margaret Irvin and her husband during their natural lives, and to descend to the children of the said Margaret equally." This was treated as a vested remainder, but the court was careful to say that, " if the devise had been to those children living at the death of the mother, there would have been a contingent and not a vested interest in either, for until that event occurred it could not be known who would take, and in such case the contingent interest could not be sold by a court of equity. But when the gift is general, not being confined to survivors, when to take effect, it is otherwise, and, by representation, those who may afterwards come into being are concluded by the action of the court upon those whose interests are vested, but whose possession is in the future. The distinction is pointed out by Battle, J., in delivering the opinion in Ex parte Dodd.''
As we have seen, the remainders to the sons being limited only to such of them as survived their mother, and Simpson Jarrett White-sides, one of the said sons, having died in 1874, before the death of the life tenant in 1887, it must follow that his children, the plaintiffs, acquired the interest in controversy as purchasers, and the only question which remains to be determined is whether they are precluded from asserting their title by the conveyance of their father, and the proceedings for partition under which the land was sold and purchased by one Davis, under whom the defendant claims.
2. If the view we have taken of this limitation is correct, it is hardly necessary to cite authority in support of his Honor's ruling that the plaintiffs are not rebutted by the conveyance and warranty of their father in 1867. The case of Flynn v. Williams, 1 Ired, 509, is not in point. It was there held that where one having an estate of inheritance in possession sells the same with general warranty, his heirs are bound, whether the warranty be lineal or collateral, and whether they have assets or not. In the present case, no estate whatever vested in the ancestor, and his children who take as pur-chasers under the will, are, therefore, not bound by his warranty. Even had a life estate vested in him, his warranty would likewise have been ineffectual by way of rebutter. The Code, § 1334; Starnes v. Hill, supra.
3. Were the plaintiffs bound by the sale for partition? It appears that in 1870 John Kimberly (who had purchased the interest of Simpson Jarrett Whitesides), together with the life tenant (Catherine) and the other contingent remaindermen, united in a petition for the sale of the land for partition. Under a decree rendered in this proceeding the land was sold and T. K. Davis became the purchaser. The defendant claims under the said Davis, and denies the claim of the plaintiffs that they are tenants in common with him to the extent of one-sixth interest in the said land. The life tenant (Catharine) having died in 1887, the plaintiffs' contention must be sustained, unless they are bound by the decree of sale. Neither these plaintiffs (if, indeed, they were in existence at that time) nor their father were parties to the proceeding, but it is insisted that they were represented by others of the same class, or at least by the life tenant. It is plain that the other parties could not represent these plaintiffs as a part of the same class, and upon this point it is only necessary to refer to Irvin v. Clark, supra, and the authorities therein cited. Equally untenable is the position that these contingent remaindermen were represented by the life tenant. This would be a very radical departure from well settled principles, and has received no countenance from this court. In Overman v. Tate, 114 N. C. 571, we quoted, with approval, the language of Lord Hard-wicke in Hopkins v. Hopkins, 1 Atk. 590, that "if there were so many contingent limitations of a trust, it is an established rule that it is sufficient to bring the trustees before the court, together with him in whom the first remainder of inheritance is vested, and all that may come after will be bound by the decree, though not in esse, unless there be fraud and collusion between the trustees and the first person in whom the remainder of inheritance is vested." In referring to the application of this principle in one or two jurisdictions, where the first remainder was only for life, we stated that we were not prepared to adopt such a view, and a fortiori would it be rejected in a case like the present, where the limitations are not in trust but purely legal? Under the peculiar circumstances of the case referred to, we applied the principle declared by Lord Hardwicke, the fact that the limitations were in trust not having been adverted to in a previous ruling. The decision was not based upon the idea that the child of Annie was of the same class as the issue of Caswell, but this was mentioned as a circumstance tending to show that but little prejudice would probably result by the application of the principle above stated, under the particular limitations then before us.