
    
      Whitemarsh B. Seabrook, Administrator, vs. Elizabeth Mikell, Wm. M. Murray and others.
    
    Devise to two sons for life, with remainder to their issue, and, “in case my surviving son shall depart this life” without issue, remainder over. These words, by necessary implication, create cross remainders between the sons; as much so as if it had been “ in case both my sons” &c.
    And, although there was an express limitation to the survivor, if either of the sons should die under age, without issue; which would appear to preclude such a limitation if he should come of age and then die without issue; yet, it seems, the implication was not the less necessary in that case.
    Devise to two sons for life, as tenants in common, the share of each in remainder to his issue, “ but in case either of said sons should depart this life under age, without leaving any child or children living at his death.” Held, that the testator meant “ under age.or without,” Sec., and on the death of one, without issue, after coming of age, the limitation to the sutvivor was effectual.
    Heard before Ch. Harper, January, 1839.
    This was a bill of Interpleader, filed by the complainant, Whitemarsh B. Seabrook, executor of the last will and testament of Joseph James Murray, deceased, and administrator of James Joseph Murray, against the heirs and devisees of the testator.
    Joseph James Murray, who died on the 18th July, 1818, by his last will disposed as follows:
    “I give and devise unto my two sons, James Joseph Murray, and Wm. Meggett Murray, during their natural lives, as tenants in common, all that my plantation, or tract of land, on Fenwick’s Island, in the parish of St. Bartholomew’s, in the state aforesaid, containing about 1200 acres of high land, and about 3692 acres of marsh land, to be equally divided between them, share and share alike, on their severally arriving at the age of twenty-one years, or day of their marriage, which shall first happen ; and should either of my said sons depart this life, leaving any child or children, grand-child or grand-children, lawfully begotten, living at his death, then I give and devise the part, share, or proportion of the one so dying, to such child or children, grand child or grand-children, his, her, or their heirs and assigns forever, if more than one, as tenants in common, such grand-children standing in their parents’ stead, and taking between them only their parents’ share. But in case either of said sons should depart this life under age, without leaving any child or children, grand-child or grandchildren, lawfully begotten, living at his death, then I give and devise his moiety of the said land unto my surviving son, during his natural life, and after his death, in case he should leave any child or children, grand-child, or grand-children, lawfully begotten, living at his death, then I give and devise the said moiety of the said land, to such child or children', grandchild or grand-children, his, her, Or their assigns forever, if more than one, as tenants in common, such grand-child or grand-children standing in their parents’ stead, and taking between them only their parents’ share ; and in case my surviving son should depart this life, leaving no child or children, grand child or grand-children, lawfully begotten, living at his death, then, and in that case, I give and devise my said plantation or tract of land, to such of my daughters, and the child or children, grand-child or grand-children, of a deceased daughter or daughters, as may be living at the death of my said surviving son, in manner and form following, that is to say: To a surviving daughter or daughters, during their respective natural lives as tenants in common; and after their respective deaths, in case any of my said surviving daughters should leave any child or children, grand-child or grand-children, living at her death, then to such child ór children, grandchild or grand-children, his, her, or their heirs or assigns forever, as tenants in common; such grand-children standing in their parents’ stead, and taking between them only their parents’ share; and to the child or children, grand-child or grand-children, of a deceased daughter or daughters, his, her, or their heirs or assigns forever, if mote than' one, as tenants in common, such grand-children standing in their parents stead, and taking between them only their parents’ share.
    “ Item. I give and bequeath all the stock of cattle, owned and possessed by me, or which shall be on Fenwick’s Island aforesaid, at the time of my death, unto my said two sons, James Joseph Murray, and Wm. Meggett Murray, when they shall arrive at the age of 21 years, or day of marriage, which shall first happen, their executors, administrators, or assigns, in trust to and for the joint use, benefit and behalf of my said beloved wife, Martha Mary Murray, and her family, during her natural life, should she so long remain my widow; but should she at any time hereafter marry, or from and immediately after her death, then I give and bequeath the said stock to my two sons, James Joseph Murray and William Meggett Murray, their executors, administrators, or assigns, to be equally divided between them, share and share alike; excepting in the event of either of my said two sons departing this life, leaving no child or children, grand-child or grand-children, lawfully begotten, living at his death, in which case, I give and bequeath the whole of my said stock to my surviving son, his executors, administrators, or assigns.
