
    George J. Priester and others vs. William Priester and others.
    Wills— Construction — “ Property
    
    Testator having two children by his first wife and six by his second, and the children by the second wife being entitled to certain interests in expectancy in lands, slaves, &c., created by the deed and will of M.; he, the testator, referring to said deed and will and the interests created by them, and reciting his “ desire to place his two children by his first wife on precisely the same footing in point of property, with his children by his present wife,” directed his executors to sell, at the expiration of five years from his death, all the residue of his estate, “ and to divide the proceeds of sale among my children in such shares and proportions as they would have taken had I been the owner of the property above referred to, as being embraced in the said deed and will of M., as well as my own property, and had directed the whole to be equally divided among all my children. In other words, supposing the property embraced in said deed and will to be worth §10,000, and the said residue of my own property tobe worth $20,000, my will would be effected by giving to each of my said children by my first wife the sum of $3,750 out of my own property ; and I direct my executors to be governed by this principle of division:” — Held, that, according to the true construction of the will, the land, slaves, &c., embraced in the ' deed and will of M., and not merely the expectant interests of the six children therein, should be valued, in order to ascertain the amount each child was entitled to in the proceeds of the sale of the residue of testator’s estate.
    
      Held, further, that the time at which the land, slaves, <fcc., should be valued, was the time of division, that is, five years from the death of testator.
    BEFORE CARROLL, OH., AT BAMWELL, APRIL, 1863.
    The bill in tbis canse was filed on 17tb February, 1863, by George J. Priester, Jones M. "Williams and Eebecca T. Williams, bis wife, (tbe said George and Eebecca being tbe children of William Priester, by bis first wife,) against William Priester, J. C. Holley and Susannah, his wife, W. M. Hunter and Harriet, his wife, Eudora Priester, Henrietta Priester. and. Nicholas, Franklin Priester, (the said William, Susannah, Harriet, Eudora, Henrietta, and Nicholas, being the children of said William Priester by his second wife, Elizabeth.) It stated that William Priester, on 3d October, 1854, made his last will and testament, whereby, after appointing .his sons, George J. Priester and William Priester, his executors, and providing for the payment of his just debts, he directed that all his estate should be kept together by his executors for five years from the day of his death; that during that time his wife and four younger children should be decently supported, and the said younger children educated out of the income of the estate in the style they had been supported and educated by the testator, and that an investment of two hundred dollars should be made to provide for the purchase of a horse, saddle and bridle, for Nicholas Franklin Priester, when he should attain his majority; and that if any of his children should marry during the five years, the executors should give off to them as much property as the testator had given to his other married children upon their marriage; all said property, as well that given off by the testator as that by the executors during the five years, to be accounted for in the general division of the estate at its value when given off; and that at the expiration of the said five years the; testator gave and devised certain real and personal property to his wife for life or widowhood,' to be sold at her death or marriage, by the executors/and the proceeds appropriated as afterwards directed ,by?tlie said will. The bill further stated that the testator, in the sixth clause of his will, reciting that Matthew Moye, deceased, by a certain deed dated September 10th, 1828, conveyed to George W. Moye and Allen Moye- certain property in trust for Elizabeth Priester (testator’s- second ■ wife) for life, and, at her death, to .and for her children; and reciting also tb'at tbe same Matthew Moye devised and bequeathed to his wife, Harriet Moye, certain negroes therein named, for her life, and directed that said negroes should be sold after her death, and the proceeds of sale equally divided between each and every one of the children which G-atsy McMillan and Elizabeth Priester had or might have, share and share alike; and did also by his said will, direct certain other property-to be sold, and one-fifth of the proceeds divided among all the children which Elizabeth Priester might have, who should live to attain, majority; and reciting also, that it was his (William Priéster’s) “ desire so to dispose of my property as to place George J. Priester and Eebecca Williams (my two children by my first wife) on precisely the same footing in point of property with my children by my present wife, (except in so far as this will shall otherwise direct,)” the said testator proceeded in the words following, to wit: “Now I hereby direct my said executors, or the survivors of them, to sell at the expiration of five years, all the rest and residue of my estate, real, personal and mixed, and to divide the proceeds of sale among my children in such shares and proportions as they would have taken had I been the owner of the property above referred to, as being embraced in the said deed and will of the said Matthew Moye, as well as my own property, and had directed the whole to be equally divided among all my children: in other words, supposing the property'embraced in said deed and will to be worth ten thousand dollars, and the said residue of my own property to be worth.twenty thousand dollars, my will .would be effected by giving to each of my said children, by my first wife, the sum of three thousand seven hundred and fifty dollars, out of my own property,' and I direct my executors to be governed by this principle of division.” The bill further sets forth that the testator, William Priester, as to the property given to his said wife, for life or widowhood, directed, that the proceeds of the sale thereof/ after her death ox marriage, should be equally divided, among all his children upon the principle of division set forth in the sixth clause.
