
    *Edward H. Britton and Wife, and another, v. Francis Johnson, Executor of Wm. Johnson, Sen., and Wm. Johnson, Jun.
    Testator by^his will, made specific bequests to his grand-children, and lent the rest of his estate to his wife for life, and then directs viz.: — “ And at her decease I desire that my executor do advertise and sell, and equally divide all my estate between my children and or their heirs.” At the execution of his will, and at his death, testator had a wife, two sons, both of whom had children, and two granddaughters, children of a deceased son. On a bill filed by the grand-daughters (the children of the deceased son,) claiming under the residuary clause: Held, that the limitation over on the widow’s death was a vested interest, and could vest only in such persons as answered the description of “children” and “heirs” of children ; and none answering description of “heirs of children” but the plaintiffs, they took with the two sons, on the widow’s death, the sons one-third each, and the plaintiffs the remaining third between them. [*430]
    
      Where an executor, who was also a legatee purchased at his own sale, made under the order of the Ordinary, and appointed one agent to sell and another to buy; his purchases were set aside by Chancellor Johnston, on the general principle, that for the prevention of fraud, a trustee to sell shall not be permitted to buy at his own sale; and if he does, his purchases may be confirmed or set aside, at the option of the parties interested. [*434]
    This cause was heard before Chancellor Johnston, at Marion, Feb. 5, 1835.
    Chancellor Joiinston. This case was taken up yesterday, for the purpose of examining' two questions.
    1. Whether the plaintiffs take any, and if so, what interest, under the residuary clause of the will of Wm. Johnson, sen.
    2. Whether, if they take under that clause, they have a right to avoid the purchases made by Francis Johnson, the executor, at his own sale, as set forth in his answer.
    The first question is a very difficult one : and I could have wished the counsel had referred more liberally to authorities, and assisted the Court more than they did with the reflections which their own investigation of the case, no doubt, furnished their minds. Left as I am without this advantage, I scarcely hope to make such a decision as will prove satisfactory to the parties. Indeed, I entertain such doubts as induce me to request that the judgment I am about to pronounce, may be taken up and subjected to the review of the Supreme Court.
    On the third of October, 1823, the testator executed h^ will; at th'at time, his family consisted of the following members :—
    1. His wife Celia. 2. His son Francis, who had a child, Sami. W. Johnson. 3. His son William, jun., who had children ; and 4. Caroline M. and Frances R. Johnson, two children of James Johnson, another son, who had died in 1815.
    The will which he executed, is in the following words:—
    “ 1. I give and devise to my grandson, Samuel Wilds Johnson, at my decease, one negro girl, by the name of Minda; to him and his heirs forever.
    “2. I also give and bequeath to my son, Wm. Johnson’s children, at my decease, one negro girl by the name of Sarah; to them and their heirs forever.
    “ 3. I also give and bequeath to my two grand-daughters, Caroline M. Johnson, and Frances 'Rebecca Johnson, at my decease, one hundred dollars a piece, to be paid to them as soon as it can conveniently be raised; to them and their heirs forever.
    *“ 4. And after all my just debts and expenses be paid, I lend unto my wife, Celia, during her life, the free and undisturbed use <- of all my lands, plantation, houses, household and kitchen furniture, horses, stock of all kinds, cash in hand — in short, all and every part of my real and personal estate, that I may die possessed of; except what I have devised to my grandchildren already: and at her decease, I desire that my executor do advertise and sell, and equally divide all my estate, between my children and or their heirs.
    
    
      “ 5. And I do make, nominate, aud appoint my beloved son, Francis Johnson, sole executor, &c.”
    