    “ Item. I give, devise, and bequeath unto my said beloved wife, Martha Mary Murray, and unto my said eight children, herein before named, all the rest, residue, and remainder of all other property, either real or personal, which now, or at any time hereafter, I have or may be possessed of, during their respective natural lives, as tenants in common: and after the death of my said wife, I give, devise, and bequeath the part, share, or proportion of the said rest and residue of my estate, which she shall derive under this my last will and testament, fo such of my children or grand-children, as may be living at her death, in manner and form following, that is to say, to my children during their respective natural lives, as tenants in common, and after their respective deaths, to their children, their heirs, and assigns forever, as tenants in common; and to my grand-children, living at her death, their heirs and assigns forever, if more than one, as tenants in common, such grandchildren standing in their parents’ stead, and taking between them only their parents’ share; and after the death of any of my said children, the share or proportion of the said rest, residue, and remainder of my estate;, shall go to the child or children, grand-child or grand-children, of such deceased child or children, as may be living at his, her, or their death, to them and their heirs forever, as tenants in common, such grand-clnldren standing in their parents’ stead, and taking between them only their parents’ share; and in case any of my said grand-children should depart this life, leaving no child or children, grand-child or grand-children, living at his, her, or their death, then the share or proportion of the said rest, residue, and remainder of my estate, which such child shall derive under this will, shall go to my surviving children, and the child or children of a deceased child, as representing their parents, to them and their heirs forever, as tenants in common.
    “ And lastly. I hereby nominate and appoint my worthy friends, Wm. Crosskeys Meggett, Benjamin Seabrook, and Whitemarsh Benjamin Seabrook, Esqs., of Edisto Island, and my son James Joseph Murray, executors of this my last will and testament.”
    The bill further set forth, “that the said testator left surviving him, his daughters, Elizabeth Crosskeys Mikell, the wife of Josiah Mikell, Martha Mary Murray, Abigail J. Murray, Susan Murray, and Margaret Murray, and his said two sons, James Joseph Murray and William Meggett Murray: that your orator and the said Wm. Crosskeys Meggett, qualified as executors of the said will, and administered the estate of their said testator, in pursuance thereof; that the said plantation on Fenwick’s Island, devised, as aforesaid, to his said two sons, J. J. Murray and Win. M. Murray, was divided between them, and the share of each delivered to him ; and the said stock of cattle, was also divided between, and delivered to them, the said J. J. Murray and William M. Murray. That since the death of the said testator, the said Josiah Mikell has departed this life. That the said Martha Mary Murray intermarried with John Hanahan, and died intestate, leaving surviving her, the said John Hannahan, Martha Mary Hanahan, Abigail Hanahan, and Susan Hanahan. That the said Abigail J. Murray intermarried with Wm. M. Clark, and died intestate, leaving surviving, her husband, the said Wm. M. Clark, and their daughter, Martha Mary Murray Clark; and the said Wm. M. Clark has since also died, leaving surviving him, his said daughter, Martha Mary Murray Clark, and two children by a second marriage, — James Joseph Clark, and Elizabeth Jenkins Clark, and a widow, Elizabeth Mary, (who •hag since intermarried with the said John Hanahan,) and leaving a last will and testament, whereby, after several specific devises and bequests, he devised and bequeathed the residue of his estate to his said widow and children. The said Margaret Murray intermarried with John Seabrook, and died •intestate, leaving surviving her, the said John Seabrook, her husband, and five children, namely, — Josephine Seabrook, Whitemarsh Seabrook, Joseph Dill Seabrook, Wm. James Seabrook, and Ephraim Mikell Seabrook, and the said Susan Murray has intermarried with James Meggett. And your prator further shews, that the said James Joseph Murray, and bis wife and children, were on board of the Steam Packet Pulaski, when she was lost at sea, on the night of the 14th of June, 1838, and all perished on that mournful occasion: — that ..the said J. J. Murray died intestate, leaving surviving him, his ,sisters, the said E. Crosskeys Mikell, and Susan Meggett, (the .wife of James Meggett,) his brother, the said Wm. M. Murray, the said John James Hanahan, Martha Mary Hanahan, Abigail Hanahan, and Susan Hanahan, the children of his deceased sister, Martha Mary, the said Martha Mary Clark, the' only child of his deceased sister, Abigail J., and the said Josephine Seabrook, Whitemarsh Seabrook, Joseph Dill Sea-brook, Wm. James Seabrook, and Ephraim M. Seabrook, the children of his deceased