
    *Henderson’s Ex’ors and Devisees v. Peachy.
    May, 1831.
    (Absent Tucker, P., and Brooke. J.)
    Wills — Construction—Limitation of Contingent Re-mainers in Moieties - Case at Bar. — Testator devises real and personal estate, “to his two daughters, viz. the one moiety thereof to M. and the other' moiety thereof to J. for their lives; remainder to .their children, who shall be living' at the time of the decease of either of his said daughters; which remainder to the children, to be per capita and not per stirpes: so that upon the death of either daughter, her moiety shall go in remainder, not to her children, but to them and the children of the surviving daughter, in fee;”
    Held, this was not a limitation of the whole remainder of the whole estate, to take effect on the death of the daughter first dying, and to vest in children of both then in esse, liable to open and let in children of the survivor after born; but, as it was a devise of the estate to the two daughters in several moieties for life, so the limitation was of the remainder in several moieties also; a limitation of the remainder of each moiety; expectant on each life estate, upon the death of each daughter, to children of both living at the death of each; so that, upon the death of the daughter first dying, the remainder of her moiety only should vest in children of both then in esse, and upon the death of the survivor, the remainder of her moiety should vest in children of both then in esse; a base fee in the real estate, and the undis-posed of remnant of interest in the personal, descending and passing to the two daughters, the testators heirs at law and distributees, and awaiting the contingencies on which the contingent remainder of the real, and executory bequest of the personal, were limited.
    John Blair late of the city of Williams-burg-, who died in 1800, by his last will and testament, devised and bequeathed as follows — “I give, devise and bequeath my plantation in Albemarle county, commonly called the Mountain Plain, together with the slaves and stock of every sort kept thereon, to njy two dear daughters, that is to say, the one moiety thereof to Mary the wife of Robert Andrews, *the other moiety thereof to Jane the wife of James Henderson, for, and during their natural lives; remainder to their children who shall be living at the time of the decease of either of my said daughters or dev-isees for life, and the heirs of such children; which remainder fo the children to be per capita and not per stirpes; so that upon the death of either of my said daughters, her moiety shall go in remainder, not to her children, but to them and' the children of my surviving daughter in fee simple. As by this disposition to'the children, the land, in case of many shares, may come to be divided in such small shares, that it would be better for all parties to sell the same, and divide the money among them, I hereby authorize that to be done during the minority of some of the parties, if from circumstances it should be thought advisaable. ”
    The testator’s daughter Jane Henderson died in 1811, leaving one child, a son named Thomas, who died in 1814, an infant, without issue, and intestate, his father James Henderson and his aunt Mary Andrews him ‘surviving. James Henderson, after the death of his son Thomas, claimed, as heir and distributee of his son, one moiety of the estate, real and personal, and the remainder of the other moiety expectant on the life of Mary Andrews. He died in 1818, having by his last will and testament, devised and bequeathed all his interest in the estate, real and personal, to his three children by a second wife, James, Walter and Elizabeth Henderson, with a limitation over, in case of all of them dying in infancy, unmarried and leaving no children, to others of his kindred. William and Alexander Brown were his executors. Mary Andrews died in 1820, having first made her last will and testament, bequeathing to Thomas Griffin Peachy whatever was due to her on account of the profits of the estate, accrued since the death of her nephew Thomas Henderson, and devising and bequeathing all the residue of her interest in the estate, real and personal, to John Blair Peachy.
    *J. B. Peachy and T. G. Peachy exhibited their bill in the superiour court of chancery of Staunton against the executors and devisees of James Henderson (who after the death of Mrs. Andrews, took and held possession of the whole estate, real and personal) ; wherein T. G. Peachy prayed an account of the profits accrued between the death of Thomas Henderson and that of Mrs. Andrews, and J. B. Peachy claiined that he was entitled to one moiety, at the least, of the estate real and personal, and prayed a decree for partition and division of the land and of the slaves and other personal estate, and an account of profits accrued since Mrs. Andrews’s death.
    The executors and devisees of James Henderson, in their answers, insisted that they were entitled, respectively, to the whole of the estate, real and personal.