      He died in 1825, leaving this will in full force — his family consisting of the same members as at the time he executed the will.
    His widow, to whom he had lent the bulk of his property for life, died in 1880.
    Edward H. Britton, having married Caroline M., one of the daughters of the testator’s son, James, now joins with her and the other daughter, Frances Rebecca Johnson, as plaintiffs in this suit, in claiming an interest under the fourth or residuary clause of this will; which claim the testator’s sons, William and Francis, who are defendants, resist.
    I have derived no assistance from the cases quoted, for the purpose of showing when the term “ children” includes grandchildren, and when it does not.
    There can be no pretence here, that the two children of James Johnson can fall within the description of “ children” of the testator. If they do not take under the description of “heirs of testator’s children,” they must be excluded. The cases quoted have therefore no application.
    It appears to me that this controversy turas upon the question — whether the limitation over, upon the death of the testator’s widow, constituted at his death a vested interest. And I think it did. The test of a vested interest is, that it is made to take effect upon no other condition than the possession’s becoming vacant by the cessation of title in the person to whom the prior enjoyment is bequeathed. Whoever has a right to step in whenever the prior incumbeut gives way, has a vested interest; whoever is so described by the testator as to be restrained from taking possession by no other condition than that it be vacated, has a vested right under the will.
    *4321 *A11 the rights of a testator pass out of him at his death; and -* such of them as he constitutes vested interests, must vest in such persons as at his death come under the description he in his will gives of his legatees.
    If the testator here had given to his children, and some of them had died between the making of his will and his death, their children would not have answered the description, and would not at common law and independently of the Act of Assembly, have come in. Bankhead v. Car-lisle, 1 Hill’s Oh. Rep. 351.
    If he had given to the “heirs” of his children, and all his children had been alive at his death, none of their children could have come in; because, as the children could not have “ heirs” until their deaths, there would have been no person, at the moment the will began to operate, to answer the description of the legatees.
    As the interest given in this case was a vested interest; as it was not to spring up upon a contingency; as its enjoyment was made to depend on no other condition, than the possession being vacated by the widow’s death, it must vest at the testator’s death, or never. And it could vest then only in such persons as were designated by the words of the will. It could vest in such persons only as were at the testator’s death his “children,” or “ heirs of his children.”
    William and Francis Johnson, at that time, answered to the description of “children;” the children of James Johnson answered to that-of-“heirs of children.” And in my opinion, these, among them, took upon the death of the widow.
    
      It is contended that the testator intended that William and Francis should take, if alive at their mother’s death, but that if either or both of them should die before that time, his or their “heirs” should take in lieu of their parents, and that these were the heirs meant by the testator.
    But-we are not to make the testator use unnecessary words ; nor hold any words which he has used to be unnecessary, merely to effectuate a supposed intention. M’Donald’s case, 2 Const. Rep. 94. This we should do, if we adopt the construction contended for. William and Francis would, as “children,” have taken a vested interest in the remainder in question : which would have been transmissible, and would have come to their “heirs,” in case of their dying before their mother. So that the “ heirs” needed not that the testator should take any notice of them. If we adopt the construction contended for, the provision for the heirs is mere surplusage.
    *If it be argued again, that the testator looked to the possibility that William and Francis, his children, who were alive when he L drew the will, might die before himself, and that in that case he wished their “heirs” to take their place, can anyone show, from his language, that this was his intent? In such cases as I have supposed, the “ heirs” of William and Francis, would have come in only as “heirs of children” Would not the children of James have answered to the same description ? Why then should they have been excluded, while the others were received. My opinion, then, is, that the plaintiffs take along with William and Francis under the clause in question. And I am somewhat confirmed in the opinion that this was the testator’s real intention, from expressions used in the three first clauses.
    In these clauses, the, testator gives specific legacies ; 1st, to the child of Francis ; 2d, to the children of William ; 3d, to those of James. So far, all the families of his children seem to have stood in equal favor with him. We should not on light grounds, after this, suppose that the testator intended to give the residuum of his estate to two families in exclusion of the third. And the words he uses, in giving to his grandchildren, by no means show that the specific legacies were intended to be all they 'should ever receive from his estate. He says they shall have these legacies “at his death leaving to them the right of receiving more at his wife’s.
    But another question is — what share do the children of James take with William and Francis ? The direction is, that the residue be equally divided between children and the heirs of children.
    
