
    Sarah M. De Treville v. Richard and Edmond Ellis.
    
      Devise of real and personal estate to the children of testator, but “ should any of them die without lawful heirs of their own body, their part or division of the estate to be equally divided between the surviving children, share and share alike." Held, that the indefinite failure of heirs of the body, was controlled by the limitation to the survivors : and that the devise over was good, both as to the real, and the personal estate. Vide Stevens v. Patterson, post, next case.
    
    Richard Ellis by his last will devised his real and personal estate to his widow and children in different portions, and by one of the clauses thereof provided as follows : “ It is my will and desire that should any of my children die without lawful heirs of their body, their part or division of my estate shall be equally divided between the surviving children, share and share alike.” William Ellis, one of the devisees, died in May, 1825, a lunatic, unmarried, and without issue, leaving the complainant, who was his sister of the half blood, and the defendants, who were his brothers of the whole blood, the sole survivors of the testator’s children. The defendants were intitled to his estate, under the act of 1791, in exclusion of the complainant; but the latter claimed a distributive share of the estate derived from the father, both real and personal, by virtue of the limitation over contained in the above cited clause of his will.
    The cause was heard at Coosawhatchie, in January, 1827, before De Saussure, Chancellor, who decreed for complainant. The defendants appealed, and the appeal was argued at Charleston, in March, 1827.
   At the sittings in Charleston in December, 1827,

Nott, J.

delivered the opinion of the Court.

The will in this case embraces both real and personal estate; but in the decree of the Chancellor no distinction is made between them; and perhaps from the words of this will it was not necessary that any distinction should havebeen made. But as the same words when used with reference to lands, and personal property, sometimes admit of a different construction, it may not be improper in this case to consider them in relation to each respectively as used in the will.

We have not been fur nished with a copy of the will, but from the decree it does not appear that the first devising clause in question contains any words of perpetuity. The effect therefore would be to give only a life estate in the lands, and an absolute estate in the personal property. The limitation over of the land, after the termination of' the life estate, would in that case be good. If a fee simple has been given in the first instance, then the result will depend upon the construction to be given to the words, “ if any of my children shall die without lawful issue of their own bodies &c.” If those words are considered as having the effect of converting it into a fee tail, or conditional fee, then the devisee having died without issue, the land descended to the heirs general of the testator, of whom the complainant is one, and is therefore entitled to take by descent. Chadock v. Cowley, Cro. Jac. 695. If the words “surviving children” are to be considered as limiting it to the dying without issue, living at the death of the first taker, then the limitation over is good, by way of executory devise, and the effect will be the same both as it regards the real and personal'estate. Barnfield v. Wetton, 2 Bos. & Pul. 324.

With regard to the personal property, a bequest to one and the heirs- of his body, without any qualification and restriction, has always been held to vest an absolute interest.. These words are always construed to mean an indefinite failure of issue, and a limitation depending upon such a contingency is too remote, and therefore void. But where any words are used, which can be construed into an intention to limit the failure of issue to the time of the death of the first taker, the limitation will be supported. And the Court will take advantage of any words, that will bear such construction, in order to carry the intention into effect. The word survivor has in many instances been held sufficient for that purpose. Roe v. Scott and Smart, Butler’s Fearne, 474, note (b), Wilkes v. Lion, 2 Cowen, 333, Keating and Wife v. Reynolds, 1 Bay 80, Hughes v. Sayer, 1 P. Wms. 534, Massey v. Hudson, 2 Merivale, 130.

In-this latter case Sir William Grant points out, the distinction between a limitation to a survivor, which is intended as a personal benefit, and one which is intended to vest such an interest, as to render it transmissible. “ If,” says that learned judge, “ A, (the legatee) is personally to take the legacy, then the presumption is strong that an indefinite failure of issue could not be in the testator’s contemplation. Prina facie a bequest over to the survivor of two persons, after the death of one without, issue, furnishes this presumption ; for it will be intended that the survivor was meant individually, and personally, to enjoy the legacy, and not merely to take- a vested interest, which might, or might not be accompanied by actual possession.” But when it is-given over to a survivor, his “ executors, administrators, and assigns,” he was of opinion, that it must be considered as vesting a transmissible interest, and therefore too remote and void. If that distinction is to be regarded, and I do not know that it has ever been controverted, the limitation in this case is within the rule, and must be supported. I am of opinion therefore that the decree ought to be affirmed, and the motion dismissed.

Decree affirmed.  