    The court of chancery held, that this was not a limitation of the whole remainder of the whole estate, to take effect on the death of the daughter first dying, and to vest in the children of both then in esse, liable to open and let in any after born children of the survivor; but, as it was a devise of the estate to the two daughters in several moieties for life, so the limitation was of the remainder in several moieties also; a limitation of the remainder of each moiety, expectant on each life estate, upon the event of the death of each daughter to the children of both who should be living at the death of each; so that, upon the death of the daughter first dying, the remainder of her moiety only, should vest in the children of both then in esse, and upon the death of the surviving daughter, the remainder of her moiety should vest in the children of both then in esse; a base fee in the real estate, and a remnant of interest in the personal, not being disposed of, descending and passing to the two daughters, twho were the testator’s heirs at law and distributees, and awaiting the contingencies on which the contingent remainder of the real, and executory bequest of the personal, were limited. And the court pronounced an interlocutory decree, declaring that the plaintiff J. B. Peachy was entitled *to one moiety of the real estate in question, and to one fourth part of the slaves and other personal estate; appointing commissioners accordingly, to set apart and allot the same to him; and directing accounts of the slaves and their increase, and of the profits of the whole subject accrued since Mrs. Andrews’s death. From which decree Henderson’s executors and devisees appealed to this court.
    Stanard for the appellants,
    contended, that upon the just construction of the will, it was a devise and bequest of the estate to the two daughters, in equal moieties, for life, with a remainder, limited to take effect upon the death of the daughter first dying, to the children of both daughters then living, so as that, upon that event, the children of both then living, should take the intire remainder of the whole estate; that is to say, the remainder of the moiety of the daughter first dying in immediate possession, and a vested remainder in the moiety of the surviving daughter expectant on her life; subject, however, to open in case the surviving daughter should have any children afterwards born, and to let them in for an equal share of the whole subject. That, consequently, upon the death of Mrs. Henderson, the whole remainder of the whole estate vested in her son Thomas, one moiety immediately in possession, the other in expectancj” after his aunt Mrs. Andrews’s death. And that, as there were no children afterwards born to Mrs. Andrews, to participate with him in the estate; and as he derived his whole interest by purchase under the will of his grand father, not by descent from his mother as to any part; therefore, upon the his death, though he died in infancy, whole estate, real and personal, descended and devolved to his father James Henderson, his sole heir at law and distributee.
    He said, there was no other construction, which would at once ensure the whole remainder of the estate expectant on the life estates of the testator’s daughters, to his grand children by both daughters, and give to all and each of them *equal shares per capita; which was the manifest purpose of the will. Th'ere was only one limitation over as to the whole remainder, and that limitation was to take effect upon the happening of one event. The event upon which the estate was limited over, was “the death of either” daughter; a phrase of well understood and definite signification, meaning the death of the one or the other: therefore, the death of the one first dying, was the event on which the remainder was to take effect. And the remainder was limited to “their children” (that is, the children of both) “who should be living at the death of either” (including all the children of both, who should be living at the death of one and at the death of the other) “so that, upon the death of either” (upon the death of one or upon the death of the other) “her moiety should go in remainder, not to her children, but to them and the children of the surviving daughter;” meaning clearly, the children which both should have at the death of the one first dying, and those which the survivor should have at her death. That the testator intended exact equality among all his grand children by both daughters, whenever born, and apprehended they might be numerous, was plainly indicated, by the direction that they should take per capita and not per stirpes, and by the authority given to sell the land, and divide the money, in case it should come to be divided into many small shares.
    He insisted, that the construction he proposed would effect the intent, and the whole intent, of the testator: and that any other construction would disappoint it; so far, certainly, as to defeat the purpose of exact equality among all the grand children by both daughters, -which the testator so plainly wished and so carefully provided for. The testator could not possibly have intended, that the remainder should take effect as to the several moieties, at several times and upon several events, and devolve to different sets of grand children; that the remainder of the moiety given to Mrs. Henderson for life, should take effect at her death, and vest *in the children of both daughters then living, and that the remainder of the moiety given to Mrs. Andrews, for life, should take effect at her death, and vest in the children of both then living. He said, the consequences of such a construction, were enough to condemn it: for, suppose Mrs. Henderson to have died first, leaving one child, and after her death Mrs. Andrew's to have had many children, and then died ; Mrs. Henderson’s child would have taken his mother’s moiety, and then participated equally with the children left by Mrs. Andrews in her moiety, while these could claim no participation with him in his mother’s moiety — or, suppose Mrs. Henderson to have died childless, Mrs. Andrews surviving her and having one child living at the time of her death ; and then suppose Mrs. Andrews to have had many children born after her sister’s death, and then died ; the child born before that event, would have taken Mrs. Henderson’s intire moiety absolutely, and then come in for an equal share of his mother’s moiety with his brothers born after that event, while these would be excluded from participation with him in their aunt’s moiety. Consequences like these would be utterly irreconcileable with the obvious intent and the whole scheme of the will; and the construction that would lead to them, could not be adopted, without supposing that the testator studiously selected the most ambiguous words to express his meaning.
