
    Edward H. Purcell vs. Catharine Purcell, Guardian ad litem of James S. Purcell’s children.
    Heard before Chancellor J. Johnston, at Charleston, January Term, 1S35.
    DECREE_This case has been submitted upon written arguments. The whole case will be best collected from the pleadings, exhibits, and papers therein referred to, and from facts stated in the written arguments.
    There can be no question, that by the deed of August 22d, 1795, Mr. Blake divested himself of all power and control over the property carried by it, until, for want of operation in the deed, the property should revert. The will executed three days afterwards, could not operate upon the property, then no longer his. 'It would be very extraordinary if he could explain, bv will, an instrument already operating. What he had written he had written, and it must operate according to its words. He could not recall, modify, or explain, a single expression. If the will could ever operate, the only contingency upon which it could operate, never happened. Besides, the codicil controls the body of the will, and expresses tiie same intention expressed in the deed. By the deed, Mr. Blake conveys, in trust for his daughter, Mrs. Purcell, duri¡ g her life, then to her husband for lile, then to such of hei issue as should be living at her death, and shall attain majority, or marry, as tenants' in common. By the pleadi igs, it appears Mrs. Purcell outlived her husband, and died in 1834, leaving issue liying at her dead), as follows: the plaintiff, (one of her sons,) who has attained full age; .and three minor and unmarried children of her other son, and only other child, (James S. Purcell,) who, although he came of age, was not living at her death.
    It is stated, in the argument, that the plaintiff has also two children, “issue” of Mrs. Purcell, but whether they were born during their grandmother’s life, so as to be living at her death, is not Stated explicitly. Besides, we must be governed by the pleadings.
    The persons described in the deed must all take : none others can take.
    issue, unless restrained by expressions shewing a different intent, includes ail lineal descendants 1 Can there be a doubt of ill is ?
    The only restriction expressed in the deed, is first, to such as ,should he living at Mrs. Purcell’s death. This cuts out mes S. Purcell, and substitutes his children. The eveut prove-- -bathe never had an interest under the deed. His children, lit1-,g <u their grandmother’s death, took for themselves, and not through him, as representatives of him. On the other hand, Edward M. Purcell, the plaintiff, took at his mother death, and never before. If his children were then bom and living, they also took as issue. They were -as much issue of Mrs. Purcell, as he was.
    The second restriction upon the issue, is, tiiat they must attain majority, or marry.
    This, James S. Purcell’s children, from the statement in the pleadings, of the times of their births, have not done. It is probable, that the plaintiff’s children, if at all entitled, have not. If all the children aie under age, and unmarried, the only difference between their cases, and thai of the plaintiff, is this : his has become a vested right; theirs is yet contingent, and cannot be definitely arranged, till they all attain age, or marry, or die minors, or un, married.
    All the issuo who survived Mrs. Purcell, took at her death, per capita, an apparent right to the property. As auy of them attained age, or married, an aliquot share might have been declared his ; leaving the rest to be set apart afterwards. If any died in infancy and unmarried, its share would go to the survivors, when their rights should become perfect.
    Under this view, I would now declare the plaintiff’s rights, if I knew, from amending the pleadings, whether his children were born before Mrs. Purcell’s death ; and then I could order partition, appointing a trustee for -the shares of all th >se yet infants, and unmarried; reserving the right to make sub-partitions according to future circumstances.
    As it is, i can only express my opinion; leaving the parlies to amend and apply for orders according to the real stale of facts. It may he forwarding the business, to order the commissioner to en. quire and report, whether it will be far the interest of the minors to sell the land in Abbeville, and upon what terms ; also to report a suitable trustee as above suggested, and the form of an order ap. pointing him, and expressing the trusts ; and it is ordered ac™ eordingly,
    J. JOHNSTON.
    Complainant appeals, and hopes the decree may be reversed, on one of the two following grounds :
    1. That complainant, as the only surviving child of his mother, Sarah B. Purcell, living at the time of her death, is entitled, whether under the deed, or the will, to the whole of the trust estate of the said Edward Blake.
    2. That if the court should think otherwise, on the first ground, the chancellor should have decreed to the complainant the moiety of the estate included in the deed and will of Air. Blake.
    CViotoLL & PoiiTEH,'for motion,
    JiiNG, contra.
    Filed 13th March, 1837.
   Chancellor D. Johnson

delivered the opinion of the court.

The court concur with the presiding chancellor, that the will of Edward Blake could not control the dispositions of the deed, previously executed ; and that under the limitation over to such of the issue of his daughter, Sarah Purcell, as should be living at the time of her death, and should live to attain majority, or marry, the children of her deceased son, James S. Purcell, were entitled to take in common with the complainant, her surviving son, per capita, subject to be divested, in the event of their dying unmarried, and within the age of majority.

The decree of the Circuit Court is, therefore, affirmed.

DAVID JOHNSON.

We concur,

J. JOHNSTON,

WM. HARPER.  