
    
      Videau M. DeVeaux et al. v. S. G. DeVeaux et al.
    
    Slaves, left by testatrix to her son, ‘'until her grand children, the heirs of his body, arrive at age or marry, they then to have their portions given them,” were held to have been properly distributed under the will, among all the grandchildren, (including those after-born of a second marriage) who were in esse at the time the eldest grandchild of the first marriage attained the age of twenty-one years, but not among those born after that time.
    Where there are conflicting claims under a will, the first duty of the court, in giving it construction, is to ascertain how many of the claimants come within the description given by the will; and the second is to discover whether all who do come within the description, can be allowed, by the rules of law, to partake of the bounty intended.
    It is a familiar rule in the construction of legal instruments, alike dictated by authority and common sense, that common words in the instrument are to be extended to all the objects which, in -their usual acceptation, they describe ordenote, and that technical terms are to be allowed their technical meaning and efiect; unless, in either case, the context indicates that such a construction would-frustrate the real intention of the draughtsman.
    With various fluctuations in the progress of adjudication, the authorities have settled down in the result, that where the bounty is given to classes by description, and not by designation, all the beneficiaries described in the instrument, in esse at the time fixed tor distribution, shall be entitled to distribution then, in exclusion of those who come into being afterwards, though,answering to the description as well as themselves.
    Where a son, upon his marriage, had been put in possession of a plantation by his father, without any written title, and had died before he had held the possession for a sufficient length of time to give him a statutory title — the parol evidence of the nature of the possession being quite obscure and somewhat contradictory, the court refused to decree a gift to the son.
    Where a son had been placed in possession of slaves, by his father, although that possession was of such a nature as to have entitled a creditor to subject them as the property of the son, the court were of opinion that, as between tire parties to it, the question whether a gift was made or not, was one of fact and not of law, and that the facts, from which the gift was to be inferred, were only evidence— the weight of that evidence being against the gift, they decreed accordingly.
    
      Before Johnston, Ch. at Charleston, June, 1846.
    The Chancellor states the facts neeessary to the understanding of the points made in this case, in the following circuit decree.
    Johnston, Ch. Leaving the pleadings in this case to speak for themselves, I shall proceed immediately to the questions presented for decision, making such a statement of facts as is neeessary to the understanding of each.
    
      The first question, arises under the will of Mrs. Esther Marion, the widow of the Hon. Robert Marion.
    It appears that this testatrix had no issue by Mr. Marion, but that, by a prior marriage, she had issue, one son, Stephen G. DeYeaux, one of the defendants in this cause.
    tier’will was executed the 2d February, 1821, at which time her said son had three children, to wit: — Robert Marion DeVeaux, Esther Gabriella DeVeaux, and Francis Peyre DeVeaux, of whom Robert was bom in November, 1812, and Francis, in October, 1820; Robert was, consequently, between eight and nine years, and Francis about four months old, at the date of their grandmother’s will. Esther’s birth was between those of her two brothers.
    Under these circumstances the testatrix executed her will, containing, among others, the following provisions: — “ I give and bequeath to my beloved son, Stephen Gabriel DeYeaux, the use and produce of the labor of all my negroes, until my grand-children, the heirs of his body, arrive at age or marry; then they are to have their portions given them. Should any of my grand-children die, before they arrive of age, or marry, then their part is to be divided between the survivors.
    “ My stock, of every kind, and bonds, I leave my beloved son, S. G. DeYeaux, forever. Also, all my furniture. Also, my lot and house in Pineville, during his life, and after his death, to my grandson, Robert Marion DeYeaux.
    “ I also give to Robert Marion DeYeaux my pair of silver pitchers.
    “ Also to my dear grand-daughter, Esther Gabriella De-Yeaux, my silver sugar dish, silver bowl and silver milk pot.
    “And to my beloved grand-son, Francis Peyre DeYeaux, I leave my pair of large silver tea pots.
