
    ALBERT G. ANDERSON, Adm’r. of MARY ANDERSON vs. ELISHA FELTON et al. Ex’rs of NATHAN THATCH et al.
    Where a testator, after giving his manor plantation to his son, and two other plantations to his four daughters, and providing that all his lands should be rented, and his negroes hired out until his youngest daughter became fiftéen years old, and that his children should “ be educated and boarded out of the estate,” proceeded as follows: “ I likewise will, that at the time my youngest daughter S. T. arrives to the age of fifteen years, all my negroes, money and perishable estate, shall be divided between all my children. In case any of my children should be married before S. T. arrives at fifteen years of age, then my will is, that his or her board shall be stopped, and no further charge be paid for him or her until S. T. arrives to fifteen, when he or she shall receive his or her proportionable part;” it was held that the legacies to the children were not vested, but contingent upon their living to the period when the testator’s youngest daughter should arrive to the age of fifteen years, or, in case of her death, to the time when she would have arrived at that age had she lived, and that only those of the children who were alive at that period, could take.
    From the pleadings in this case, it appeared that Nathan Thatch 'died in the year 1832, leaving a will, in which, after providing for the payment of his debts, and the working of the then growing crop, he devised and bequeathed as follows: “ I will, that all my perishable estate be sold. I will that all my lands be rented out, and all my negroes be hired out, until my youngest daughter Sarah becomes fifteen years old— and I will that my children that have not been educated, be educated and boarded out of the estate; and I will that my mother be supported out of my estate during her natural life; and that my two plantations near Bethel M. House shall belong to my four daughters, Rosanna, Mary, Jane and Sarah; and I also give the plantation that I now reside on to my son, Benjamin Thatch. And I likewise will, that at the time my youngest daughter, Sarah Thatch, arrives to the age of fifteen years, that all my negroes and perishable estate shall be divided between all my children, and money likewise to be divided. In case that any of my children should be married before Sarah arrives at fifteen years of age, then my will is, that his or her board shall be stopped, and no further charge be paid for him or her until Sarah arrives to fifteen, when he or she shall receive his or her proportionable The testator had no wife at the time when his will was made, and left no widow surviving him, but his five children Were all living at his death. Maiy, one of the testator’s daughters named in his will, intermarried with the plaintiff in December, 1835, and shortly thereafter died some time in the year 1836. Sarah, the youngest-daughter, died shortly after the death of the testator, intestate, unmarried, and before she had arrived to the age of fifteen years; at which age she would have arrived, had she lived, in October 1838. The plaintiff, after the death of his wife, took out letters of administration on her estate; and in March, 1839, filed this bill, in which he claimed that the legacy of the “negroes and perishabie estate” and “money” to the children of the testator, was a vested one, and that after the time When the youngest daughter Sarah would have arrived at the age of fifteen years, had she lived, the said negroes, money and perishable estate, were divisible among the children then living, and the representatives of those who had theretofore died. The answers, admitting-the facts as above stated to be true, insisted that the legacy was contingent, and that as the plaintiff’s idtestate had died before the period at which the property was to be divided, she was entitled to no share thereof.
    
      W. A. Graham for the plaintiff.
    The legacies to all the children vest at the death of the testator, but the period for “division” is postponed until the youngest child would have attained the age of fifteen years.
    1. The land is certainly devised in presentí, to the children; two of the plantations to the four daughters by name, and the homestead to. the son; yet, by the preceding clause of the will “the land is all directed to be rented out, as well as the negroes to be hired out,” until S.arah “ becomes” fifteen <fec. The interest of Mrs. Anderson in the land was vested. The negroes seem, in the testator’s mind, to have been coupled with the land; and the perishable estate is to be “ divided” as the negroes: Hence it is inferred that all three follow the express disposition which is made of the land.
    
      2. The terms used by the testator throughout, shew he supposed his children were to take his estate, as a matter of course, without express words of devise or bequest, and the main purposes of his will are to' designate when the enjoyment shall commence in severalty, and how the property (of all kindsj shall be partitioned among his children respectively. Indeed all the others are secondary and temporary — such as charging the estate with maintenance of his mo* ther — renting the land and hiring the negroes for a definite time — .education of children &c. Thus he says “ my two plantations shall belong to my four daughters,” Sea. — “ all my negroes and perishable estate shall be divided between all my children, and money likewise be divided” — “ when he or she shall receive his or her proportionable part”; all of which terms consist with the idea that the testator supposed his children all tenants in common at his death, and that he was merely directing the allotments among them, and designating when they should take the property into possession. This view is fortified by the fact that
    3. He makes no limitation over of the property in any contingency. — neither in the event of death, marriage, birth of issue, nor any subsequent occurrence whatever. If then the interests of the deceased legatees were not vested, the surviving brothers and sisters do not succeed to their rights as their next of kin, nor as legatees under the testator’s will, but as next of kin of the testator, upon the ground that he died intestate, as to those parts of his estate,- when it is manifest, that he designed by his will to dispose of all his earthly interests.
    4. Whatever a testator does not give away by will, descends to his heirs, or is to be divided among his next of kin. Two fifth parts of this estate are certainly not bequeathed to the defendants. If, then, they be not willed to Mary and Sarah, deceased, they are not disposed of by will, but go, at his death, to the testator’s next of kin, of whom Mary and Sarah were two. But a testator shall not be presumed to have died intestate as to any thing, if the contrary can be inferred.
    5. If the terms of the alleged contingency, “ until Sarah, nry youngest daughter, becomes fifteen;” “at the time my youn£est daughter, Sarah Thatch, arrives to the age of fifteen years;” “until Sarah arrives to fifteen, when,” &c.'are to be taken literally, none of the legacies can ever vest: for Sarah died before she attained the age of fifteen, and of course never arrived at that age. And if a benign interpretation must be resorted to in favor of the defendants, it must also be allowed to others.
    6. In cases of doubt, the courts incline in favour of the vesting of legacies. 1 Roper on Leg. 378.
    ' 7. If the legacies did not vest at the testator’s death in the legatees, they are given to the executors in trust until Sarah would have attained fifteen. But they are charged with the maintenance and education, in the mean time, of all the legatees. This shews, by the common rules of construction, that they are vested. 1 Roper on Leg. 388,390. The cases on the subject are well collected in 1 Roper, from 375 to 400.
    8. The provision that in case of the marriage of any of the children, there should be no further charge in his or her favour until Sarah becomes fifteen, does not conflict with the views before expressed, since a married child is, at that time, to take as if there had been no marriage. It is then submitted, that the legacy to Mary, the deceased wife of the plaintiff, was a vested interest in all the personal property of the testator, and that, upon her death, it was transmitted to the plaintiff as her administrator and husband.
    