    The bill further stated, that William Priester died in March, 1856, leaving his said will of force, and that his sons, George and William, were duly qualified, and during the continuance of the five years from the day of his death, kept the testator’s estate together, in the mean time applying the income to the support of the widow and her four younger children, and the education of the said four children, and the payment of debts. That on the expiration of said five years, to wit, on the 12th March, 1861, said executors sold the entire residue of testator’s estate, upon a credit of two years. That the gross amount of thp sales was $36,041.88, the net balance of which, after a final accounting, will be subject to distribution among all the children of said William Priester, according to the principle of division set forth in his will. The bill states that the testator left surviving him the following children, viz.: George J. Priester and Rebecca T. Williams, children of his first marriage, and William Priester,. Susannah, wife of John 0. Holly, Harriet, wife of W. M. Hunter, Eudora Priester, Henrietta Priester and Nicholas Erauklin Priester, (children of his second marriage with Elizabeth Priester,) the last three of whom are infants; that the slaves given by Matthew Moye, to his wife Harriet, for life, and at her death to be sold, and the money divided between the children of Gatsy McMillan and Elizabeth Priester, were seven in number originally, and with their increase (at the filing of the bill) amounted to twenty-one in number. That Gatsy McMillan had living one child, and grandchildren representing a deceased child, so that the said slaves on the day of the sale aforesaid would have been divisible into eight parts, (if the life-tenant, Harriet Rice, had then been deceased,) the child and grandchildren of Gatsy McMillan taking two-eighths, and the six children of Elizabeth Priester taking six-eighths. That the one-fifth of the proceeds of the residue of Matthew Moye’s estate bequeathed “ to be divided between all the children that Elizabeth Priester may have to arrive to the age of twenty-one, share and share alike,” was $401.42, as appears by a decree of the Ordinary, dated 5th May, 1837. That the property conveyed by George W. Moye and Allen Moye, trustee for Elizabeth Priester and her children, was a tract of one hundred acres, known as the “ Gill Tract,” and slaves Jane and her children, Andrew and Billy; and that Jane’s increase are Mordecai, Martha, Geny, Paul, Charles, Harry, Laurens, and Martha’s children, Andrew, Joe and Paul.
    The bill further stated, that William Priester, the testator, gave off' property to his children upon their marriage, and that his executors have since advanced Harriet Hunter upon her marriage. That at the filing of the bill, the time was near at hand when the proceeds of sale of testator’s estate would be realized, and the net balance for distribution ascertained; that a difference of opinion as to the construction of the sixth clause of testator’s will exists between the parties interested, which renders -a resort to the Court indispensable; the complainants contending that the testator intended, when the period for division should arrive, that six-eighths of the value of all the slaves and increase bequeathed by the will of Matthew Moye to Harriet Rice for life, and one-fifth of the residue of said Matthew Moye’s estate, and the value of the property and increase embraced in the deed to Moye’s trustees, should be added to the net amount of the sales, and that from said sales one-eighth of the aggregate of sales and estimated values should be paid to complainants, Jones M. Williams and Rebecca his wife, in right of the latter, and one-eighth to the complainant, George J. Priester, and the balance of the said sales divided among the six children of the testator, by his second marriage ; while, on the other hand, the adult defendants contend that the values of the life-estates of Harriet Rice and Elizabeth Priester should be deducted in the estimate of the property, and the balance only be added to the sales.
    The bill práyed that the defendants may answer; that evidence be taken under the direction of the Court, to ascertain the value of all the property given off. by testator and by his executors, and also of the value of all the slaves before mentioned, as in the possession of Harriet Moye, (now Pice,) under the will of Matthew Moye, and of the slaves in the possession of Elizabeth Priester, under the deed of Matthew Moye, and also of the “ Gill Tractand that complainants, George J. Priester, and Jones M. Williams and Pebecca his wife, (in right of the latter,) may be decreed to be entitled severally to be paid from the net balance of the sales, one-eighth part of the aggregate amount of sales and. values of slaves and land conveyed, devised and bequeathed by Matthew Moye, (deducting shares of child and grandchildren of Gatsy McMillan,) and one-fifth of residue of Matthew Moye’s estate, as established by the Ordinary’s decree;' for general relief, &c.
    The answer of defendants admitted the facts set forth in ■ the bill, but submitted that the value of the life-estates of Harriet Pice and Elizabeth Priester should be deducted from the values of the property conveyed, devised and bequeathed by Matthew Moye, and that the value of the remainders only should be added to the sales of the estate of the testator, William Priester.
    The circuit decree is as follows:
