
    Henry Haynsworth vs. John F. Haynsworth.
    
      Limitation of Estates— Vested Interest— Construction of Deed.
    
    The donor conveyed by deed real and personal property to a trustee for the sole and separate use of his, the donor’s, granddaughter M., wife of H., for life, and after her death to the use of H. for life, and after his death to the use of the children horn and hereafter to he bom of the said M. and their heirs; hut should the said M. and the said H. both die without leaving children living at the time of their decease, born of the said M., then over to two other grandchildren of the donor. M. afterwards died, leaving H. and one child surviving her, and the child then died, leaving H. surviving him : — Held, that the child took a vested and transmissible interest which became indefeasible on the death of M. leaving him surviving her; and consequently that the ulterior and secondary limitation over to the two other grandchildren had not and never could take effect. 
    
    Prior vested and therefore more favored interests will not he defeated in favor of ulterior and secondary interests upon a doubtful construction of the instrument creating them. It must clearly appear that the event has happened upon which such prior vested interests were intended to he defeated, or they will continue to exist.
    BEFORE CARROLL, OH., AT SUMTER, JUNE, 1860.
    The decree of his Honor, the Circuit Chancellor, is as follows:
    Carroll, Ch. By deed dated May 25, 1844, Charles Spann, Sen., transferred and conveyed to John E. Haynsworth, as trustee, seventeen negro slaves, and one undivided third part of certain lands therein described. The deed provides, that the property comprised in it shall be had and held in trust “ to and for the sole use of the grantor’s granddaughter, Mary Elizabeth, wife of Henry Haynsworth, during her natural life, and after her death to and for the use of the said Henry Haynsworth, during his natural life, and after his death to and for the use of the children born or thereafter to be born of the said Mary Elizabeth and their heirs, share and share alikebut should she and the said Henry Haynsworth both die without “ leaving children living at the time of their decease born of the said Mary Elizabeth, then that the said John F. Haynsworth, or his representatives, shall convey the said premises to the grantor’s grandchildren, Francis Greo. Spann and McConico Grulielma Spann, and their heirs, share and share alike, or, in case of the death of either or both, to their childrenand it is further provided that the trustee shall hold the property thereby conveyed, “for the uses above mentioned, so that the same shall not be subject in any manner to the present or future debts of the said Henry Haynsworth or any future husband of the said Mary Elizabeth.”
    By permission of this Court, the portion of lands included in the deed was sold, and the proceeds have been lent to Henry Haynsworth, whose obligation for repayment of the same is in the hands of the trustee. After the execution of' the deed referred to, the grantor’s granddaughter, McConico Grulielma, intermarried with James L. Haynsworth; Mary Elizabeth, wife of Henry Haynsworth, departed this life June 1, 1846, having given birth to three children, two of whom, born respectively in the years 1844 and 1846, died in her lifetime. Her other child, a son — William Henry — born in 1841, survived her, but died in May, 1858 ; and the administration of his estate has been committed to his father, Henry Haynsworth.
    The bill is exhibited by Henry Haynsworth against John F. Haynsworth, Francis Gr. Spann, James L. Haynsworth, and his wife, McConico Grulielma. On behalf of the plaintiff, it is claimed that his son William Henry’s interest under the deed was a vested remainder, defeasible only in the event of his dying in the lifetime of both his parents, and, as he survived his mother, that such defeasance can now never take effect; that the plaintiff being life-tenant under the deed, and entitled by legal succession to the estate of his deceased son, thus unites in himself all the interests, present and expectant, which compose the right of absolute property; that the trusts created by the deed should, be regarded as executed, and that the plaintiff’s obligation in the hands of the trustee, with the original trust deed, should be ordered to be surrendered to him.