    “ And the rest of my silver and glass-ware, and china, I desire to be divided, equally, between all my dear grandchildren. Also, all my bed quilts and counterpanes to be divided between them.
    “My Bible I leave to my grand-daughter, E. G. DeYeaux.”
    “I give to my grand-son, Robert Marion Deveaux, my carpenter, John, when he arrives of age.”
    Francis, the youngest of the three grand-children in esse at the execution of the will, died in the August ensuing its date, at the age of about ten months, of course intestate and without issue.
    The testatrix died in November of the same year.
    Stephen G. DeYeaux, the son of the testatrix, lost his wife, the mother of the three grand-children above named, about two years after testatrix’s death ; and married a second wife, who is now alive, and by whom he has eight children, viz : — Elizabeth, Salina, Stephen, Ann, Georgianna, Isabel, Kate and Amarintha.
    Robert Marion Deveaux, the eldest of the first set of grandchildren, came of .age in November, 1833, and married the plaintiff, Yideau M. DeYeaux.
    At the time of his marriage and majority, the five first named of the second set of grand-children were born and in esse ; the remaining three have been born since.
    In the January following Robert’s majority and marriage, his father, who was the executor of his grandmother, in pursuance of legal advice, allotted and delivered to him one-seventh of the slaves generally bequeathed, retaining the other six-sevenths for his sister, Esther, and for the five grand-children of the second marriage then born.
    Subsequently, Esther intermarried with John Huger, who, with her, was made a defendant in this cause, but has since deceased.
    Also, subsequently, to wit: — in May, 1843, Robert died intestate, leaving his wife and four infant children, who are the plaintiffs in the cause.
    The bill is against Stephen G. DeYeaux, who is the administrator of the son, Robert, as well as executor of his mother, Mrs. Marion — his eight children by the second marriage, and his daughter, Esther, and her husband, being made co-defendants with him — and one of the objects of- the suit is to obtain a partition of the slaves, based on a construction of the will, that the grand-children in esse at the execution of the will, were exclusively intended by the testatrix, as the objects of her testamentary bounty.
    In the argument of the cause, three several constructions have been contended for, suited to the respective interests of the litigating parties.
    The first is that on behalf of the plaintiffs, which I have just noticed. The interests of Mrs. Huger, one of the defendants, demand the same construction; but she does not insist on it; being willing to submit to any construction of which the will is fairly susceptible, and to abide by the one-seventh of the slaves which were allotted and delivered to her husband after her marriage.
    The second construction contended for is, that all the grand-children in esse at the majority of the eldest grandchild, or at the marriage of any of the grand-children, are entitled to the distribution, in exclusion of subsequently born grand-children. This is the ground taken by the five oldest of the second set of grand-children.
    
      The third construction insisted on is, that the benefits of the will were intended for, and should be extended to, all the grand-children; and this is the ground for which the three youngest of the grand-children contend.
    A great many cases . have been quoted in the argument of these points; but though I have consulted many of them, I do not deem it necessary to refer to them specially in my judgment, because the general principles which must govern the construction are well settled, and free from obscurity.
    The first duty is to ascertain how many of the claimants before the court come within the description given in the will ; and the second is, to discover whether all who do come within the description can be allowed, by the rules of law, to partake of the bounty intended. These are very distinct enquiries, though often confounded. The persons described in the clause of the will from which this suit arises, are “ my grand-children, the heirs of his (my son’s) body.”
    It is a familiar rule in the construction of legal instruments, alike dictated by authority and common sense, that common words in the instrument are to be extended to all the objects which, in their usual acceptation, they describe or denote, and that the technical terms are to be allowed their technical meaning and effect: unless in either case the context indicates that such a construction would frustrate the real intention of the draughtsman.