    At first I thought that the legatees must each take an equal share. That they should take per capita. But more reflection has inclined me to a different opinion, and one which I the more readily adopt, because it harmonizes better with that equality at which it appears, by putting together the three first clauses and the fourth, the testator aimed. I do not know well howto express the sense in which the phrase, “equally divided between my children, and or their heirs,’J strikes me. The best I can do, is to say 'that it appears to me the testator used the words “heirs of children,” as an equivalent for a child; that he rated them equally, and directed that the property should be divided equally, upon that principle. I cannot make this as plain as I wish. *1 cannot convey to others what I think I plainly perceive. And I shall not labor it. [*434
    
      The result is, that the residuum is to be divided into three parts; of which one is to go to the two children of James Johnson, (equally between them,) another to William, and the third to Francis.
    The second question is, whether the plaintiffs have a right to set aside the purchase of certain slaves made by Francis, the executor, at his own sale, 
    
    It appears, by his answer, he made the sale under an order of the Ordinary ; that he appointed one agent to sell, and another to buy for him. These circumstances he states, as reasons for confirming his purchases. But if the doctrine, that a trustee to sell cannot purchase, were at all questionable (which it is not), I should hold the circumstances relied on, as going very far to condemn the sale.
    Here is a trustee blinding the bidders by employing a by-bidder, and having such a control of the auctioneer’s hammer, that he can bring it down instantaneously, whenever he thinks fit. And shall such machinery sanctify what the law would otherwise condemn ?
    That such purchases are clearly illegal is too well settled to admit of doubt. I have expressed my opinion briefly in Wiggins’ ease, and in the ease of Crispin v. Taylor;
       in both of which the Court of Appeals concurred with me.
    
      *In the last-meutioncci case, the very question was decided which was made here. It was ruled that the circumstance of the L trustee being a co-cestui que trust, gives him no right to buy from himself. The ground taken for avoiding such sales is that fraud has been practiced, which cannot be proved. If a trustee to sell, can purchase, he may lock up in his own breast secret qualities of the article sold, which would, if *4361 c^sc^ose(^> greatly enhance its *price. The case of a gold mine J on land, unknown to all but the vendor, lias been frequently put. The qualities of slaves may be urged as another. There is no end to the arguments against such sales.
    Then, if fraud is the ground for avoiding such contracts, (if contracts they may be called, where there is but one contracting party,) how can *4311 ^le ven(^01',s having an interest alter the case ? What *is lost by J him as cestui que trust, is more than made up by his gains as purchaser. While others divide the loss with him, he has all the gains to himself. And, indeed, he cannot be said to sustain any loss, who defrauds himself. What he takes out of one pocket, he puts into another.
    The case of Taylor v. Crispin, settles another point. It is, that where such a sale is set aside, the trustee shall not account for the real value of the property ; but that shall be ascertained by a re-sale.
    I suppose that the plaintiffs, who ask to set the sale aside, cannot affect Wm. Johnson’s interests, who dioses to let it stand. Therefore he will be entitled to his share of what the executor purchased at — neither more nor less, let the property sell for what it may, at the re-sale ; for that the executor must account to him, with interest.
    As for the plaintiffs, they will be entitled to their share of the re-sale price, with hire of the negroes for the time the executor has had them.
    It is decreed that Francis Johnson deliver up to the Commissioner the negroes he purchased, with their increase ; and that the Commissioner do proceed to sell them, after giving thirty days notice. And that the said Francis do account for their hire.
    
      The re-sale of the negroes, to be made at Marion Court House, upon some convenient sale day, upon the following terms — to wit: upon a credit of one year from the day of sale, with interest from the said day of sale ; the purchasers giving bond with personal security to be approved by the Court, to secure the purchase-money.
    The defendants appealed, and now moved to reverse the decree on the following grounds :
    1. Because, according to the legal construction of the will of the testator, the plaintiffs have no legal claim, and their bill should have been dismissed.
    2. Because, according to the provisions of the said will, all the property now sought to be partitioned was given to the defendants.
    
