
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Lewis and Wife v. Executors of Vereen.
    The testator bequeathed certain slaves, and other personalty, to his tw# youngest daughters, to be equally divided between them, share and share alike ; and in case his executors should not think it best to dispose of his real estate, then the whole of his real estate to be equally divided between his said two daughters: also, and in case either of them should die minors, then the deceased child’s part to be divided among the testator’s surviving children, and the lawful issues of their bodies forever. Hold, that the limitation in the last clause applied as well to the bequest of the personalty, as to the devise of the real estate; and that upon the death of one of the youngest daughters, her share was distributable among all the children ot the testator, without discrimination, although some of them were only of the half-blood to the deceased daughter.
    Special verdict in partition in these word«: “ We find that Ebeneezei Vereen, by his lust will and testament, bearing date, &c., among other things, gave to his twoyouugost daughters, Elizabeth, and June, five negroes, named. &o. with their increase, bis stock of cittle, &.C. to be equally divided between them, share and share alike; and in case his executors should not think it best to dispose of his real estate, then the whole of his real estate to be equally divided ^between Ms said two daughters, Elizabeth, and Jane: also, and in case either of them should die minors, then the deceased child’s part should be divided among his, (testator’s) surviving children, and the lawful issues oí their bodies for ever. Also, and in case liis executors should thii k it more advantageous to his two youngest daughters, Elizabeth, and Jane, to sell the whole, or any part of his land, then he gave power to his executors to sell and to apply the proceeds most advantageously for their benefit. That the said Jane hath since departed this life, a minor, leaving her mother, and a sister of the whole blood, and the wife of Lewis, the plaintiff, and another sister, of the half blood. Therefore if the court should be of opinion, that the clause aforesaid, providing, that in case either of his children, Elizabeth, and Jane, should die minors, or under age, then the deceased child’s part to be divided among oís surviving children, and the lawful heirs of their bodies, for ever, relates not only to the lands devised, but also to the personal estate devised to the said Elizabeth, and Jane, we then find the plaintiffs entitled to a third part of the said personal estate, and the surviving sisters of the said Jane, entitled each to a third part: but if the court should be of opinion that the said clause relates, arid is restricted, to the real estate devised, then we find that the said surviving sister of the said Jane of the whole blood, and her mother, are entitled to a moiety each ofthc said personal estate, and the plaintiffs not entitled t.o any part thereof.” This special ver. diet was argued by Pringle, tor defendants, and by Simons, for tho plaintiffs.
    For the defendants, it was contended, that such a construction ought to be made, as would bo most favorable to the whole, blood of the intestate ; as, before the passing of the act for the abolition of primogeniture right, was always 'done in regard to the heir at law. And therefore it woul 1 bo proper to consider tho devise of the land, as distinct and separate from tho devise of the person, al estate ; and the limitation over in the clause in question, in case either the d> visees should die under age, to the testator’s surviving children, and the lawful issues of their bodies, as properly referable to the real estate only : tor the next preceding devise is of the real estate, which is an independent devise, not necessarily connected with the devise of the personal estate. And the limitation immediately folio vviug the devise of the land, ought to be confined to the land; more especially as oy extending these words of limitation to the personal estate, they could have-no legal effect or operation in relation to it, since the words of limitation being words of entailment, and creating a perpetuity, are void, and vest the Whole in the first, takers. 1 T. R. 596.
    Simons, contra.
    
    Mr. Pringle’s argument would be good, if not bottomed on a false principle. The common law principle which preferred the right of the heir at law, is abolished, and no strained construction ought to he made, to save or advance such a right; neither should it be made to give any preference of the whole to the half blood, except where the Act of Assembly clearly warrants it, or rather, requires it. The intention of the testa, tor, where it can be known, ought to prevail, if consistent with the rules of law. It seems to have been his intention, in the event of one of his daughters, Elizabeth, and Jane, dying under age, that her part should be divided equally among his surviving children. The clause making this provision is substantive and independent, and must relate to all the estate previously devised to his said daughters, without any distinction or discrimination between the real and personal estate. But the rales of law will control his intention, so far as it extends to entail in perpetuity the personal estate, and therefore the whole of the personal estate devised tó Jane, vest-' <?d absolutely in her ; and at her death, vested by virtue of the act of distributions in her other surviving sisteré of the whole and half blood, without distinction.
   The court

(Bay, Jojosoti, Tresevant, and Brevard, Justices/ absentibus Grit,ike,’ J. and Waties, J.)

were of opinion, that no other intention,- than that which was insisted' on for the plaintiffs, could be collected from the words of the will ¡ and that the most obvious sense of the Words “ in case cither of them should did minors, &c.” was,- that ail the estate before devised to’ the said daughters’,which should belong- to the one that should die in minority, should pass over to all the other children of the testator surviving at hef death, without any discrimination.’

The judgment wa3 ordered to be entered for the plaintifis.-

Note. — The Act of 1797, provides that where the intestate shall leave no lineat descendant, nor widow, or husband, but shall leave a father, or motlter, and brother, or sister, the estate shall be divided equally between them,. No difference is declared between the whole and half blood ; and it is to be presumed tha’ the children -of brothers and sisters in such case would be entitled trf take by right of representation. The act of 1791 makes a distinction between the wholo and half blood, and prefers the former, .one degree to the latter in collateral successions; as where’ there are biothers and sisters ot the whole blood, or brother of sister, and no-father or mother, or lineal descendant, .but a widow, o'r husband, the whole blood excludes the half blood in such case, where they stand iii equal degree,’ from the succession:’ so shall the children of the whole blood, while any brother or sister of the whole blood remains alive : so also' if there be no widow or husband, because the act declares th'at the estate shall undergo a like distribution, in such case as where the widow is provided for. But if all the brothers and sisters of the .whole blood are dead, leaving a child, or children, each brother’s of sister’s child of the whole blood, shall divide’ equally with each' brother’ or sister” of the half blood. Qucere ?

The word “ issue” includes descendants m the mosl remote degrees. 3 T. R .373. 
      
      (Whether this construction of the Act of 1797, be the correct one, is oertainly questionable; but it could not have been the ground of the judgment of the court ill the foregoing case, which excludes the mother from the distribution. This could not have.been, if the pevsonaltv was distributable under' the Act Of 1797, as the property of the de .eased daughter. The judgment’ seems to recognize the validity of the limitation over ; and so does the opinion oí'the court, as far as it is stated The argument of , imohs, is most probably mis-reported, so far as it admits the limitation overt» have been void. It was unquestionably good ; for it was to take ’effect only in the event of the daughters dying under age, and was far within the limit allowed by the policy of the ’ Jaw as to perpetuities. Even a general failure of issue would probably have been controlled by the limitation to the “surviving children ” Hughes v. Say- or, 1 P. Wms. 534; the principle of which case is now very fully séltled and recognized. It is to be regretted, that we have not a more full report of the case -in the text)
     