
    *Catlett and Wife v. Marshall and Others.
    February, 1839,
    Richmond.
    (Absent Tucker, P.)
    Wills — Annuities Given in Remainder — When They Vest. — A testator, having' bequeathed annuities for life to Ms three nieces, Prances, Sybella and Ann, and charged them upon his real estate, devises, that upon the death of Prances, her annuity he given and continued to the second child of B. P. during his or her natural life ; thatupon the death of Sybella, her annuity be given and continued to the third child of B. P. during his or her natural life ; and that upon the death of Ann, her annuity be given and continued to the fourth child of B. P. during his or her natural life. At the date of the will, B. P. is a widower, with five children, of whom the four eldest are known to the testator, the second and third being sons, and the fourth a daughter ; and all of these five children survive the testator. By a second marriage, contracted in the testator’s lifetime, B. P. has another child; who, being the fourth child at the decease of the annuitant Ann, claims the annuity. Held, the annuities in expectancy vested at the death of testator, in those children of B. P. who were then the second, third and fourth, and were not contingent until the deaths of the prior annuitants. ■
    Thomas lord Fairfax, proprietor of the northern neck of Virginia, by his last will and testament, dated the 8th of November 1777, and duly executed and proved to pass and charge real estate, bequeathed to his nieces Frances Martin, Sybella Martin and Ann Susanna Martin, annuities of ^100. sterling each, for and during their natural lives; the payment of which he charged upon the real estate devised by the will .to his nephew Denny Martin. To his three nephews, the said Denny Martin, Thomas Bryan Martin and Philip Martin, he bequeathed all the negro slaves that he should die possessed of, to be equally divided among them, share and share alike.
    *By a codicil dated the 27th of November 1779, also duly executed and proved to pass and charge real estate, the testator made the following new provisions : “The negro slaves left in my will to be equally divided between my nephews Denny Martin, Thomas Bryan Martin and Philip Martin esqs. shall be divided into four equal pai'ts, instead of three. One fourth part thereof X give and devise to Bryan Fairfax esq. — my intent and meaning being that he shall have an equal share or part of my said negroes with my aforesaid three nephews. And whereas in my aforesaid will I have bequeathed an .annuity of ^100. sterling to each of my three nieces Frances Martin, Sybella Martin and Ann Susanna Martin during their several lives; I do hereby devise and bequeath, that upon the death of Frances Martin, her annuity of .¿TOO. be given and continued to the second child of the aforesaid Bryan Fairfax, during his or her natural life; and that, upon the death of Sybella .Martin, the annuity of ^100. sterling bequeathed to her be given and continued to the third child of the aforesaid Bryan Fairfax, during his or her natural life ; and further, that upon the death of my other niece Ann Susanna Martin, the annuity of ^100. sterling bequeathed to her be given and continued to the fourth child of the said Bryan Fairfax, during his or her natural life.”
    The will and codicil were proved and recorded in the county court of Frederick, in August 1782.
    At the date of the codicil, and at the time of the testator’s death, Bryan Fairfax had five children living; namely, Thomas his eldest son and heir, William, Ferdinando, Elizabeth and Robert. His first child, a daughter, had died before the date of the codicil : at that date, therefore, and at the ■ death of the testator, Thomas was the second child in the order of birth, and the first in the order of seniority ; and in the same order of seniority, William, Ferdinando and Elizabeth were the second, third and fourth, respectively. Bryan Fairfax *lost his first wife in 1778, and married again at some period before October 1780. By his second wife he had two children, Hannah .and Ann ; the first of whom died in infancy.
    After the death of lord Fairfax and of Denny Martin, the manor of Deeds, a part of the real estate devised to the latter, was sold and conveyed by Philip Martin his heir at law, to James M. Marshall, John Marshall and Rawleigh Colston, jointly; the purchasers covenanting to pay or secure to the second, third and fourth children of Bryan Fairfax, from and after the deaths of Frances, Sybella and Ann Susanna Martin, respectively, the annuities given to the said children by the codicil to lord Fairfax’s will.
    Ann Susanna Martin died in 1817. At that time there were living only four children of Bryan Fairfax; namely, Thomas, Ferdi-nando, Elizabeth, and Ann the surviving child of the second marriage.