      Graham and Gregg, for the appellants,
    contended that the intention of the testator is the controlling rule in th.e construction of wills ; but that intention must be ascertained and construed according* to the r^^oo established rules of law. Booth v. Blundell, 19 Yes. 521, 4 Kent’s <- Com. 519. Unless the intention is clearly expressed otherwise, the word “ heirs” must be construed technically, and be regarded a word of limitation, and not of purchase. Preston on Est. 365, 368 ; Thelusson v. Woodford, 4 Yes. 329; Holloway v. Holloway, 5 Yes. 401 ; Deane v. Test, 9 Yes. 152 ; Crooke v. De Yandes, 9 Yes. 205 ; Hodgson v. Ambrose, 1 Doug. 341; 1 Cox, 67.
    This will was drawn before the Act of 1824, when words of perpetuity were necessary ; and the word “ heirs” was used to convey the fee. Whatever inequality there may be in the disposition of his property, the Court cannot interfere to make a will for the testator; that was his privilege : and to allow the plaintiffs to come in, a vague and conjectural meaning must be affixed to the word “ heirs ;” or the Court must actually supply other words. Words cannot be supplied on conjecture, although probable, Chapman u Brown, 3 Burrows. Rep. 1634 : nor rejected on suspicion of mistake, Milne v. Slater, 8 Yes. 306. To authorize the Court to supply the words, the mistake must be plain and palpable. Horry v. Deas, 2 Eq. B.ep. 126; Jackson v. Sill, 11 John. 201; Mellish v. Mellish, 4 Yes. 45.
    In what character are the plaintiffs to take ? The devise is to his “children.” He had at the execution of his will, and at his death, but two, the defendants : it must be that he meant them. The word “children” will not include grandchildren in a devise, unless there can be no other construction. Reeves v. Bry’mer, 4 Yes. 693 ; Radcliff v. Buckley, 10 Yes. 195 ; Crook v. Brooking, 2 Yern. 107 ; Orford v. Churchill, 3 Yes. & Beatnes, 69.
    The word “ between” is used in this clause. It is not in strictness synonymous with among. Between relates to two, among to more than two. And this distinction is observed in our statute of distributions; and is applied in the construction of wills in many eases — 2 Kent’s Com. 337, note ; 1 Bro. Ch. 117 ; 1 Cox, 234.
    To read the clause in question as it stands, “and or their heirs,” it is nonsense. Strike out the word ‘ or’ and the meaning is intelligible — an absolute fee is given to the defendants. Strike out ‘ and,’ and the devise is to his children, or to persons unknown. The Court may suppose an omission — will it supply it ? With whose names ? Nothing- can benefit the plaintiffs but the addition of a clause to the will, in which their names are to be inserted ; and then change ‘ or’ into ‘ and’.
    *The word “their” in the clause, has a grammatical reference -* to “children.” Why should the word “heirs” be changed from its technical meaning, and made a word of purchase to include these plaintiffs ? There is nothing in the will to authorize it. The testator had already provided for them, and in doing so, he carefully, and it would seem in contradistinction to children, used the words “ grandchildren.” If the Court resort to,conjecture for the testator’s meaning-, why should it not as well be supposed that he gave the property to his sons then living, and in the event of the death of either before his death, that in such ease their children should take ? Or if the word “heirs” is to be construed a word of purchase, why should its remeaning be restricted to the children of James ? "Why not embrace all his grandchildren ?— But to enable the plaintiffs Jo take, the technical meaning of the word must not only be changed without any such reasons drawn from the will as should justify it, but its meaning- must be referred exclusively to these plaintiffs. In effect, making a will.
    