    The word “grand-children,” employed in this will, is descriptive of a definite relation between an ancestor and a certain class of his descendants, and is equally applicable to all the descendants who bear that relation. The first set of grand-children in this case, would not, therefore, be exclusively intended by it, unless, from other parts of the will, it appears that the testatrix designed to apply it to them alone.— But I do not find, in any part of this will, sufficient evidences of such intention. In those clauses where the testatrix gives specific property to them, individually, she must necessarily name them, individually, as existing persons : but this does not infer that where the bequests are general, and where she omits a personal application of her bounty, a personal application was nevertheless intended — but rather the contrary. If the testatrix had intended to limit the property now in question to those three grandchildren, it would have been natural for her to have named them; instead of which she adopts another method, and employs a general term, applicable to others as well as to them. The epithet “ dear grandchild or grandchildren,” elsewhere applied to these three, collectively or individually, has been relied on as evidence of a state of affection, growing out of an actually existing relation: from which it has been argued that then existing grandchildren were intended, not only in those clauses, but in the clause now under consideration, and throughout the whole will.— This foundation seems to me too slight for so sweeping an inference. The source of our affection ■ to grandchildren is our affection to our children, their parents; we love them, and wé love their children for their sakes. It may be that this secondary affection is stronger when the objects of it are actually present — that it thrills more for those whom we have seen, than for those whom we have not seen — but it would be unwarrantable to conclude, from this, that unborn progeny take no hold whatever upon the heart of the ancestor, as to presume, m this case, that the testatrix intended to disinherit them, in the face of terms employed by her, amply sufficient to include and provide for them. .Upon the epithets of endearment applied by the testatrix to the three children in existence, it may not be too minute to remark, that when speaking of them individually, she does not apply these epithets to Robert in any instance, while in almost every instance she does apply them to the other two; a difference which may possibly have proceeded from the very tender age of the two latter as compared with his ; the helplessness of mere infancy calling forth those expressions of fondness, in their case, which every body must have remarked as the workings of nature, and especially woman’s nature. But these by no means infer a difference of real affection in reference to the three.
    It may safely be put to the common sense and common feelings of mankind, whether if, by another turn of events, the mother of these three children had brought other children into existence, after the date of the will, and before the death of the testatrix — whether, in that case, a claim by the three, in exclusion of those after born, would not have been repelled by the testatrix herself, as utterly repugnant to her intentions.
    The terms (I say nothing of the technical terms, for the present,) of the will are sufficient to take.in all grandchildren; and we are to presume that the testatrix, in employing them, intended that they should operate according to then meaning.
    But how many of the grandchildren are allowed, by the rules of distribution, to avail themselves of the bountry ?
    The direction of the testatrix is, that the usufruct of her son should expire when her grandchildren should come of age or marry: “ then,” says she, “ they are to have their portions given them.” With various fluctuations in the progress of adjudication, not necessary to be noticed here, the authorities have settled down in-the result, that where the bounty is given to classes by description, and not by designation, all the beneficiaries described in the instrument, in esse at the time fixed for distribution, shall be entitled to distribution then, in exclusion of those who come into being afterwards, though answering to the description as well as themselves.
    According to this rule, the five grandchildren of the second marriage, together with the two surviving children of the first, (Francis’s share having lapsed, and being, by the terms of the will, distributable among the others, if it had not lapsed,) were exclusively entitled to distribution at the majority or marriage of Robert. The three younger children of the second set, not being then in esse, could not be taken.
    This rule of distribution is one of convenience, and not of convenience merely, but necessity. The reasons of it, in some respects, are stated by Sir Samuel Romilly, in the argument of Godfrey vs. Davis, (6 Yes. 45,) when he says “if the distribution is not confined to some particular period, it cannot be ascertained who are to take, until after the death of the parents of all the persons to take, which leads to this inconvenience, that none of the persons for 'whom the fund is intended may receive any benefit from it.”
    . In the same case, (Id. 49,) the Master of the Rolls sustains the rule by further reasons. “ It is clearly established,” says he, “by DeBisme vs. Mello, (1 Bro. C. C. 537,) and many other cases, that where the testator gives any legacy or benefit to any person, not as persona designata, but under a qualification and description at any particular time, the person answering the description at that time, is the person to claim; and if there are any persons-then answering the description, they are not to wait to see whether any other persons shall come in esse; but it is to be divided among those capable of taking, when, by the tenor of the will, he intended the property to vest in possession.”