    In 1826, Charles J. Catlett and Ann his wife, who before her marriage was Ann Fairfax (surviving- daughter of Bryan Fairfax by his second wife) exhibited their bill in the superior court of chancery holden at Winchester, against James M. Marshall, John Marshall, and the heirs at law and devisees of Rawleigh Colston, who was then dead, setting forth the provisions aforesaid of the will and codicil of lord Fairfax, the conveyance of the manor of Feeds to James M. Marshall, John Marshall and Rawleigh Colston, and the covenant on the part of the purchasers ; insisting, that upon the true construction of the codicil, the female plaintiff became entitled, on the death of Ann Susanna Martin, to her annuity of ^100. sterling, she being at that time the fourth child of Bryan Fairfax ; and praying that the arrears of the annuity accrued since the death of the said Ann Susanna, with interest thereon, might be decreed to the plaintiffs, and provision made for securing to them the payments ^'thereafter to become due annually during the life of the female plaintiff.
    The defendants, by their answers, insisted that according to the just construction of the codicil, the reversionary interests in the annuities, thereby bequeathed to the second, third and fourth children of Bryan Fairfax, vested, on the death of the testator, in the persons who at that time answered the description in the codicil, and did not pass to those who might answer that description at the death of the first annuitants.
    By the evidence filed in the cause it appeared, that lord Fairfax and Bryan Fairfax were second cousins : that in 176S, lord Fair-fax granted a tract of land of 12S88 acres to Bryan Fairfax for life, with remainders to' his sons Thomas and William, successively, in tail male ; Thomas being described in the grant as “ the eldest son,” and William as “ the second son,” of Bryan Fairfax : that about the year 1772, Bryan Fairfax and his wife, with several of their children (probably all that were born up to that time, of whom Elizabeth was the youngest) were at Bath in Berkeley county, where, during several weeks, they lodged in the same house with lord Fairfax : and that some four or five visits were interchanged between lord Fairfax, who resided in Frederick county, and Bryan Fairfax, who resided in Fairfax county, in the boyhood and within the recollection of Thomas Fairfax, who was born about the year 1761 ; so that some of these visits probably took place after the birth of Elizabeth, which occurred about 1770.
    The cause was heard ,in December 1827; when the chancellor, being of opinion that the person entitled to the annuity in question after the death of Ann Susanna Martin, was Elizabeth, the fourth child of Bryan Fairfax at the date of the codicil and at the death of the testator, and not the female plaintiff, who answered the description of the fourth child at the death of Ann Susanna Martin, — dismissed the bill with costs. From which decree the plaintiffs appealed to this court.
    *Taylor and Robertson, for appellants.
    Three questions arise upon the second clause of the codicil : 1. Are the annuities of the nieces to be continued to the second, third and fourth children of Bryan Fairfax according to the numerical order of their births ?, 2. Are they to be continued to the second, third and fourth children living at the death of the testator in 1782 ? 3. Or was it intended by the testator that any children of Bryan _ Fairfax, who might be the second, third and fourth children of him, living at the death of the prior annuitants, Should take ? We contend that the last-mentioned disposition was the one intended by the testator.
    The following propositions of law are premised:
    1. In the construction of wills, the intention of the testator is the rule and guide; and that is to be collected from the whole will. Frogmorton e. d. Bramstone v. JHoly-day et al., 3 Burr. 1622 ; Oates e. d. Markham v. Cooke, Id. 1686 ; Butler v. Duncomb, 1 P. Wms. 4S7.
    2. A general intent, if manifest and clear from the whole will taken together, will control a particular intent, however expressly declared. Robinson v. Robinson, 1 Burr. 38 ; 2 Fonbl. Eq. ch. 3, § 2, p. SS, note (h) ; Roe e. d. Dodson v. Grew et al., 2 Wils. 322; Doe v. Applin, 4 T. R. 82; Doe v. Smith, 7 T. R. 531 ; Doe v. Cooper, 1 East 229 ; Pierson v. Vickers, 6 East 548; Jesson v. Wright, 2 Bligh’s P. C. 49; Doe v. Harvey, 4 Barn. & Cres. 620.
    3. The construction of a will may be made from, circumstances as they were at the time of making the will. All Souls College v. Codrington, 1 P. Wms. 597; Godfrey v. Davis, 6 Ves. 44; Cartwright v. Vawdry, 5 Ves. 532, 3, 4; Shelton’s ex’ors v. Shelton, 1 Wash 56, 7.
    4. Where the testator’s language is equivocal, the circumstances of his family, or of the family to be benefited, are admissible in evidence, to put a construction on it.
    Randolph’s Peake 125 ; Powell on *Devises 518 ; Kerman v. Johnson, Sty. 281, 293 ; Moore v. Price, 3 Keb. 49 ; Cooper v. Williams, Prec. in Ch. 71.
