
    Elizabeth Shaffer and others, vs. A. C. McDuffie and others.
    
      Limitation of Estates — “ Right Heirs at Law ” — Husband.
    Tlie trusts of a marriage settlement were to the joint use of husband and wife during their joint lives; remainder to survivor for life ; remainder to issue of wife ; and in default of such issue to her “right ■ heirs at law.” — Wife died without issue, husband surviving. Held, that husband was entitled asa “ right heir at law ” of wife.
    BEFORE CARROLL, OH., AT MARION, FEBRUARY, 1867.
    On the intermarriage of George M. Eairlee with Margaret G. Shaffer,'the parties executed a settlement of the intended wife’s estate — she being the party of the first part, and he the party of the second part. The trusts of the settlement were as follows : “ in trust for the joint use and benefit of the said parties of the first and second part, during their joint lives, and in case of the death of either of them, then to the survivor during his or her natural life; and after the death of both the parties, of the first and second part, then to the issue of the said party of the first part, his, her or their heirs and assigns forever; and in default of such issue, then unto the right heirs at law of the said party of of the first part, his, her or their heirs and assigns forever.” The wife died leaving no issue — the husband being the survivor — and this bill was filed for settlement of the trust estate. The only question at the hearing was whether the husband took as a right heir of the wife.
    The decree of his Honor, the Chancellor, is as follows:
    Carroll, Ch. In all essential particulars, the present case is identical with the case of Glover vs. Adams, (11 Eich. Eq. 264.) ' There, as here, the limitation to be construed is found in a deed of marriage settlement. In that case the trusts declared were for the joint use and benefit of the husband and wife during the coverture — if he survived her, then for his use and benefit during his natural life, after his death for such persons as she should appoint by will, and, on failure of such appointment, then in trust for her legal heirs and representatives. It was held that the persons entitled to take were the heirs and distributees of the wife at her death, including the husband, who survived her.
    The case reported was more favorable to the claim on behalf of the husband, than the present case. The limitation there, to the legal heirs and representatives “ of the wife, was to take effect only in the contingency of the husband surviving her.” If she survived him, the whole estate was “ to remain in her, free and unencumbered of all trusts.” In the deed of settlement, in this case, no special provision is made for the contingency of the husband’s being the survivor. The provision is, in general terms, in case of the death of either of them then to the survivor during his or her natural life, “ with remainder to the issue of the wife,” &c., “ in default of such, then to her right heirs at law.” The heirs of a person, in the primary sense of that term, means the individuals fulfilling that description at the time of his death. The burden of showing that the term was not used in that sense, rests here upon the plaintiffs. When the marriage settlement in this case was executed, it could not, of course, be foreseen that the husband would survive the wife. It was quite as likely that she would be the survivor. Had she, in fact, survived him, there could have been no contest as to the meaning of the words, “her right heirs at law.” The persons standing in that relation to her at her death would have taken, and no others. In that event, the words in question would have retained their primary sense. It cannot be varied because the husband happened to be the survivor. Surely the construction cannot depend upon the accident of her surviving him or - his surviving her. If the interpretation proposed by the plaintiff be adopted, then the remainder to the right heirs of the wife, was manifestly contingent. But the law favors vested estates, and no remainder will be construed to be contingent which may consistently with the intention, be deemed vested, (4 Kent’s Com. 208.)
    It is adjudged and decreed, that the persons entitled to take under the limitation to the “ right heirs at law ” of Margaret G. Shaffer, afterwards Margaret G. Eairlee, in the deed of marriage settlement referred to in the pleadings, are the persons, including her husband, who were her statutory heirs at the time of her death. It is further ordered, that the Commissioner inquire and report to what estate, of every description, real or personal, the said Margaret G. was entitled at the date of the said marriage settlement between her and George M. Eairlee; and, also, to what estate, real or personal, she became entitled after-wards, during her marriage with the said Eairlee. It is further ordered, that the defendant, A. C. McDuffie, executor of the said George M. Eairlee, do account, before the Commissioner, for all moneys, effects and estates of every kind, received by his testator, in his lifetime, as trustee, under the deed of marriage settlement referred to. And it is also ordered, that upon the coming in of the Commissioner’s report, the parties have leave to move for such further orders as may be necessary or proper.
    The plaintiffs appealed, and -now moved this Court to reverse the deoree, on the grounds:
    1. That it is respectfully' submitted that his Honor, the presiding Chancellor, erred in holding that the deed of marriage settlement, under the term of right heirs of Margaret Eairlee, included the husband ; whereas, the plain intention of the deed is to exclude him, except as to a life-estate.
    2. That the gift of the life estate, as survivor of his wife, under the deed, is inconsistent with a vested interest of the husband.
    Evans, for appellants,
    cited Seabrooh vs. Seabrooh, M’M. Eq. 204; Evans vs. Goclbolcl, 6 Rich. Eq. 26; Vauoa'vs. Henderson, 1 Jac. & W. 288 ; 2 ¥m’s. Exors. 997, 1009 ; 4 Kent Com. 537, note; Oholmonclely vs. Glinton, 2 Jac. & W. 65, 189 ; Holloway vs. Holloway, 5 Ves. 399; Long vs. Blachall, 3 Ves. 486 ; Jones vs. Horlbut, 8 Ves. 38.
    
      Mclver, contra.
   The opinion of the Court was delivered by

Wardlaw, A. J.

The Chancellor’s decree is fully sustained by Glover vs. Adams, 11 Rich. Eq. 267, and other cases therein cited. The marriage settlement must be construed now as it would have been immediately after its execution. The inconsistency does not exist which the appellant has attributed to the result of the husband’s taking both the enjoyment for his life, and a vested transmissible interest. Those who urge a departure from the natural meaning of “ heirs,” must show sufficient reason to authorize the Court in making the departure, and the intention inferred from the supposed inconsistency cannot avail to give to the same words a meaning in the case, which has happened, of the husband’s survivorship, different from what they would have had if the wife had survived.

The decree is affirmed.

Dunkin, G. J., and Inglis, A. J., concurred.

Motion dismissed.  