    That the children of Mrs. Mary Elizabeth Haynsworth took vested interests in the property comprised in the deed scarcely admits of doubt. In the limitation to them words of contingency are not found, and do not appear until introduced into the succeeding and ulterior limitation. The law, it is said, favors the vesting of estates, and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested; 4 Kent, 203. In Rutledge vs. Rutledge, Dud. Eq. 201, the trusts of the marriage-settlement were for the use of the husband and wife, during their joint lives, with the remainder to the survivor for life, and “ after the decease of both ” to the issue of the marriage as tenants in common ; but in the event of there being no issue of the marriage, or of such issue dying during the lives of the husband and wife, or the life of the survivor, then to the use of such survivor.
    There was issue of the marriage surviving both parents, and it was held that'the issue, as successively born, took vested interests, as well those who did not survive their parents as those who did. An instance of similar construction is exhibited in Smither vs. Willoch, 9 Yes. 234. In that case there was a bequest to testator’s wife for life, and after her death the capital to be divided among his brothers and sisters in equal share; but should any of them die in the life of the wife, the share of him or her so dying to go to his or her children. One of the brothers died in the. life of testator’s widow without having ever had a child, and the Master of the Polls adjudged the share of the deceased brother to be vested in interest, and subject to be divested only in the event of his dying in her lifetime and leaving children. The cases referred to are regarded as differing from the present case in unessential particulars only, and as decisive of the question under consideration. If the words employed be in other respects sufficient to pass a present interest, the mere circumstance of its being limited over on a-contingency does not, in itself, prevent the interest from vesting. Rutledge vs. Rutledge, Dud. Eq. 205; Skey vs. Barnes,. 3 Meriv. 340. On the contrary there is high authority for the proposition that it has precisely the opposite effect; 2 Jarm. (note u) 738. It is held that the children of Mrs. Mary Elizabeth Haynsworth took vested estates under the deed.
    The case, however, is not determined by the decision of that question. It remains to be considered whether, in the events that have occurred, the limitation over to Erancis Gr. Spann and his sister McOonico can take effect. The deed manifests that the grantor’s chief purpose in framing its provisions was to secure the property comprised in it to his grandchildren, the grantees, and their issue. The whole is given to them successively, except an estate for life, contingent in enjoyment, which is carved out for the plaintiff in the event of his surviving his wife; and even that interest is apparently sought to be restricted by the provision that it should not be liable for his debts. The estate, given to the children of Mrs. Mary Elizabeth Haynsworth, is limited in terms which literally import an origin coeval only with the date of its coming into possession. Such form of description cannot postpone the period for its vesting in interest, but it is not without significance in giving construction to the limitation over. If there should be no children of Mrs. Mary Elizabeth Haynsworth to take the estate given them at the date assigned for its beneficial enjoyment, then Erancis G. Spann and his sister are appointed to take that estate and at that time. The limitation to the children of Mrs. Mary Elizabeth Haynsworth is to take effect at the date of their father’s death; undoubtedly not in derogation of her life-estate, however, but at his decease, assuming that he survives her. If there be no children of hers to take at that time, then the grantor’s other grandchildren named in the deed become entitled. The date at which the former were to take in enjoyment, and that at which the latter were to take in default of the former objects, are identical. The point of time which marks the decease of the survivor of two persons is one and the same with that which marks the decease of both. Two points of time were assuredly not within the contemplation of the grantor when he fixed the date expressed by the words, “ at the time of their decease.” Had it been so intended, and the same form of expression been employed, he would have said, “at the times of their decease.” It would be absurd to suppose that the grantor anticipated that both would die at the same instant. The phrase in question may be considered as equivalent to what would be expressed by the words, “ at the time of the decease of both.” The construction contended for by the plaintiff would interpret them as signifying “ at the time of the decease of either,” a conclusion which cannot be admitted until “ two ” 'can be shown to be synonymous with “one.” If the deed had ended with the limitation in favor of the children of Mrs. Mary Elizabeth Haynsworth, and if Henry Haynsworth had survived both her and