    The first clause of the codicil was intended to benefit Bryan Fairfax personally: and that the second was meant to benefit the family of Bryan Fairfax generally, without regard to any particular child, is manifest upon the following considerations. The testator has used no, words -so unequivocally designating particular children, as to amount to what the law calls a descriptio personae : and the language which he has used is inconsistent with the idea of any such particular designation ;, for it appears by the grant made to Bryan Fairfax in 1765, and by the testimony in the cause, that he knew, at the date of the codicil, that the second and third children of Bryan Fairfax were sons, and the fourth a daughter; yet to each of the objects of his bounty he continues the annuity during,his or her natural life; and this, not by an independent clause, but by one connected with and immediately following that in which he has provided for the father— which is always considered a strong circumstance, to shew a general intent. It is unquestionable, that the testator did not mean to restrict his bounty to the particular individuals who were the second, third and fourth children of Bryan Fairfax at the date of the codicil: his acquaintance with those individuals, viewed in connexion with the fact of his using’ language which imports that each object of his bounty might be either a male or a female, renders such a restrictive construction impossible. He designed to leave indeterminate and unascertained, at that time, the persons who were to take upon the death of the annuitants. Nor is there anything in the language of the testator, in the circumstances of his own family, or in those of the family of Bryan Fairfax, which indicates, or renders probable, an intention that the persons who were to take annuities of the nieces should become determinate at his own death. His language is ^opposed to that construction ; for he devises, that “ upon the death ” of each annuitant, her annuity shall be continued to “ the second ” &c. child of Bryan Fairfax ; and even if this be somewhat equivocal, and do not necessarily import that the annuity is to be taken by such child as, upon the death of the annuitant, may be the second, &c. still, that meaning occurs more obviously and naturally than any other; while the extraneous circumstances, which must necessarily be looked to in every case like this, combine to strengthen the probability that such, and no other, was the real intent of the testator. He undoubtedly intended a benefit to some three of Bryan Fairfax’s children; but he knew that if he designated, by the terms of his will, the particular child who was to succeed to each particular annuity, so that, before the death of the prior annuitant, the successor might be individually known and named, his or her death in the lifetime of the prior annuitant would cause the lapse of the annuity, although other children of Bryan Fairfax, equally dear to him, might be living; and it is therefore unlikely that he designed to ascertain, previous to the death of the annuitant, the person who was to be the successor. Supposing this to be the proper construction of the clause, and that the testator intended to leave the objects of his bounty thus indeterminate until the period when that bounty was to be enjoyed, such an intention contravenes no rule of law. The authorities establish, beyond all doubt, that where property is given to a class of persons, as children, grandchildren, brothers &c. all persons that answer the description at the time for distributing the fund, no matter whether they were in being at the date of the will, or were born after the testator’s death, nor whether they be the offspring of a marriage contracted before the testator’s death, or afterwards, are entitled to share in the distribution. Gilmore v. Severn, 1 Bro. C. C. 581; Hoste v. Pratt, 3 Ves. 730; Hughes v. Hughes, 3'♦Bro. C. C. 434; S. C. 14 Ves. 256 ; Curtis v. Curtis, 6 Madd. 17 ; Ellison v. Airey, 1 Ves. sen. Ill; Belt’s Suppl. 73; Baldwin v. Carver et al., Cowp. 309; Attorney General v. Crispin, 1 Bro. C. C. 386; Congreve v. Congreve, Id. 530; Devisme v. Mills, Id. 537; Crone v. Odell, 1 Ball & Beatt. 459, 483; Morse v. Morse, 2 Cond. Eng. Ch. Rep. 511; Eeake v. Robinson, 2 Meriv. 381, 2 ; Barrington v. Tristram, 6 Ves. 345. If Ann Catlett, then, at the death of Ann Susanna Martin the third annuitant, was the fourth child of Bryan Fairfax, she fell within the exact description of the testator, at the first moment that the annuity could vest in or be taken by any person under the will; and by the strongest and clearest analogy, she was entitled to take it. To the construction which we contend for, it may perhaps be objected that the children of Bryan Fairfax and the three nieces of the testator might so have died, as to render the execution of the will difficult or impracticable. But with such considerations the court has nothing to do, in any case where the intention of the testator is ascertained. Difflis v. Goldschmidt, 1 Meriv. 417 ; S. C. 19 Ves. 566 ; Hutcheson v. Jones, 2 Madd. 124. In the language of lord Ellenborough in Driver v. Frank, 3 Maulé & Selw. 55, 6, the court, is not warranted in making another will for the testator than that which he has actually made for himself, because inconveniences which he did not foresee or provide against might, in another state of events, have resulted from the will which he has made.