    Carroll, Ch. There is no contest among the parties as to the facts. All that are material are contained in the pleadings and exhibits, and a recital of them here would but serve to incumber the decree. Under the deed of Matthew Moye, referred to in the bill, the children of the testator, William Priester, by his last wife, Elizabeth Priester, take interests in remainder after the life-estate granted to their mother, if they survive her, subject to be divested, however, iu the event of their all dying unmarried before attaining respectively the age of twenty-one years. They are also entitled under the .will of Matthew Moye, who was their 'mother’s father, to an interest in remainder in certain negroes bequeathed for .life to his widow, and their maternal grandmother, Harriet Moye, now Harriet Eice, to the beneficial enjoyment of which, however, they are not to be admitted until attaining respectively their majority. Their maternal grandfather by his will also made a further provision for them, directing 'his residuary .estate to be sold,.and one-fifth of the proceeds “to be divided between all the children that their mother might have to arrive to the age of twenty-one years,” the interest meanwhile to be appropriated by her.
    The controversy between the parties relates to the construc'tion of the sixth clause of William Priester’s will. The testator, Priester, after referring to the dispositions of the deed and will of Matthew Moye, in favor of his children by his last marriage,'declares it to be his desire to place the children by his. first wife on precisely the same footing iii point of property with his children by his last wife, except in so far as his will shall otherwise provide, and then directs the proceeds of the sales of his residuary estate to be divided among his children in “such shares and proportions as they ■would have taken had he been the owner of the property referred to as being embraced in the said deed and will of Matthew Moye, as. well as his own property, and had directed the whole to be equally divided among all his children.” As if conscious that there.was something of ambiguity and inexplicitness in this provision, the testator, in the immediate sequel of the same clause, thus explains and defines his meaning: “ in other words, supposing the property embraced in said deed and will to be worth ten thousand dollars,' and the ^ said residue of my own property to be worth twenty thousand dollars, my will would be effected by giving to each of my said children by my first wife the sum of three thousand seven hundred and fifty dollars out of my own property, and I direct my executors to be governed by this principle of division.” At the date of his will, as also at his death, the children of the testator, Priester, were eight in number, two of them the issue of his first marriage, and the remaining six the offspring of his last marriage. Of the latter, three are still infants, and unmarried, and Elizabeth Priester, the testator’s widow, and her mother, Harriet Eice, yet survive.
    It is contended on the part of the defendants that the words contained in the sixth clause, “ except in so far as this will shall otherwise direct,” have reference only to the small pecuniary legacy of $200, bequeathed to the testator’s son, Nicholas Franklin; that beyond this, no inequality whatever was designed by the testator in the division of his residuary estate among all his children; that interests, though in fee, if contingent or defeasible, or postponed in enjoyment, are certainly not equivalent in value to absolute estates in immediate possession, and that to preserve the footing of equality of which he speaks, the words of the testator, “ the property above referred to as being embraced in the said deed and will of Matthew Moye,” should be interpreted to mean the legal interests, and not the corpus of the property accruing to the children of the second marriage under those instruments.
    The testator’s declaration of his desire to place the children of both marriages upon the same footing in point of property, it is apprehended, reflects but faint light upon his meaning in the sequel of the clause; it does not commit him to any measure of equality or to any given approximation to it. His children are all of them to be placed on the same footing, except in so far as his will shall otherwise direct. Exact equality was certainly not within his contemplation ; for he recognizes his will as departing from it. The equality which he contemplates is to be discovered only in the dispositions of that instrument. To attempt any estimate of the present value of the interests conferred upon the testator’s children of his last marriage by the deed and will of their grandfather, would be to plunge at once into a wilderness of uncertainty and conjecture. It might perhaps result in producing inequalities greater than those complained of. If an attempt were made to estimate with exactitude the present value of the interests accruing to the testator’s children by his last wife, in the estate devised to their grandmother for life by the will of Matthew Moye, different valuations, it would seem, should be placed upon the interests of such as have married, or have attained their majority, and such as have not; for if the life-estate of the grandmother were now to fall in, while the former would be entitled to the immediate possession of their portions, it would be withheld from the latter until they were married, or had attained the age of twenty-one years. The same is true as to the interests of the children of the last marriage in the residuary edtate of Matthew Moye. Those who have arrived at full age are entitled to receive, and perhaps have already received, their portions. While those who are infants, if they have any vested interests at all, (which may well be doubted,) are certainly precluded from possession until they have attained respectively to the age of twenty-one years. But the necessary effect of such a valuation would be .to assign to the children of the second marriage unequal shares, as between themselves, in the estate of their father. Such a result would seem not to have been intended by the clause in question, the plain purpose of which was to prevent to some extent at least, inequalities between the children of the first and second marriages, and not to introduce them among those of the second marriage. It would be further objectionable as having the direct effect of aggravating the inequalities which already exist, in favor of the testator’s infant children, whose maintenance and education are charged upon the entire income of the whole estate for the term of five years next succeeding his death.
    