    And as the construction he contended for, upon which the intire remainder of the whole estate vested, upon the death of Mrs. Henderson, in the only grand child of the testator then living, subject to open to let in any grand child that might be afterwards born of Mrs. Andrews, would best effectuate the intent of the testator, so it was perfectly conformable with the rules of law, that the estate so vesting in one, should devest as to the proportions of others after wards becoming capable. He referred to Butler’s Fearne, 312-315, and the cases there cited, Matthews v. Temple, Comb. 467; 1 Ld. Ray. 311; Oates v. Jackson, 2 Stra. 1172; Doe v. Perryn, 3 T. R. 484; Doe v. Martin, 4 T. R. 39.
    '^Johnson and Beigh for the appel-lee,
    premised, that it was no uncommon case, that the provisions of a will calculated to operate on future events, the exact state of which, as they afterwards turn out, the testator did not foresee, and therefore did not distinctly provide for, should produce, in their application to the actual events, effects not foreseen, and so not intended, by the testator. In this case, there was no possible construction, upon which the testator’s intent, as expounded by the appellants’ counsel, might not have been eventually disappointed. If, as he contended, the death of the daughter first dying, was the event upon which the intire remainder of the whole estate was limited over, then, in case Mrs. Henderson had died childless, her surviving sister being at the time also childless, the intire remainder of the whole estate would have been defeated and gone.
    The first took up the question as to the real estate; as to which, the first proposition they advanced was, that upon the death of the testator, the two daughters took, by the will, each, a several life estate in a moiety, and by descent in parcenary, the fee simple of the whole, but a base fee, subject to contingent remainders limited to their children. They said, there was no doubt, that the will devised a moiety of the land to each of the daughters, for her life, in such manner as that the life estate of each in her moiety, was, in a legal view, several and distinct from that of the other. The testator apparently looked to an actual division between them; and, certainly, either might at any time have demanded and obtained one; but an actual division of the subject, was by no means necessary to sever their titles; for, by force of the will alone, so far as concerns the points in question, each took a several vested estate for life in a moiety. The remainder in fee expectant on these several life estates, being devised to the children of both daughters who should be living at the death of either, was a contingent not a vested remainder; a remainder limited to persons not ascertained by the limitation itself, nor ascertainable till the happening of a future event or events, when *there might or might not be persons in being answering the description of the remainder-men, so that it was uncertain whether the remainder would ever vest at all, or if it should vest, in whom. This limitation too (though the distinction, in this case, might be unimportant) was a contingent remainder, not an executory devise; for it was an inflexible rule that such a limitation should never take effect as an execu-tory devise, if it might possibly take effect as a contingent remainder; as this certainly might; the remainder being-limited on particular freehold estates capable of supporting such a remainder, and limited on such a contingency that it must vest, if at all, instantly on the termination of the particular estates. Then, the limitation of the remainder in fee expectant on the preceding ■ life estates, being a contingent remainder, not certain as to the persons in whom it should vest, nor certain to vest at all; and the fee simple and inheritance not being disposed of by the will, in the mean time; the fee descended to the testator’s heirs at law, his two daughters, and remained in them, awaiting the appointed contingency that should devest it in favour of the remaindermen.
    In this state the title remained till Mrs. Henderson’s death. Her surviving sister bad no child ; and she left but one. What did he then take, by force of testator’s will? A vested estate in possession in his. mother’s moiety, and a vested remainder in his aunt’s moiety expectant on her life estate? or, a vested estate in his mother’s, moiety, with a mere possibility of ultimately getting the whole of his aunt’s moiety, depending on the contingency of his surviving her, and being the only grand child of the testator that should survive her? They contended, that as the will devised several life estates in several moieties to-each daughter, so it devised the remainder of each moiety, severally and respectively, to their children; that the remainder, as well as the particular estate, passed in several moieties. The testator’s language (after the devise of the life estate, in moieties expressly, to his two daughters) was, “remainder to their ^children who should be living at the decease of either” of the- daughters. These words might, perhaps, in a strict sense, import alternative contingencies. But the word either, as here used, meant each, which indeed was one of the senses of it, in very common use; and the word remainder was explained by the context to means the several remainders of the respective moieties. For, they said, the word remainder was a word of relation: its antecedent here, was a several life estate, in each moiety, previously given to each daughter: the remainder was to take effect after each life-estate, as it should be determined by the death of each daughter; and, as the life estate bn which the remainder depended were several, so was the remainder expectant upon each of those life estates, a several remainder. And that this was the just construction, seemed plain from the subsequent words, professedly explanatory, whereby it was provided, that upon the death of either of the daughters, her moiety (only) should go in remainder, not to her children, but to them and the children of the surviving daughter. The death of either daughter was the event upon which her moiety was to go over in remainder, and" the event by which the remaindermen to take that moiety, were to be ascertained ¿ and the death of the other daughter, was the event, by which her moiety was to go over in remainder, and the remaindermen as to it were to be ascertained. And whatever might be the consequences of such a construction, they contended it was the just construction and true effect of the will, that the remainder was to take effect as to the several moieties respectively, at several times and upon several events, and devolve, perchance, to several sets of remaindermen.