them, the whole estate would have vested absolutely in one no longer connected by ties of blood or affinity with the family of the grantor. It was to prevent this very result that the limitation over was incorporated into the deed. If so, it is not perceived how the purpose of the grantor could have been changed or modified by the circumstance (had he foreseen it) of his granddaughter, Mary Elizabeth, leaving issue surviving her, if such issue died afterwards in the life of the father. The death of the mother and the death of the children in the lifetime of the father, and not the order in which these events might occur, constituted the contingency provided for in the limitation over. In the judgment of the Court, the construction suggested by the plaintiff finds no warrant in the words descriptive of the event upon which the ultimate limitation is to take effect, nor in the context of the deed, nor in any rational motive that can be ascribed to the grantor. It is ordered and decreed that the bill be dismissed.
    COPT DEED.
    “State op South Carolina, Sumter District:
    “Know all men by these presents, that I, Charles Spann, of Sumter District, in the State aforesaid, in consideration of the love and affection which I have and bear towards my granddaughter, Mary Elizabeth Britton Haynsworth, wife of Henry Haynsworth, of Sumterville, in said district and State, and in consideration of the sum of one dollar to me in hand paid by John E. Haynsworth, have given, granted, and delivered, and by these- presents do give, grant, and deliver, unto the said John E. Haynsworth, his heirs and assigns, forever, in trust, as hereinafter mentioned, the following negro slaves, namely, Gilbert, Caleb, Mack, Ephraim, Hagar, Mima, Penny, Caty, Molly, Will, Hager, (the younger,) Nelly, Caty, (the younger,) Dorcus, Sam, Jupiter, and Jane; and also, one-third undivided of one thousand acres of land, embracing the settlement and houses in which my late deceased son, William Spann, resided, as tenant in common; and also, one-third undivided of the land laid off eastwardly from my other land by a line running sixty-five west, suryeyed by Mr. Hasting Jennings, the fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty-seven ; together with all and singular the said slaves and their increase, and all and singular the oné-third of the said land as above described, with the appurténances unto the same belonging or in any wise incident or appertaining: to have and to hold the said premises unto the said John E. Haynsworth, his heirs and assigns, in trust, to and for the sole use of my said granddaughter, wife of the said Henry Haynsworth, during her natural life, and after her death to and for the use of the said Henry Haynsworth for and during his natural life, and after his death to and for the use of the children born or hereafter to be born of my said granddaughter, and their heirs, share and share alike; but should my said granddaughter and the said Henry Haynsworth both die without leaving children living at the time of their decease, born of the said Mary Elizabeth Britton Haynsworth, my granddaughter, then the said John E. Haynsworth, or his representatives, shall convey the said premises to my other grandchildren, namely, the children of my deceased son, William Spann: — that is to say, to Erancis George Spann and McConico Gulielma Spann — and their heirs, share and share alike equally between them; and in case of the death of either or both, to their children — the children of a deceased parent taking the part to which their parent would have been entitled if living; and the said John E. Haynsworth shall hold the said property herein conveyed for the uses above mentioned, so that the same shall not be subjected in any'manner to the present or future debts of the said Henry Haynsworth or any future husband of my said granddaughter, Mary Elizabeth Britton Haynsworth. ' In witness whereof, I have hereunto set my hand and seal, this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and forty-four. Signed, sealed and delivered in presence of (‘ and their heirs, share and share alike,’ in one place, and the words, 'and their heirs,’ in another place, being first interlined.)
    "CHS. SPANN, Sene. [l. s.]
    “O. W. Miller,
    “Saeah S. Spann.”
    The plaintiff appealed, and now moved this Court to reverse the decree of his Honor, the presiding Chancellor, on the ground:
    Because, by a proper construction of the deed, the plaintiff’s intestate, William Henry Haynsworth, took a vested interest under it, defeasible only in the event of his dying in the lifetime of both of his parents; and as that contingency did not arise, he took an absolute estate, subject to the life-interest of the plaintiff in the property conveyed.
    