      It is farther to be observed that the interests in remainder limited to the children of Elizabeth Priester, by the deed and will of her father, are not restricted to the issue of her marriage with her late husband, William Priester. Their expectant interests, under both deed and will, might be seriously diminished, should their mother contract a second marriage, and leave other children, and the like effect upon their interests in remainder, under the latter instrument, might result, if other children should be horn, to their aunt, Mrs. Gatsy McMillan. Thus another element of contingency and uncertainty is infused into the interests 'in question. The process by which the defendants propose that division shall be effected, appears therefore to be singularly artificial and involved. It has but little to commend it, and gives promise of none other than most unsatisfactory results.
    The term “ property” or “ estate” will,, in. general, embrace ■ both realty.and personalty, and will be construed, it is apprehended, to describe the quantity of interest, or .the subject of it, or both, as may be required, by the context of the will. 1 Jarm. 664; 4 Kent, 535. In the second, fourth, fifth and seventh clauses of his will, the testator has employed the word “property” to denote the corpus of such property, or the absolute interest in it, associated with the right of immediate possession. There is nothing in the sixth clause to indicate that it is there used in a different sense. The division among his children which is directed by. the clause in question, implies of necessity that the property there described “ as being embraced in the deed and will of Matthew Moye” should be valued. But it is to be valued, not as the property of his children, but as. though it were his own property — as though it were disengaged wholly from the control of the deed and will of Matthew Moye, and were made entirely subject to the dispositions of his own will. His children by the first wife are to take such a share of his own residuary estate as they would have taken of that estate added to the property referred to “ as being embraced in the said deed and will of Matthew Moye,” had he been the owner of the latter as well as of the former property, and had directed the whole to be equally divided among all his children. The very scheme of division, the very language of the clause, supposes the testator to be the owner of the property embraced in the said deed and will of Matthew Moye, in the same sense and degree in which he was the owner of his own residuary estate. The latter belonged to him absolutely and in possession, a fit subject for the division proposed, while the former was given to his children upon contingencies still pending in unascertained proportions, and postponed in enjoyment— condition's which rendered it eminently unfit for immediate division. In his scheme of division, the testator supposes the two bodies of property to be assimilated, and if so, he must have regarded the property embraced in the said deed and will of Matthew Moye as conforming to his own absolute property in possession, and not the latter as conforming to the former.
    Such it appears to the Court is the true construction of the clause in question. So far as the younger children of the second marriage are concerned, they have some and perhaps sufficient compensation for the inequalities complained of in the provision of the will, which charges their maintenance and education for the term of five years upon the income of the whole estate. As to the elder children of the second marriage, the bulk of the property which they derive from their maternal grandfather will come into enjoyment upon the death of their grandmother. In the course of nature this event will not probably be long delayed. The testator may have supposed that it would occur before the lapse of the five years, during which he directs his whole estate to be kept together. But whatever may 'be the inequalities to result, they are caused, it is conceived, by the dispositions of the will itself, and are beyond remedy in the Courts.
    