      M. Haughton for the defendants.
   Ruffin, Chief Justice.

With every disposition to the contrary, we find ourselves obliged to hold the legacies in this will not to have been vested., There are no words of gift of the personalty, except by inference from the direction to divide. And as to the period of division, and consequently of gift, the will uses terms of strict condition: “ at the time my daughter Sarah arrives to 15; and “ when he or she shall receive, &c.”

To take the case out of the well known general rule, several circumstances were relied on by the plaintiff’s counsel. It was first argued, that as immediate estates in the land- are devised, and as it and the negroes are to be hired out by the executors for the same period, and for the same purposes, the whole ought to be looked on alike, as having been given presently, but to be divided at the future day. But to that, we cannot accede. As to the land, it is given immediately— which shews the testator knew how to make such a gift when so minded; but it is not to be divided when Sarah shall be fifteen; for, the testator himself makes- the division between his daughters and his son; and, as to the tract given to the daughters, there is no period of division between them designated. But there is no gift of the personal estate, distinct from the provision for its division; which is to be made equally between all the children, and for the first time, at the time Sarah should be fifteen. We cannot, therefore, infer a gift before that time. Consequently, the legatees must be living at that time, so as then to answer the description of !£ children,” or they cannot take. Sansbury v. Read, 12 Ves. 75—Ford v. Rawlins, 1 Sim. & Stu. 328.

As the testator died without leaving a wife, and intended his children should share equally, or nearly so, in his personal estate, it is possible that he deemed it unnecessary to make an express bequest, and considered they would, by law, succeed immediately. If this was so, then his directions refer simply tó the enjoyment, and postpone the period for that, from considerations of convenience. But this can be nothing more than conjecture; and' we find no case that warrants a different construction of such expressions as are here used, when applied to legatees, who are or who are not the next of kin oí the testator.

Nor have we any difficulty from the notion that, as to the share of one dying before Sarah’s age of 15, the testator is made to die intestate, though he intended the contrary. He is not intestate in that case. The gift is not to these persons nominatim, if living at Sarah’s arrival at fifteen;.but it is to the testator’s children as a class at that period. The will, then, disposes of the whole personal property, unless all the children should be dead before that period; and'in that event, there would be a total intestacy, or rather, the whole disposition would fail, because the testator did not contemplate that event and provide for it.

nance win legacy vest, sorb the*" irhoie a-profit1 or if it be not re-that as the only fund.

The provision for maintenance will not bring the case exception to thegeneral principle, which isfounded on a gift of the intermediate interest or profit to the same legatee, to whom the future legacy of the capital is given. That does not apply, if the maintenance is not to absorb the whole amount of profit; or if it be not restricted to that as only fund. Pulsford v. Hunter, 3 Bro. C. C. 416—Hanson v. Graham, 6 Ves. 249, 1 Rop. Leg. 497. Here the intermediate profits are not given to the children as dis^rom capital, nor for the purpose of maintenance, maintenance is merely a charge, which may not consume the profits; or, it may greatly exceed it; and, in that case, the capital must supply the deficiency. Besides, the maintenance itself was to cease upon, the marriage of a child before the division.

Upon the whole, we can lay hold of nothing in the will to control the words of condition. The circumstance that the testator contemplated the marriage of one or more of his children, before Sarah’s age of fifteen; and that, notwithstanding such children would take nothing, in the event of their deaths before that period, although they might leave a child, had its weight, and induced us to pause in adopting the construction. But it is not sufficient of itself. It shews, either that the testator had an unnatural intention, or that he did not think of the death of a child leaving a child, before the day for division. The latter is the more probable; but in neither case would the Court be justified in rejecting his words, or refusing to cany into effect his intention, as collected from the established interpretation of his language. The opinion of the Court is, that only those children take who were living when Sarah would have been fifteen.

Per Curíam Decree accordingly.  