sister, Margaret; all the children of his deceased sisters being infants under the age of twenty-one years. And your orator further shews, that at the instance of the next kin of the said J. J. Murray, he took out letters of administration of his estate and effects, and has taken possession of the same; that as the slaves of the said intestate were, at the time of his death, and when your orator took out letters of administration as aforesaid, actually employed in cultivating the plantation on Fenwick’s Island, devised to him by his father as aforesaid, your orator, in order to carry on the necessary business of the said estate, and to continue the cultivation and gathering in of the crop then on the ground, entered into possession of the said plantation, and still holds the same; and that he has also in his possession, as part of the estate of the said intestate, the stock of cattle, bequeathed to him by his father, as aforesaid.
    “And your orator further shews, that since the death of the said intestate, various and conflicting claims, as to the said plantation and the said stock of cattle, are setup and advanced by and amongst his surviving brothers and sisters, and the said children of his deceased sisters, and others claiming through them. The said Wm. M. Murray claims and pretends that the said J. J. Murry having left no child or grand-child, living at his death, he, the said Wm. M., is entitled to the said plantation, on Fenwick’s Island, under the limitations of the will of his father, above recited. On the other hand, the surviving sisters of the said intestate, and the children and other representatives of his deceased sisters, insist that the said Wm. M. Murray is not exclusively entitled to the said plantation, because it was devised by the said will to the said Wm. M. Murray, surviving the said J. J. Murray, in case the said J. J. Murray should die under age and leave no child or grandchild, living at his death; and though the said J. J. Murray may have left no child or grand-child, living at his death, yet he did not die under age. And the said surviving sisters of the said J. J. Murray further insist, that as the said plantation was devised to him for life only, and none of the contingencies, on which the reversion of the same was devised after his death, have happened, the said reversion is part of the rest and residue of the said tastator’s estate, and that all his surviving children, and the children of his deceased children, are entitled to the same, under the residuary clause of his said will. Again, the said John Hanahan, for himself and his said children, who are infants under the age of twenty-one years, and in right of his wife, the said Elizabeth Mary, and also in behalf of his said two children, James Joseph Clark and Elizabeth Jenkins Clark, who are all infants under the age of twenty-one years, insist that the reversion of the said plantation does not pass under the residuary clause of the said will, but that the said testator died intestate as to the said reversion, and that the same vested, in all his children surviving him, a fee simple; and that at the death of the said Martha Murray, who intermarried with the said John Hanahan, and died intestate, as aforesaid, he, the said John Hanahan, and her said children, became entitled to her share of the said reversion ; and at the death of the said Abigail J., who intermarried with Wm. M. Clark and died intestate, as aforesaid, the said Wm. M. Clark became entitled to one-third part of her share of the said reversion, which, at his death, passed, under the residuary clause of his will, to his widow, the said Elizabeth Mary, now the wife of the said John Hanahan, and his children, the said James Joseph Clark, and Elizabeth Jenkins Clark; and that the said John Seabrook, in like manner, claims that he is entitled to a share of the said plantation* as one of the heirs at law of his said deceased wife Margaret. And as to the said stock of cattle, the said Wm. M. Murray claims that he is entitled to the same, under the bequest thereof of his father’s will, in case either'of his sons should die and leave no child or grand child, living at his death, to his surviving son ; but the said surviving sisters and children of the deceased sisters of your orator’s said intestate, insist that the said Wm. M. Murray is not entitled to the said cattle, under the will of his father, and contend that it is the true intent and meaning of the said will, that the said Wm. M. Murray, surviving the said J. J. J. Murray, should take the same only in case the said J. J. Murray should die during the life and widowhood of the testator’s wife, and leave no child or grand-child, living at his death; and the testator’s wife having died before the death of the said J. J. Murray, and even before the death of the said testator himself, the said cattle belonged absolutely to the said J. J. Murray, not subject to any contingency, and is distribu'-table with the rest of his estate, among his surviving brothers and sisters, and the children of his deceased sisters.”