      Wilkins, contra.
    Argued, that unless the construction of the Chancellor prevails, there is such uncertainty and repugnance in the clause in question as to render it void; and the plaintiffs would then be entitled. Wherever there is great uncertainty the heir is to be preferred in England. — Pow. on Dev. 611; Cowp 99; 6 Cruises, Dig. 113. And the same rule must apply here where all the children are heirs. And the strong inclination of our Courts in all cases of doubt and uncertainty is to give such construction as will let in all the testator’s heirs. — Myers v. Myers, 2 M’C. Ch. 251 ; 2 Binney, 19, 20.
    Some meaning and effect should, if practicable, be given to all the words of the testator.. — 1 Co. Lit. 9 ¿, 2 Vern. 545 ; 3 Eng-. Con. Ch. Rep. 513, Butter v. Ommany. This can only be done by the interpretation put on the will by the Chancellor ; for to make the word “ heirs ” a word of limitation merely, as designating the quantity of interest given to his sons, would be to discard a part of the will. It is not a direct devise to his children and their heirs; but a direction that his estate be sold and equally divided between his children and their heirs. Now this was impracticable, regarding the word “heirs” as a word of limitation, conveying the fee to the sons. Some other meaning then must be intended, in order to give effect to the will. Discarding the word “ or ” *4401 *as inserted by mistake, and the estate is equally divided between, -* or among, (for the terms are used synonymously) his children and the heirs of his children. Who answers the description of heirs of children? Not the children of Francis and William — nemo est hcures viventis His son, James, was dead, and left two children. They are the only persons answering to the description of heirs of children ; and consequently they must take jointly with the sons, in order fully to carry out the testator’s intention as expressed in his will. And this construction is much strengthened by the fact that the children of his son, James, are but slightly provided for in the other clauses, and he evinces a disposition to put them on the same footing as his children. But apart from this view of the case, he insisted that the plaintiffs might well take under the general word “children.” Cited Horry v. Deas, 2 Eq. Rep. 123 note; Wyth v. Blackman, 1 Yes. sen. 196; Deveaux v. Barnwell, 1 Eq. Rep. 491; Roe v. Quartley, 1 T. R. 634; Radcliffea. Buckley, 10 Yes. 195 ; Goodtitle v. Herring, 1 East 264; Keith v. Perry, 1 Eq. Rep. 353.
    
      
      
         It will be observed that this part of the decree was not appealed from ; and further, that the decree itself was pronounced before the decision of the Court of Appeals in Stallings and wife vs. Foreman, ante 401. R.
    
    
      