    It was argued by the appellants’ counsel, that the consequences of this construction sufficed to condemn it: but the consequences of his construction would be equally, if not more, abhorrent from any intention that could possibly be attributed to the testator. If the death of the daughter first dying, was the event upon which it was intended that *the contingent character of the intire remainder of the whole estate should cease, and by which the remainder-men should be ascertained, who should lake the fee simple in possession of the moiety of the daughter first dying, and a vested remainder in fee in the other moiety expectant on the lile estate of the survivor ; then the grand children in being at the death of the daughter first dying, would take absolutely. Their estate so vested, would not open to let in any after born children of the surviving daughter, for an equal share of the subject. 'The after born children could never claim an estate limited in remainder upon a particular estate which determined, and upon a contingency which happened, before they were in being and capable to take; as to them, the contingent remainder would be gone, for the plain reason, that they were incapable to take, both when the estate determined, and when the event happened, on which the remainder depended, and was to take effect. The passage cited from Pearne, concerning shifting uses, and the cases there referred to, only shewed, that “where a contingent remainder is limited to the use of several, who do not all become capable at the same time; notwithstanding it vests in the person first becoming capable, yet it shall de-vest as to the proportions of the persons afterwards becoming capable before the determination of the preceding estate. ’ ’ Now, upon the hypothesis of the appellants’ counsel, the preceding estate before the determination of which Mrs. Andrews’s children must have become capable to take, in order to bo entitled to come in, was the life estate of Mrs. Henderson, since it was her life estate upon the determination of which the contingent remainder was to vest. Thus, his own argument arid authority concluded directly against the opening of, the estate once completely vested, upon the death of the daughter first dying, in the grand children then living, to let in the children of the surviving daughter that might be afterwards born. And then, the consequence of the construction proposed for the appellants, would be, that all grand children of the testator, who should be born after the death *oi whichever of his daughters should first die, were wholly unprovided for. And again, if one of the daughters had died leaving a child, the other having none at the time, and that child had died before the surviving daughter, and then she had died leaving many children born after the death of her sister; in such case, the remainder of the whole estate having vested in the child of the daughter first dying in absolute fee, the estate would, on the death of that child, pass to his heirs his (father, or half brothers and sisters on the part of the father, if any, since he would have derived the estate, not by descent from his mother but by purchase under the will of his grand father) and the children of the daughter last dying, the sole remaining objects of the testator’s bounty, would be excluded from any share of it.
    They understood the wi’l then, as a devise of the plantation &c. to the two daughters, in several moieties, for life; remainder, as to each moiety respectively, expectant on each life estate, to the children of both daughters who should be living at the death of each of them; so that upon the death of each, her moiety was to go in remainder, not to her children onl3r, but to them and the children of the other (meaning still such as should be living at the death of each, respectively) in fee simple, per capita and not per stirpes. And so understanding it, the effect of the limitation was, that on the death of Mrs. Henderson leaving one child, her sister surviving and being childless at the time, Mrs. Henderson’s child, Thomas, took a vested estate in possession of that moiety whereof his mother had the life estate. The remainder of the other moiety, expectant on Mrs. Andrews’s life estate therein, still continued a contingent remainder, that might or might not take effect: if she had died childless, and her nephew Thomas had survived her, he would have taken this moiety also: if she had had children born after the death of her sister, and then died leaving both her own children and her nephew Thomas surviving her, her children and her nephew would have taken this moiety in equal shares, per capita: if she had had ^children born after her sister’s death, and her nephew Thomas had died before her, and her own children had survived, they would have taken this moiety: and, in the case which actually happened, of Mrs. Andrews surviving her nephew Thomas, and then dying childless, the contingent remainder in this moiety was disappointed by the event, and gone. The reversion in fee of this moiety, as well as of the other — the base fee subject to the contingent remainder —not having been disposed of by the testator’s will, had passed by descent from him to his two daughters, in equal moieties ; and upon the death of Mrs. Henderson her share of this base fee of Mrs. Andrews’s moiety, descended directly from her to her son Thomas. This base fee eventually became pure and absolute.