      In his lifetime, the testator made gifts of property to certain of his children, and during the five years immediately succeeding his death, his executors, being authorized by his will, delivered a negro girl to his daughter, the defendant, Harriet, upon her marriage with W. M. Hunter. The property so acquired by his children respectively, the testator directs to be taken into account in the general division of his estate, “ and to be then estimated at its value when given off.”
    It is ordered and decreed that the children of the testator, William Priester, are entitled to have the net proceeds of the sales of his residuary estate divided among them, according to the construction of his will hereinbefore declared and adjudged.
    It is further ordered that an account be taken of the testator’s estate, and of its administration by his executors, and of the value of the property to which his children by his last wife are entitled under the deed and will of their grandfather, Matthew Moye, to be ascertained as hereinabove adjudged ■ as also of the portions of property given by the testator in his lifetime, and since his death, by his executors to his children respectively, with the value of such property when “ given off”
    And it is further ordered, that the Commissioner report the • amount of the net proceeds of the sales of the residuary estate, and the proportions in which the same should be divided among the children according to their rights as hereby adjudged, taking into the account the property given to his children respectively, in his lifetime, by the testator, and since his death, by his executors.
    Let the costs be paid out of the testator’s residuary estate.
    The defendants appealed, and now moved this Court to reverse the decree, on the grounds:
    1. Because his Honor has, in and by his said decree, ordered and decreed that the absolute and entire fee simple value of tbe property conveyed, devised andbequeathedby tbe deed and will of Matthew Moye, be-added to the sales of the estate of William Priester, prior to the distribution thereof; whereas, it is submitted that only tbe values of tbe remainder of said property, after tbe termination of tbe life-estates of Elizabeth Priester and Harriet Bice, should be added.
    2. Because the rule of valuation of tbe property, conveyed, devised and bequeathed in remainder by Matthew Moye, prescribed and ordered by bis Honor tbe Chancellor, in bis said decree, is contrary to tbe true and plain intent and meaning of the will of William Priester, is unequal, unjust and unreasonable, and contrary to law and equity.
    Tbe complainants also appealed, and now moved this Court to modify the decree in this: That by proper construction of tbe will of William Priester, tbe valuation of tbe property embraced in tbe deed and will of Matthew Moye should have been decreed to be computed as of tbe same date when tbe value of said William Priester’s residuary estate was ascertained by tbe sale thereof, to wit, 12th March, 1861.
    