    Where, as in this case, a period is assigned for vesting the property in possession, when that period arrives the persons then in esse and answering the description, are entitled to an execution of the will, and to be put in possession of the property ; and it can be no reason for delaying the execution, that, by possibility, other persons may come into existence of like description. The will ought to be then executed, according to the rights then existing; and if other persons, suiting the description, shall afterwards come in esse and claim participation, their claim cannot be allowed: not because they are not intended by the instrument, but because, by the provisions of the instrument there is no property left for them.
    The general intention of the will, in this case, is that the three youngest grandchildren shall receive the bounty given, as well as any other of the grandchildren; and it is not the intention of any part of the instrument to exclude them, except so far as such an intention arises from the provision fixing the time for distribution. But that must, from the necessity of the case, and according to well established authority, deprive them of the actual enjoyment.
    The youngest grandchildren, however, insist upon the technical words in the will, to shew that the rights of the legatees are not to be determined during the life of Stephen G. DeVeaux, their father; and, of course, that not only they, but all other children who may yet proceed from his loins and survive him, are entitled. The persons described are not only “ grandchildren,” but heirs of his (Stephen’s) body.”— Nemo hceres est viventis, and therefore none of his children can exhibit the character of “heir” until his death.
    The question is whether the words “heirs of his body” were used by the testatrix in a technical sense. And they are so to be construed unless the context of this will shews a different intention. I think the context does shew a different intention. The preceding usufruct of Stephen is not given for life, but until his children marry or come of age. They are then to be put in possession, whether he be dead or alive. In the construction of the will, either this express designation of a time for distribution must be set aside, or the words “heirs of the body” must be supposed to have been used in an intechnical sense. I cannot doubt that they were so used; and it is reasonable to conclude, from the context to which I have referred, that they were employed in their popular sense of “issue of his body,” and used in that sense. By the way, they serve to confirm the interpretation put on this will, in a former part of this judgment, that the testatrix had not exclusive reference to the three grandchildren in esse at the execution of the will. My meaning will be better understood if we suppose the testatrix to have paused at the word “ grandchildren,” as if fearful that she might be apprehended to mean the three then in existence, and by way of removing that doubt, that she thereupon added “the heirs” — that is the issue “of his body;” as if she had said, “I do not mean the three only — I mean all ■ my grandchildren who shall issue from his body.”
    My decree upon this part of the case is, that so far as the executor allotted to Robert Marion DeVeaux and Mrs. Huger each one-seventh part of the slaves, the partition conformed to the Avill, and should not be disturbed. The five first born of the second’family of grandchildren are entitled to a similar1'allotment to each of them.
    The plaintiffs had, however, good ground for coming into court upon this part of the case, to relieve themselves of the claim that might at some .future time have been made upon them, by the three youngest of the second family; and, therefore, the Court will, at a future term, entertain an application as to the costs, with a disposition to throw them upon any common fund, or the like.
    Only two other points in this case were presented for adjudication.
    One of them relates to the plantation, Belle Isle, which I believe was the seat of General Marion, and came, by his gift, to the possession of Mr. Robert Marion.
    Mr. Marion, by his will, dated in 1810, divided this plantation into two parts, one of which he devised to his wife for life, with remainder to her son, Stephen G. DeYeaux, the other he devised directly to Stephen.
    From shortly after the death of Mrs. Marion, in 1821, Stephen resided on and planted the Belle Isle plantation ; but upon the marriage of his son, Robert, he gave up his residence to him, and removed to another plantation at a considerable distance. Robert was allowed to cultivate the whole plantation, and did cultivate it, with hands in his possession; but- whether for his own exclusive benefit, or on the joint accqunt of himself and his father, depends on the testimony in thff case, which is somewhet obscure and a little contradictory. He also máde some alterations in the premises, but these were of such a character as to leave it doubtful whether they wefe made with a view to the convenience of a temporary occupation, or in contemplation of permanent ownership. My own inference, from the circumstances given in evidenck is that the possession was only permissive, and that the culture was, for a part of the time, for the joint benefit of the father and the son, and, for another portion, for the benefit of tlie-son only.