       James R. Crispin vs. John Taylor.
      Purchase by an administrator, (who was also a distributee,) at his own sale, at a price less than the appointment, set aside by Chancellor Johnston, on the ground that a trustee to sell cannot purchase at his own sale, and the administrator ordered to account for the difference between his bid and the real value. Decree confirmed by Appeal Court, as to setting aside the sale, but modified by ordering a re-sale of the property. [*485]
      Practice on sales by executors and administrators being set aside, is to order a re sale of the property, and if more be bid than was bid before, that it go to the highest bidder ; if not, the first sale is affirmed [*430]
      The bill was filed against the defendant, as administrator of the estate of Anne Sibley; and seeks, amongst other things, to set aside the purchases of the defendant at the administration sale made under an order of the Ordinary, of a female slave named Sarah, and some other articles of small value, at an inadequate price. The slave had been appraised at one hundred dollars, and was purchased by the defendant at fifty dollars. There was no evidence of unfairness, in procuring or managing the sale; on the contrary, it appeared that the sale was fairly conducted. The defendant was a distributee; and in his answer states, that the plaintiff was present at the sale, and made no objection. It appeared also that the solvency of the defendant was doubtful; but the evidence on this point was applied exclusively to another ground for relief, and is not adverted to, either by the Chancellor or the Court of Appeals, as having any bearing on the sale.
      The cause came on before Chancellor JoiiNsrou, at Newberry, July 1833, and in relation to the sale, he made the following decree:
      With respect to so much-of the bill as seeks to set aside Taylor’s purchases at his own administration sale, although very contemptible, and evidently thrown in to help out the other parts of the bill, in case of need, I see not how, on principle, it can be dismissed. I consider the law as settled on the point; and not to be mistaken. No trustee to sell, can become a purchaser: and, if he does, he will be held to hit purchases, or they will be set aside, as of course, at the option of parties interested in the property. They are not bound to show unfairness in the sale. The rule is one of policy, made to avoid abuse, which it may not be in the power of the cestui que trust to prove. Nor does it. alter the case that the trustee is one of the cestui que trusts, and, therefore, interested in the property. One who is at the same time trustee, and one of several cestui que trusts, may bo benefitted, but cannot be injured, by an unfair purchase. The temptation to abuse, although less than when he is trustee merely, nevertheless exists ; and the reason of the rule remaining, the rule remains in full force also.
      The right to set aside such purchases, is a mere equity, and may be waived. I have but little doubt the plaintiff was present at the sale and acquiesced in it; and if that had been proved, it would have been worthy of consideration, whether it did not amount to a waiver, But there was no such proof, the answer is no evidence on this point.
      It does not appear whether the sale was confirmed by the Court of Ordinary which ordered it. If it had been, (a practice which might be adopted with much advantage, all the parties being summoned,) it would be worth while to consider whether the sale would not be good, as res judicata. But no such matter came out in proof. Again, the ground for avoiding such purchases is fraud. If the Act of Limitations had been pleaded, and the knowledge of the purchases brought home to the plaintiff, more than four years before filing the bill, it might have been a question whether the equity to set aside the purchase in question was not barred. But there was no such defence. I throw out these questions, in order to draw the attention of the bar to them in future cases; for purchases by executors and administrators are of daily occurrence, and all the questions affecting them are of the last importance, not only to such officers, but to all the widows and orphans within this jurisdiction, and I believe none of these questions have ever yet been raised in our Courts.
      'I made some remarks touching them, in Lowery & Lowery, from Sumpter, but the case went off on other grounds as well as I recollect. It has not been reported.
      There is a question as to the proper practice, on setting aside such sales. Shall a resale be ordered, or shall the trustee account for the value of the property ?
      In my opinion, that depends on the number of applicants for setting the sale aside. If all the cestui que trusts apply, then a resale ought to be ordered. If, however, only part of them make such application, an account should be taken. It will be taken for granted, that those who do not complain are satisfied, and affirm the sale. In this case, none of the distributees complain, except the plaintiff. An account will therefore be ordered.
      Decreed — That the purchases by the defendant at the sale made by him as administrator of Anne Sibley, so far as they are enumerated in the bill, be so far set aside that the defendant be held accountable for the articles of property so purchased by him, at their true value.
      And that all matters of account growing out of, or connected with the pleadings, be referred to the Commissioner to report thereon, with leave to report any special matter.
      The Commissioner, at the same Term, reported — That the plaintiff was present at the sale, and made.no objection to defendant’s purchase, which was fair; that inasmuch as the Chancellor in his decree had said, that if the plaintiff was present at the sale, it might make a different case ; and as the plaintiff’s share of the difference between the real value of the property sold, and the true value is very inconsiderable, (but twelve dollars, sixty-two and one-half cents,) and as he was as much in fault as the defendant, the Commissioner recommends that the defendant be not allowed the excess beyond the real value proved.
      On the report coming before the Chancellor, he ordered the Commissioner11 to add the distributive share of James R. Crispin and wife, of the excess of value of the property proved on the reference over the bids of John Taylor, to the amount reported in their favor,” and for which purpose the report was re-committed, and being amended accordingly, was confirmed.
      The defendant appealed on the following, grounds:
      1. Because the Chancellor erred in setting aside the sale, at the instance of the plaintiff, who was present at the sale, and not objecting thereto, especially after a lapse of four years
      2. Because the Chancellor, after setting aside the sale, erred in decreeing that defendant should account for the difference between the sale and the value of the property as proved, but should have ordered a resale at defendant’s risk.
      