      Hutson, for defendants,
    cited 1 Spence Eq. Jur. 508-9, 537, 557-8; 2 Wms. on Exors. 714-5; Wright vs. Jennings, 1 Bail. 57.
    
      Maher, for plaintiffs,
    cited Douglass vs. McMaster, 1 Sp. 39; Wig. on Wills, 30; Ghurch vs. Mundy, 15 Ves. 396; Bosborough vs. Hemphill, 5 Bicb. Eq. 99 ; 5 Stat. 163 ; Buist vs. Daws, 4 Bicb. Eq. 413 ; Dar'gan & Bradford vs. Bichardson, Dud. 62; 2 McC. 344; 2 Hill’s Cb. 240 ; Glover vs. Harris, 4 Bicb. Eq. 25 ; Geiger vs. Brown, 4 McC. 418 ; Felder vs. Felder, 5 Bicb. Eq. 515; 7 Bicb. Eq. 25; Bail. Eq. 298 ; Sp. Eq. 385 ; 2 Wms. on Exors. 923.
   The opinion of the Court was delivered' by

Inglis, J.

This appeal raises but a single question. The testator, William Priester, in the sixth clause of his will, reciting the provision which had been made for the children of his second marriage by their grandfather, Matthew Moye, and avowing his desire so to dispose of his own property as to place the two children of his first marriage “ on precisely the same footing in point of property” with the children of his second marriage, thus prescribes the manner in which the residue of his estate shall be distributed in order to fulfil this desire“Now I hereby direct my said executors, or the survivors of them, to sell, at the expiration of the said five years, all the rest and residue of my estate, real, personal and mixed, and to divide the proceeds of sale among my children in such shares and proportions as they would have taken had I been the owner of the property above referred to as "being embraced in the said deed and will of the said Matthew Moye; as well as my own property, and had directed the whole to be equally divided among all my children. In other words, supposing the property embraced in the said deed and will to be worth ten thousand dollars, and the said residue of my own property to be worth twenty thousand dollars, my will would be effected by giving to each of my said children by my first wife the sum of three thousand seven hundred and fifty dollars out of my own property, and I direct my executors to be governed by this principle of division.”

It will be seen from the pleadings that the interests which the children of the second marriage take in the things, to wit, lands, slaves, &c., given by their grandfather, are, at the best, estates in expectancy only, and that the actual participation of individuals of the class in the ultimate enjoyment in possession,.and the extent of that participation, are liable to be affected by various contingencies. It is claimed, on the one part, that in order to ascertain the share to which each of the two children of the first marriage is entitled in the' residue of the testator’s estate now to be distributed, the executors must have respect to the value of the things themselves given by Moye to the children of the second marriage, as if these children were now in possession and absolute owners; and it is required, on the other part, that the value of such estate or interest only as they now have in those things shall be regarded. The Chancellor who heard the cause on the circuit adopted the former view, and the defendants below, disputing the correctness of his decree in this particular, have renewed the question here.

The judgment of the Court on such a question'must, of course, conform to the intention of the testator, and that intention may be best discovered, ordinarily, from the language in which it is expressed. But all the language used for this purpose must be taken into consideration. If the testator has undertaken to explain in detail general or concise forms of expression previously used, his explanation must, for the purposes of the particular construction, be accepted as the correct one. When this testator, for example, in the eighth clause of his will, says: If any devisee or legatee herein named, that is to say, if any one of my children shall happen to die,” &c.; although the general words first used would include the wife, who is a devisee and legatee under the will, yet inasmuch as the testator has, by the subsequent words, defined and restrained the application of those general words, no one' would question what interpretation it is proper to put upon the general words in the execution of the will. So when the testator, having avowed in general terms his desire to put the children of his first marriage precisely on the same footing in point of property with the children of the second marriage,” regard being had to the gifts to the latter by their grandfather, and proceeds immediately to direct in detail the mode in which this purpose, as it existed in his mind, shall be accomplished, whatever is the reasonable interpretation of tbe detailed explanation, must be accepted as the meaning of the general terms. In such case the inquiry is, not whether there shall be a sacrifice of a particular intent, as seemingly indicated by the terms of a separate and independent disposition -of the will, to the general intent on the same general subject as disclosed throughout the will, but what is the general intent on the subject in the light of the testator’s own explanation and definition of the general terms in which he is supposed to have expressed it. It seems not unworthy of observation here, too, that the general words on which the appellants rest their claim occur in the preamble or reciting part of the clause, and the subsequent detailed explanation in the disposing part. It might well be thought to follow from this, that even if the words of disposition, in their fair and reasonable interpretation, are narrower than the words of recital, the former ought rather to control.