    At the death of Robert he had not held the possession for a sufficient length of time to give him a statutory title.
    The question is presented whether there is not sufficient evidence of a gift of this land to entitle Robert to it.
    I cannot hesitate about such a case. It is decided, in all its parts, by Caldwell &f Williams, (1 Bailey’s Equity, 175.) There is not sufficient possession to confer title without writing. There is no deed; and, if we could proceed upon parol, the evidence is too doubtful, to say the least of it, to warrant a decree.
    The other point relates to a stock of slaves, alleged to have been given by Stephen to his son Robert, and employed by him in planting Belle Isle, but omitted in the inventory which the former made of the estate of the latter as his administrator.
    There is much testimony on this point, which, as in the case of the land, I do not deem it necessary to detail, because it is all in writing, and may be considered in case of an appeal.
    The amount of it is, that the stock of negroes was employed on Belle Isle during the time of Robert’s occupancy, and, with some slight alterations, was in his possession at his death. They were with his own negroes while the planting was on the joint account of his father and himself. To •strangers they appeared to be used as his own. One or two of them were employed about his house and about his person. From these evidences, Mr. Singleton, his father-in-law, judged them to be his property; and Mr. Singleton, his brother-in-law, details many circumstances from which he drew the same conclusion. On the other hand, Mr. BuBose, a neighbor, and who frequently acted as agent of the parties in ■the concerns of the plantation, was constantly of the opinion that the possession was permissive. These opinions on the one side or the other, are hardly testimony. We have the possession, which is a fact, but the character of it is equivocal. There is no evidence that at any time Robert claimed the negroes as his own; though he often used them in such a manner that a stranger or a creditor would have considered them his; and undoubtedly a creditor would have had a right to ■subject them as his property. But there is no evidence of a formal gift; and no evidence of a claim set up by Robert in opposition to his father. There is no evidence that in the use of the slaves, Robert at any time pretended to exclude the control of his father; a fact very material where there is evidence that the father interfered with and participated in the management of the plantation.
    Left in perplexity by this evidence, it is very satisfactory that there is other evidence of facts and declarations to turn the scale. Among the slaves was one by the name of Tony; and it is in proof that after the circumstances which I have detailed had produced in the mind of Mr. Singleton the belief that all the negroes had been given, Robert bought this negro from his father, and Tony is accordingly included in the inventory of the administrator, and is not in contest here.
    
      This is not all the evidence on that side. Mr. Peyre, the maternal uncle of Robert, testifies that towards the close of his life, when he was about to purchase some slaves from Palmer, Robert told him he had but 18 negroes to his name ; a fact which, in the state of his property, he could not have admitted if this stock of negroes had been given to him.
    It has been contended that the fact of possession alone must be taken as conclusive, in law, of a gift. But whether a gift was made or not, is, as between the parties to it, a question of fact and not of law ; and all the facts from which a gift is to be inferred are only evidence.
    There is something entirely too high toned in the earlier decisions on this subject. The law undoubtedly is as laid down by Johnson, J. in McKanevs. Bomar, (1 Bail. Rep. 115) where he says that “the question, whether the plaintiff’s testatrix had or had not given the negro in dispute to defendant’s wife, was one purely of fact, of which the jury were the legitimate judges. The comt does, it is true, in extreme cases, exercise the power of setting aside a verdict; but it is only in those cases where the verdict is so palpably against evidence as to leave no doubt that it is erroneous.”