      F. J. Moses, Haynsworth, for appellant.
    
      J. S. Q-. Richardson, Fraser, contra.
    
      
       Devise to W. and M., his wife, “and the survivor of them, during their natural lives, and then ” “ to M., their daughter, or if more children by M., the said wife, equal between them, and, in case they leave no children, to their heirs and assigns forever.” M., the wife, died, leaving W., her husband, and M., their only child, surviving her. M., the daughter, married and then died, leaving her father and four children surviving her. W. then died, leaving the four children of M., his daughter, surviving him. Tlie question in the case turned upon the proper construction of the words, “in case they leave no children.” If the meaning was, if either should die leaving no children, then the enlarging limitation to the heirs and assigns of W. and M. had not taken effect, and consequently the plaintiff, who was the heir at law of the testator, was entitled to recover; hut if, on the other hand, the meaning was, if the survivor of W. and M. should die leaving no children, then the limitation had taken effect, and the defendant, who claimed under 'W., was entitled to judgment. The Court without hesitation decided that the proper construction of the words was, if the survivor should die leaving no children, and gave judgment for the defendant. Doe vs. Knowls, 1 B. & Ad. 324. — R.
    
   The opinion of the Court was delivered by

Johnstone, J.

We agree with the Chancellor, that Wm. Henry Haynsworth took a vested interest in the property conveyed in the deed. But we do not concur in his conclusion that that interest has been defeated by his failure to survive both his parents.

A vested interest has the quality of transmissibility, and is not defeated by the death of the tenant. It is not to be taken away, except upon the occurrence of some event, which, by the terms of the grant, or a just construction of the instrument, was intended to terminate that interest. This principle is very just and reasonable, and has the merit of effectuating the intention of the grantor more completely than any other that has been suggested. Where the grant vests an interest generally and indefinitely in one person or class of persons, and this is followed by ulterior limitations to other persons, it is a plain case of preference of the former in the affections of the grantor. If the ulterior limitations are suspended upon conditions or contingencies, these must occur before the secondary grant can take effect. A contrary judgment would have the effect of supplanting the primary intention by the secondary, while yet the primary intention might be carried out.

In Kersh vs. Yongue, 7 Rich. Eq. 100, it was held that, the condition of an ulterior disposition not having occurred, prior dispositions creating vested and transmissible interests remained in full force. I might mention other cases of our own, and cases decided abroad, but this may suffice, I think fully sustaining the principles'I have announced. These principles show that, in the present case, the real question is, whether these ulterior limitations are entitled to be enforced. Have the conditions upon which they are suspended been fulfilled ? Have the contingencies attached to them, by the deed, occurred?

It is true that the construction must be upon the whole instrument; and if, by a fair construction, the contingencies annexed to the limitations over can be carried back, and applied also to the preceding interests, it should be so held. But the preceding interests here are given generally, and by words implying no restriction. After all that has been said in the decree, and in the argument here, or that, as I conceive, can be said, the matter, to say the most, is left doubtful whether the grantor intended the words of contingencies to apply to the interests he had given before he made use of those words. Where doubts exist, they should not be allowed to disparage prior interests in favor of secondary. The more favored objects of bounty should prevail over the less favored. The effect of these observations is, that the ulterior limitations must be tried by their own strength, and upon the terms annexed to them.

And what are they? “Should my said granddaughter” (Mrs. Haynsworth) “and the said Henry Haynsworth” (her husband) “both die without leaving children living at the time of their decease, born of the said Mary E. Haynsworth, my said granddaughter,” then over to the ulterior.grantees. Should they both die without children at their death: what can this mean but that the limitation is made to depend upon a double contingency ? And is not fulfilled by the death of one of them without surviving children of the marriage. It is true Mr. Haynsworth (let his death occur when it may) must die without such children, the possibility of such issue being now extinct. But Mrs. Haynsworth left one living child of the marriage surviving her. Both haye not died, and cannot die, (as things have occurred,) without such issue. The result is, that the limitations over have not taken and cannot now take effect.

We are therefore of the opinion that the decree dismissing the bill should be reversed and set aside, and it is so ordered.

But we have not the record before us, and cannot proceed for want of it to make the decree for the plaintiff to which he is entitled. It is therefore further ordered that the case be remanded to the Circuit Court, which will proceed to decree according to the record.

O’Neall, C. J.pand Wardlaw, J., concurred.

Decree reversed.  