    Johnson and Eeigh, for the appellees,
    contended that those of Bryan Fairfax’s children who were the second, third and fourth in the order of seniority at the death of the testator, became entitled to the annuities in succession to the nieces respectively. In maintaining this construction of the codicil, they said, they had not to encounter any one of the propositions of law stated by the counsel for the appellants. All of those propositions *might be admitted, without affecting the case in the slightest degree. Supposing the testator’s general intent to have been, as assumed on .the other side, to make a provision for Bryan Fairfax and his family, that intent was perfectly consistent with the construction for which they contended : while that construction would at the same time explain the use of the alternative words “his or her,” applied to each of the children designated : since, even admitting that the testator knew, at the date of the codicil, all the children of Bryan Fairfax then living, he could not know whether, at the period of his own death, the second, third and fourth children would be the same individuals who then answered that description, or not. On the other hand, the construction insisted on by the appellants involved consequences which it was impossible to regard as having been within the contemplation and intent of the testator. It might be presumed that he did not intend any one child to have more than one annuity : yet, according to the construction of the appellants, all the annuities might have gone to the same child ; for possibly, of the three annuitants, Ann Susanna might have died first, Sybella next, and Frances last, and the same individual might have been the fourth child of Bryan Fairfax at the death of Ann Susanna, the third at the death of Sybella, and the second at the death of Frances. Again, one and the same individual might possibly have been the fourth child of Bryan Fairfax at the death of Sybella, the third at the death of Frances, and the second at the death of Ann Susanna; in which case, upon the same construction, he would have taken no one of the annuities, though he survived all the annuitants. And the person taking all three of the annuities, in the case first supposed, might be a child of Bryan Fairfax born after the testator’s death : while the person losing all of them, in the other case, might be one of the very children with whom the testator was acquainted in his *lif e-time. The general rule is, that wherever the legatee is not named, but designated by description, you ascertain at the death of the testator who answers that description. There are doubtless exceptions ; but whoever relies upon an exception must take the onus of shewing that his case falls within it. In this case, no ground of exception has been suggested. The cases of Hansford & ux. v. Elliott et al., 9 Eeigh 79; Doe d. Eong v. Prigg, 8 Barn. & Cres. 231; 15 Eng. C. E. Rep. 206; Driver v. Frank, 6 Price 75 ; 2 Eng. Exch. Rep. 370; S. C. 3 Maulé & Selw. 24 ; Eady Eincoln v. Pelham, 10 Ves. 166 ; Bowles v. Bowles, Id. 177 ; and Danvers v. Earl of Clarendon, 1 Vern. 35, are strong authorities in support of that construction for which the appellees here contend. All of them proceed on the principle, that the law favours such a construction as will leave bequests contingent as short a time as possible : and this is more especially the case where legacies are charged upon land, since then the ascertainment of the persons entitled is important as well to the heir or devisee whose land is charged, as to the legatees themselves, whose interests, when vested, become a marketable property, though the vesting in actual possession may be still uncertain and contingent. The cases cited on the other side, in which a fund was bequeathed to be distributed among a designated class of persons, are not adverse. The result of them all is simply this : All persons answering the 'description, who are in esse at the testator’s death, take vested interests (unless some other provision necessarily keeps them contingent) and those not then in esse take vested interests as they successively come into being : the shares vest in possession immediately, if there is no particular estate, or if there is one, then as soon as it is determined : and even if some peculiar provision keep the shares of the legatees contingent till the happening of a particular event, still these contingent interests are ^transmissible to their representatives, if the persons to whom they are contingently given be certain and determinate.
    