        Caldwell Fair, for appellant.
      Harper, .1. We concur in the principle announced by the Chancellor, that the defendant’s purchase of the negro woman was liable to be set aside at the option of the parties interested. It does not appear to me that the plaintiff's barely being present at the sale, could be construed into an acquiescence. I do not know by what rule he was then called upon to express his dissent. I refer to the case Ex parte Wiggins, (a) decided at the present sitting; for my views on the subject. The Chancellor was correct in determining that the defendant could not hold his purchase. But, in strictness, the course is, not that the executor should account for the difference between his bid and the appraised value, (for the appraisement is but prima facie evidence of value,) but, that the property should be re-sold. Any creditor or distributee lias a right to require a re-sale. It is to be regretted that so trifling an interest should occasion this protracted litigation , but defendant may stand upon his right He must, however, pay the costs of the appeal and re-sale.
      It is ordered, that the slave in question be exposed to sale by the Commissioner on some public sale day, on the same terms that she was before offered to sale by the defendant; and that if more money shall be bid for her than was before bid by the defendant, she be sold to the highest bidder; otherwise defendant’s purchase to be affirmed.
      Johnson, J. & O’Neale, J., concurred.
      
        (a) 1 1-Iill, Ch. 353.
    
   Chancellor Johnston

delivered the opinion of the Court.

This Court concurs with the Chancellor who delivered the Circuit decree ; the motion is therefore dismissed.

Chancellors Johnson and Harper, and Richardson, concurred. Gantt, and

Butler, J., dissenting.

the Court I cannot su' :y opposed [id technical in this case. I think the construction to the actual intention of the testator, ah] meaning of the language he uses.

In the three first clauses of the will, th^esbato^giM&J^ his grandchildren, all that he intended specifically rasadb^^T^^in the fourth clause, it seems to have been his design to give the residue of his property to his-wife and children. That is, after-the determination of the life estate to his wife, to divide the remainder between his children, Eraucis and William, share and share alike. He uses language sufficiently significant to convey his meaning. After his wife’s death, the testator directs his executor to sell and divide the estate between his children “ and or their heirs. ” What children did he mean ? Did he mean his children *alive at the time, or did he have reference to a deceased child ? Or did he include in the word “ children ” his L grandchildren, whom he had specially called, in the clause above, his grandchildren. He obviously meant his surviving children. To whom then should the adjective pronoun their have reference ? By every rule of grammar, it relates to and includes only his children ; and of consequence then it is to his children and their heirs, that he gives the remainder of his property. To read the clause in this way, is to give to the word heirs its ordinary legal signification, to make it a word of limitation and not of purchase. I do not say that it may not be a word of purchase. The -intention to make it a word of purchase should be very obvious, and the persons to take by it should be clearly indicated, before the legal construction of it should be violated. If the testator, in the ease under consideration, intended to refer specifically to any persons to take by the word “ heirs,” it was the children alone of his surviving children. That is, in the event of either’s death, their children to come in and represent the parent. But I am averse to considering contingencies until they happen. If either William or Francis had died before their father, it is probable the father would have altered his will in conformity to that circumstance. To make the word “heirs” refer exclusively to James’ children, is not only to change its meaning, but to give its reference ; and in effect, it is. to add a clause to the will. It is asked, why should the testator make such a difference between his surviving children, and the representatives of his son, James? I canunly answer, that as far as the testator was explicit, he certainly made a discrimination between Ms grandchildren. To one grandchild he gives a negro; to William’s children he gives another negro, and to James’ two children he givbs $100 each. Whether this was the result of caprice or justice, I will not inquire. It may have been, and probably was the latter. This depends upon the advancements which the testator may have made, and many other circumstances of which we can take no notice. I am not for going out of my way in any effort (perhaps vain and futile) to do imaginary justice. I like that justice which is prescribed by legal definition and usage. This gives the security of rule; the other opens the door to the uncertainty of discretion. The Court makes the word heirs refer exclusively to James Johnson’s children, and I make it refer exclusively *4421 to ^representatives of Francis and William, whoever they -I might be ; (that is, if William and Francis had not alienated the property before their death,) and this regards the word as a word of limitation indicative of the quantity of estate given. But if it should be regarded as a word of purchase, I think Francis’ and William’s children would take by it in preference to James’. I am for letting the fourth clause read as though the word or was not in it; and if the word or is to have any meaning, it cannot make the word heirs refer exclusively to, the daughters of James, and let them come in and take an equal share with Francis and William. The pecuniary legacy given to them by their grandfather, was all that he intended specifically for them.

Evans, J., also dissented, but gave no reasons.

Earle, J., absent.  