    The following decree was made by his Hon. Ch. Harper j
    The copy of the bill furnished me, as a brief in this case-, contains a full and accurate statement of all the facts, the se»-veral claims, and the points of law, which are made. All the statements are admitted by the answers. I therefore adopt it for the purposes of this decree.
    The only question necessary to be considered is, whether, by the testator’s devise of his plantation to his two sons for life, with further limitations, cross remainders are created between them. If the devise had been to the two sons for life, with remainder to their issue, and if both should die without having issue, then over, there is no doubt but that this would constitute the very case in which cross remainders are created by necessary implication, as I have said in the case of Bald-rich vs. White, (2 Bail. 445.) “If property were given to two for life, and at their deaths to their children, and if both should die without leaving children, then over, here would be cross remainders by necessary implication, nothing being given to the remainder over, until the death of both without children. So it might be, if the word “ both” were omitted, on the apparent intention to give over the whole property together, as one estate, which could not be effected till both were dead without children, and not to limit over their respective shares.”
    There is no doubt but that the testator’s limitation over, in the event that his surviving son shall dié without issue, is equivalent to a limitation in the event that both shall die without issue. It means of course, the surviving son who shall have taken the entire estate, by the previous limitation. It is not to be supposed that, if one son had died, leaving issue, and the survivor had then died, leaving no issue, the estate of the issue by the deceased son was to be divested and to go over.
    In the elder cases, which are generally collected by Sergeant Williams, in his note to 1 Saund. 185, A. N. 6; it is said that the leaning of the court is against the raising of cross remainders: — that they will not be implied if, in the case of estates tail, the limitation is to the issue of the devi-sees respectively, and for want of such issue over, and that there shall be no such implication between more than two. But the more modern decisions, which may be regarded as the settled law, are that the court leans in favor of cross remainders, in order to effectuate the intention. The case of Wright vs. Holford, (Cowp. 31.) Phifard vs. Mansfield, (Cowp. 497.) Watson vs. Faxon, (2 Est. 36,) Atherton vs. Pye, (3 T. B. 710,) Doe exdem. Gorges vs. Webb, (1 Taunt 234,) and Lindsay vs; Harding, (L Russ. & Mylne, 636,) may be regarded as in point to the case of such a devise as I llave supposed. In Watson vs. Faxon, and the subsequent cases, it is settled thaRcross remainders will' be implied between more than two,- and although, in the casé of estates tail, the limitation be to the issue of the devisees respectively, upon the apparent intention to give over the whole as one estate, which cannot be till all the tenants are dead without issue. In Gorges vs. Webb, it is said by Mansfield, Ch. J. “It has been truly said, that the ancient doctrine on this subject has been broken in upon, but it is wonderful how it ever became established. The method to bring- the estate together, is to imply cross remainders.” But with respect to the general doctrine, I am not aware that there is any doubt.-
    The circumstance which is supposed to take this out of the general doctrine, is that there is án express limitation to the survivor, if either of the sons shall die under age and without issue, wdiich excludes the implication of such a limitation, if he shall come of age and then die leaving no issue. But is' the implication less necessary in this case, than if there had been no limitation at all as between the sons 1 The reason of the case to which I have referred, applies with as mu'ch force, in every respect; to this. The whole is given over as one estate, and nothing is given over till both shall be dead, having left uo issne. It is given over, too, to those who were the testator’s heirs at law, and comes up altogether to the case of the devise to the testator’s heir at law, after the death of his wife. Suppose the parties now claiming to take the moiety of the estate in Tee; the children of the deceased married daughters may die, and transmit their interests to those who are strangers to the testator’s blood, and if it should hereafter happen that the surviving brother shall die, leaving no issue, are these interests to be divested and go according to the disposition of the Will 1
    