It is assumed by the appeal that the purpose of this testator, as expressed by the general terms relied on, was to bring about an absolute equality in point of fortune or estate among his children. The accomplishment of such a purpose it was not in his power, under the circumstances, to insure, and neither of the proposed interpretations will effect it. That which he does propose is to put them on precisely the same footing in point of property.” And this word " property” is that which is used in the detailed explanation following to describe the subject-matter which, as received by the second class of children from their grandfather, he requires shall be valued and added to the proceeds of the sale of the residue of his own estate, to constitute the fund, an equal share in which he directs that each of his children shall have. Certainly this word may be and is used to describe the quantity and nature of interest or the estate which one has or is to take in the subject of disposition, conveyance or ownership. And perhaps in etymological strictness it cannot comprehend more than such interest, for that is the exact extent or measure of the property or proprietorship which one has in things. And yet the popular and ordinary sense in which lay or unprofessional persons use the word, must, I think, be admitted to have respect rather to the things themselves than to the estate held in them. This testator, in the particular clause of his will under present consideration, -employs this word not less than nine times, and it must be evident to every reader of his language that in, at least, seven of the nine, he means by it the things and not the estate held in them. It is equally true that the same word is used five times in the other clauses of the will, and in every instance in the same sense. And in the particular instance in which the testator uses it to describe the subject of valuation, to which the executors are to have reference in distributing the residue of his own estate, he says, “the property embraced in said deed and will,” not the property given to or vested in or limited to the children therein. Comparing this language with that used in the early part of the clause when reciting the gifts by Moye, it is difficult to doubt that he employs the word in this instance in the sense so often elsewhere conveyed by it. It does not seem a reasonable or fair interpretation of the testator’s language, then, to regard him as having, on the only other occasion on which he employs this word, used it in a different, and that rather an artificial or else nicely radical sense.

"We are of opinion that the testator — not at the time having in his view the uncertainties and contingencies to which the interests of the children of his second marriage in the lands, slaves, and other things given by Moye, were subject, or the exact legal nature of their estates therein, and overlooking the interposed interests which, it is probable, were not practically affecting their present enjoyment of a large part of those things, jointly with their mother — regarded the lands, slaves, &c., as substantially belonging to the children. Not looking beyond tbe period fixed for tbe final distributioii of tbe residue of his own estate, he intended that the things themselves which Moye had, by deed and will, given, should then be treated as the “property" of the children of his second marriage, and valued and added to the residue of his own property, as at that period existing, to make the fund, an equal share in which was to be secured to each of the children of his first marriage out of so much of it as he could dispose of. No equality beyond this seems to have been aimed at. Such was the conclusion of the Chancellor on the circuit, and it is therefore ordered that his decree be affirmed, and the defendant’s appeal dismissed.

The attention of the Chancellor seems not to have been called to the necessity of ascertaining the precise point of time, in reference to which, for the purpose of distribution, a valuation should be made of the property given to the children of the second marriage by the deed and will of Matthew Moye, as recited in the sixth clause of testator’s will. It is the opinion of this Court that this property, in the sense ascertained by the present judgment, should be valued as of the time fixed by the testator for the distribution of the residue of his estate, to wit, at the expiration of five years from his death. This time, as it appears from the pleadings, was the 12th March, 1861. In order to supply the inadvertent omission, it is ordered that the valuation be made in conformity with this opinion.

Dunkin, C. J., and Wakdlaw, J., concurred.

Decree modified.  