      
       He decided the cause in the court of chancery,
    
    
      
       Wills — Vesting of Estates. —The law favors the vesting of estates, as soon as the words of the instrument will admit of it. See foot-note to Brent v. Washington, 18 Gratt. 526; Corbin v. Mills, 19 Gratt. 440. The principal case is cited, in support of this rule, in Cheatham v. Gower, 94 Va. 386, 26 S. E. Rep. 853; Corbin v. Mills, 19 Gratt. 472; Stokes v. Van Wyck, 83 Va. 733, 3 S. E. Rep. 387. See Sellers v. Reed, 88 Va. 379, 13 S. E. Rep. 754, opinion of Lewis, P., and Cooper v. Hepburn, 15 Gratt. 558. But see Hinton v. Milburn, 23 W. Va. 171.
      Same — Same-Testator’s Death. — It is well settled that all devises and bequests are to be construed as vesting at the testator’s death, unless the intention to postpone the vesting is clearly indicated in the will. Chapman v. Chapman, 90 Va. 409, 18 S. E. Rep. 913 ; Sellers v. Reed, 88 Va. 377, 13 S. E. Rep. 764; Jameson v. Jameson, 86 Va. 51, 9 S. E. Rep. 480; Raney v. Heath, 2 Pat. & H. 206 ; Hinton v. Milburn, 23 W. Va. 171.
      Same — Legacies—When Vested — When Contingent.— where a future time for payment of a legacy Is defined by the will, the legacy will be construed as vested, when the time is meant to be annexed to the payment or possession only, but as contingent, when annexed to the gift itself. Thus, a legacy payable to the legatee at twenty-one, or any other age, is vested ; but a legacy payable to a legatee at twenty-one, or when he attains twenty-one is contingent unless the intermediate interest is given to him, in which case the legacy is vested. Sellers v. Reed, 88 Va. 377, 13 S. E. Rep. 754 ; Major v. Major, 32 Gratt. 819.
      Same — Vesting of Mixed Funds. — The vesting of a mixed gift of realty and personalty, is controlled by the rules relating to devises of real estate. Raney v. Heath, 2 Pat. & H. 207 ; Sellers v. Reed, 88 Va. 377, 13 S. E. Rep. 754.
    
   PARKER, J.

In expressing the opinion which I have formed in this case after long consideration, I do not mean to enter at large upon the various topics discussed with so much ability by the counsel who argued it, but merely to state the grounds of my judgment, that the decree ought to be affirmed.

Eord Fairfax, by his will, bequeathed to his nieces Frances Martin, Sybella Martin and Susanna Martin, and to each and every of them living at his death, an annuity of /100. sterling during their and each of their natural lives, and charged his land devised to his nephew Denny Martin with the payment. This will is dated in 1777. By a codicil thereto, dated the 27th of November 1779, he made some provision for Bryan Fairfax, and after reciting the bequest of the annuities aforesaid, he adds, “ I do hereby devise and bequeath that upon the death of Frances Martin, her annuity of /100. be given and continued to the second child of the aforesaid Bryan Fairfax, during his or her natural life: and that upon the death of Sybella Martin, the annuity of /100. sterling bequeathed to her be given and continued to the third child of the aforesaid Bryan Fairfax, during his or her natural life : and further, that upon the death of my other niece Ann Susanna Martin, the annuity of /100. sterling bequeathed to her be given and continued to the fourth child of the said Bryan Fairfax, during his or her natural life.”