    During the lives of Mrs. Andrews and Thomas Henderson, after his mother’s death, the state of the title stood thus: Thomas had a vested fee simple in possession in his mother’s moiety, which he derived by purchase under his grand father’s will. Mrs. Andrews held the life estate in the other moiety; of which the fee simple, that is, the base fee subject to the contingent remainder limited by the testator’s will, was vested in her and her nephew Thomas, he claiming this interest by descent from his mother.
    Upon the death of Thomas Henderson, that moiety which had vested him in fee upon the determination of his mother’s life estate therein, by force of the limitation in his grand father’s will, and so was derived by purchase directly from his grandfather, descended to his own father, who was his heir at law as to it, and passed by his will to the appellants, his devisees. But that portion of the fee simple of the moiety wherein Mrs. Andrews still held the life estate, which had vested in Thomas Henderson at his mother’s death, having been derived by descent from his mother, and he dying an infant, and leaving a maternal ■aunt surviving him, descended to that aunt, Mrs. Andrews, to the exclusion of his father, according to the exception in the statute of descents, 1 Rev. Code, ch. 96, $ 12, p. 356. So that *Mrs. Andrews now held not only her life estate in this nioiety, but the fee simple also, subject still to the contingent remainder limited by her father’s will, which might possibly still take effect in favour of any children she might have and leave.
    When Mrs. Andrews died, there was no child living of either daughter of the testator; there was no person in being answering the description contained in his limitation of the contingent remainder expectant on her life estate in her moiety; no person capable to take this remainder. As to this moiety, the contingent remainder failed, because the contingency did not happen. Her fee in this moiety, therefore, which before her death was a base conditional fee, became upon her death, ed in-stante, a pure and absolute fee; which, consequently, passed by her will to her dev-isee thereof, the appellee.
    Then, as to the personal subject, they said, the intention of the testator, was, doubtless, to make the same disposition of the personal as of the real estate; but, in the events that had occurred, the law made a different disposition of the personal from that which it made of the real. The construction and effect of the will was the same as to both subjects, with this difference, that the executory limitation was a contingent remainder as to the real, but as to the personal, an executory devise or bequest; a difference, in many cases, by no means verbal, but immaterial here. The course and manner in which the title of the personal estate passed from the testator to his two daughters, followed exactly the real. Upon the death of the testator, Mrs. Andrews and Mrs. Henderson, . took, each respectively, a several life estate in a several moiety of the personal subject; remainder, as to each moiety respectively, to the children of both, who should be living at the death of each; and they also took, as co-distributees of their father (and beneficiary owners of the interest, though it vested in his personal representatives), that possible residuary interest undisposed of by his will, which might eventually result *from the failure of the execu-tory bequest to take effect, as to both or either of the moieties. Upon the death of Mrs. Henderson, her son Thomas took, by virtue of the executory bequest in the will, an absolute vested estate in her moiety (which, upon his death, devolved, by the statute of distributions, to his father James Henderson) and a possibility, under the executory bequest of the other moiety, of taking that also at Mrs. Andrews’s death, depending on the contingency of his surviving her, and being the only grand child of the testator who should survive her. Mrs. Andrews still holding her life estate tn this remaining moiety, she and James Henderson (representing his deceased wife, being her sole distributee, and entitled to administration of her estate), became now tenants in common, each entitled to one half of the undisposed of possible interest in her moiety, which should result from the failure of the executory limitation to take effect as to it. In the event, the executory limitation did fail as to this moiety, by the death of Mrs. Andrews, without leaving any child of herself or her sister surviving her, to take under the limitation. And then James Henderson’s right to one half of this moiety, which before her death was a mere possibility, became absolute in his representatives, and her right to the other half of it, became likewise absolute in her representatives. Thus it was, that Henderson’s representatives, claiming by distribution from his son, one moiety of the personal estate in question, and by distribution from his wife, one moiety of the other moiety, became entitled to three fourths of the personal subject in question ; and Mrs. Andrews’s legatee, the appellee, had the right to the remaining fourth.
    They concluded, that the decree of the court of chancery was perfectly correct, in respect both to the real and personal subject.
    
      
       Tbe testator was an eminent lawyer and judge. At the first organization of the high court of chancery of Virginia, that court consisted of three judges: Edmund Pendleton, George Wythe, and this gentleman, Mr. Blair, were the three chancellors. After the adoption of the present constitution of the U. States, Mr. Blair was appointed by president Washington, an associate justice of the supreme court of the U. States; which office he resigned a few years before his death. He was a man of learning, and most exemplary virtue. He died at a very advanced age. His will was written by himself the year before his death. — Note in Original Edition.
    
   PER CURIAM.

The decree is approved, and affirmed in omnibus.  