    I think that the weight of the evidence is against a gift in this case; and I do not conceive it to be the duty of the Court to lean against it. It must be remembered that this is not a case of creditors, but one between the donor on the one side and volunteers of the donee, (who stand as the donee himself,) on the other. It is a case in which there is danger of laying a precedent by which the kindness and indulgence of parents may be turned as weapons against them, to divest them of rights which they had no intention to relinquish; than which nothing could be better calculated to deter them from granting their children that assistance and succor which they often so much need, especially in the outset of life.
    It is ordered that so much of the bill as relates to the supposed gift of the land and slaves be dismissed.
    Having disposed of all the points presented for adjudication in this case, all other points are reserved for hearing, if the parties desire it.
    The complainants appealed from the decree of the Chancellor, on the following grounds:
    1. Because the bequest of negroes by Mrs. Esther Marion to her grand-children was intended as a personal benefit to the legatees, and the words used are merely descriptive of the person, and therefore the legacy is divisible among those only who are alive at the time of her decease.
    2. Because the possession of personal property is evidence of title, and therefore all the negroes which were in the possession of Robert Marion DeVeaux are to be presumed to be his, until a better title be proved.
    3. Because the evidence offered to impeach this title is insufficient^and cannot avail to set up a title in the father against that of the son.
    4. Because the possession of the land by the son, and the improvements made upon it at his own expense, while the father stood by and permitted or actually encouraged it, is evidence of an equitable title in the son, which this Court will set up as against the father.
    5. Because the decree is in other respects erroneous.
    Memminger, for the motion.
    We are entitled to all the negroes which were in the possession of Marion DeVeaux at the time of his death. He is not to make out titles in himsel, but it is for the other party to divest him. He married and set out for himself, and his father then put him in possession of the negroes. Vide Degraftenreid vs. Mitchell, 3 Me C. 506 ; Bird vs. Ward, 4 McC. 228: McCluney vs. Lock-hart, 4 McC. 251; McKane vs. Bonner, 1 Bail. 114. The legacies should be limited to the children only who were in esse when the will was made, Ellison vs.-, 1 Vesey. senr. 111. Stephen DeVeaux was not to have a life estate, but only to hold until the time arrived for distribution. Godfrey vs. Davis, 6 Vesey,43 ; Heath vs. Heath, 2 Atkyiis, 121, and 2 Vesey, senr. 84. The son was not a joint tenant ofthe land with the father.
    Hayne, contra.
    
    There is a life estate in Stephen De-Veaux by implication — and positively, if we understand technically the words “heirs of his body;”grand-children cannot be his heirs until after his death. He has not only a life estate, but one to be in his executor until the “heirs of his body” arrive at twenty-one, or marry. All the words in a will shall prevail if possible, and the meaning of words is to prevail. Vide 4 Vesey, 329 ; 4 Vesey, 698, and 6 Vesey, 102, and 7 Bacon’s Abrid. Wills.
    Petigru, for the children of the second marriage, defenddants.
    When property is given nominata, it goes to those named only, but when designated, to those answering the description. Vide Roper’s Digest of the Law of Legacies, vol. 1st, pages 48 and 54. And when to be distributed at a certain time, it is to be distributed at the time the first of the class described comes of age, and those born after are cut off, Myers vs. Myers, 2 McC. Ch. 214. The property, in this case, was given to the father until his son arrived at the age 
      of twenty-one years, (for the gift of the use is the gift of the thing. Yide Pell vs. Ball.) It was not intended to be an estate for life, although it might become so.
    The land and negroes were never given to Marion DeYeaux, and it would be a hardship upon his father to decree a gift— it would interfere with domestic liberty — it would be unreasonable and unjust. The,father exercised concurrent control and possession. It only seems that some thought the father should have given these negroes to the son. If he did intend to give them, and, retaining the power, afterwards changed his mind, it concerns no' one. Surely, Mr. DeYeaux is not to be construed or implied out of his estate.
   Per Curiam.

Harper, Ch.

This Court concurs in the decree, which is affirmed, for the reasons given by the-Chancellor, and the appeal is dismissed.

Decree affirmed.  