At the date of the will and codicil and at the death of the testator, Bryan Fairfax had five children living; and at those periods, William, Ferdinando and Elizabeth answered the description of his second, third and fourth children. But at the death of Ann Susanna Martin in 1817, the wife of thecomplain-ant answered the description *of Bryan Fairfax’s fourth child, in consequence of the death of some of his other children ; and in this character she claims the annuity of /100. sterling bequeathed to the said Ann Susanna. The question therefore is between a child of Bryan Fairfax answering the description at the date of the codicil and at the death of the testator, and another child answering the description at the death of the annuitant; and it is a question purely of intention. The only rule of law which seems, to be applicable to the subject is this ; that in general the courts are inclined to favour the vesting of legacies or other gifts, as soon as the words of the instrument will admit of it: and where lands are charged, there is good reason for this rule, in order that the precise nature of the charge may be understood, and the rights of property ascertained. If the intent, however, be apparent on the face of the will, neither the technical rule respecting the early vesting of an estate, nor possible inconveniences arising from a literal adherence to such intention, are to be regarded. We are not warranted (as lord Ellenborough expressed himself in Driver v. Frank, 3 Mau. & Selw. 25,) in making another will for the testator than that which he has actually made for himself, because inconveniences not foreseen or provided against might, in a certain state of events, result from the will which has been made : although (in the language of another eminent judge on the same occasion) the case is very different where the intention is not fully expressed, but is to be collected and inferred as only probable. In that case the probability, from which the intention is to be inferred, maybe outweighed by the improbability that the testator could intend to make a distribution of his property, attended with such inconveniences as would follow from carrying' into effect his supposed intention. And to this extent only can we give weight to the argument founded, in this case, on the difficulty, confusion and injustice which might result, if it should *be considered that the persons who were to take these several annuities were not determinate until the deaths of the first annuitants.

In ascertaining the intention of lord Fair-fax, we must remember that he was not standing in loco parentis to the children of Bryan Fairfax; that Bryan Fairfax was but distantly related to- him ; that the testator was probably'acquainted with the four eldest children of Bryan Fairfax some time before the date of his will and- codicil, and with no other child, Robert the youngest being then an infant of tender years ; that Bryan Fair-fax was, at the date of the codicil, almost certainly a widower; and that no general intent appears, to provide for all the children of Bryan Fairfax, but only for his second, third and fourth. If we ascertain what children were in the contemplation of the testator, as sustaining the character of' second, third and fourth child, no difficulty can arise about the time at which the gift vested ;• for it cannot admit of a doubt, that where a legacy is given to one for life, and after his decease to a determinate child of another, or to younger children generally, it vests at the death of the testator, and is not postponed till the death of the tenant for life, when the estate is to come into possession. Lady Lincoln v. Pelham, 10 Ves. 166.

In the case before the oourt, the testator has not clearly indicated the period when the right to the annuities should .vest in interest,' in the second, third and fourth child of Bryan Fairfax. But the circumstances under which he made-his will, and the state of Bryan Fairfax arid his family at the time, render it- highly -probable that he look only to the second, third and fourth child at the date of the bequest, or at the time of his own death. The expressions his or her certainly, prove that, lie contemplated the possibility of the' second, third or fourth child being male or female, at the time of enjoying the annuity but the chancellor has properly‘remarked that the neces--sity for the Use of-these terms ^equally-existed,-whatever time he looked to as ascertaining the persons to take. If that time was to be the period of his own death, Elizabeth the fourth child might, by the death of her brothers, become-the secbnd or third, and Robert be substituted in her place. There being then no clear intent manifested on the face'of the will, and the circumstances shewing that lord Fairfax more probably designed" to benefit the children known to him and then in esse, answering the description, than children to be born at a future period; and this construction coinciding with the principle established by this court in the case of Hansford & ux. v. Elliott et al. on the authority of Doe d. Long v. Prigg, 8 Barn. & Cres. 231, that where no special intent to the contrary is manifested, the vesting of legacies shall be referred to the death of the'testator, and not to the time of distribution and payment; and being, as I think, 'further supported by 'the case of Driver v. Frank, 3 Mau. & Selw. 25 ; S. C. 6 Price 41, — I am of opinion that the second, third and fourth child of Bryan Fairfax at the death of the testator, were entitled in interest to the annuities ; an interest which, though contingent, and not transmissible to representatives, was valuable and saleable, and therefore to be noticed and protected by this court.

The decree'is to be affirmed.

The other judges concurred. Decree affirmed.  