    I do not, however, think it necessary to resort to implication at all, but that by a very fair construction, expres, cross remainders are limited, at whatever time of life the sons may die without issue. There can be no doubt here about the actual intention, and when that is clear, the court will often transpose or alter words in order to give it effect. For example, when there is a devise to one, and if he shall die under age or without issue; the court may change or into and, because it cannot be supposed the intention, that if the devisee should die under age leaving issue,, the issue should be left unprovided for. As little can it be supposed the intention of this testator, that bis estate should be distributed into fragments and parcels; before the period fixed for its ultimate distribution. Indeed, I suppose the draftsman of the will to have uáed the word and instead of or, from some apprehension of .the effects of the latter word, if the devisee should die under age leaving issue. But there is the very same reason — of effecting the intention — in the present case, for changing and into or. The case of Máberly vs. Strode, (3 Yes. 450,) was one in which the testator devised to his son, for life, with remainder to his children, but if he should die under age, and unmarried, then to nephews and neices. The son married after his father’s death, but afterwards died, never having had any issue. The Master of the Rolls said, that the common understanding of. the word “unmarried,” was never having been married; and that in order to effect the intention, “and” must be changed into “or” and he held the limitation over good. He said the word “andis often construed “or.”
    But the Case of Brow'nsivord vs.- Edwards, (2 Ves. 243,) seems to me to come fully up to the present. In that case, the devise was to John Brownsword, and the heirs of Ms body, if he should attain twenty-one, or have issue. But if she should die. under twenty-one, and without issue, then to his sister, with a limitation over to his own right of heirs, if she should die under age and without issue. John Brownsword attain-éd twenty-one, and afterwards died without issue, having devised his real and personal estate to his wife. Lord Hard-wick said, “ it would defeat the intention to restrict the contingency to his dying without issue under age.” Then, as to the latter words: "If the court is compelled to make the construction the plaintiff insists on, the court will do it But, however, in the construction of wills, the court has construed the words conformably to the intent of the testator as much as possible, ranging them in a different order, and transposing them, so as to comply therewith; there is no necessity to do either in this case, or to supply material words, but there is a plain natural construction upon the words, viz: If the ■said John shall happen to die before tioenty-one, and shall also happen to die without issue.” He makes it an executory devise, if he should die under twenty-one, and a remainder expectant in his estate tail, if he should afterwards die without issue. He says this construction could not be made if the devise were to him and his heirs, for in that case, the fee could not be cut down to an estate tail, by such contingent limitation. “ An estate tail is capable of a remainder, and it is natural to expect one after it. It is contrary to his intent to let an the remainder to the right heirs, to defeat all the intermediate limitations to his family. This is the intent of the testator, and well warranted by the words of the will.” So I should say in the present case. I have no doubt but that, in truth and in fact, by the words of the devise, the testator did mean, “If either shall happen to die under twenty-one, and also, if either shall happen to die without issue” — at whatever time of life, it shall go to the survivor; An estate for life is capable of a remainder, and it is natural to expect one after it. It is contrary to his intent, that this property should pass under the residuary clause of his will, or be distributed among his next of kin, under the statute, (which are the claims that are set up) to defeat all the intermediate limitations to his family. This is the intent of the testator, and well warranted by an easy construction of the words of the will.
    With respect to the cattle, as to which some question was made, there is no doubt but that there are express cross limitations.
    It is .ordered, adjudged and decreed, that upon the death of the intestate, James Joseph Murray, without issue, the land devised tp him by the will of his father, the testator, Joseph James Murray, (and also the stock of cattle bequeathed to him by the said will,) by the limitations of the said will, vested in the defendant, Wm. M. Murray. Complainant’s costs to be paid out of the estate. Defendants to pay their own costs.
    And from this decree, the defendants, with the exception ¡of Wm. M. Murray, appealed, on the grounds :
    That as the said James Joseph Murray did not die under age, and leaving no child or grand-child living at his death, but on the contrary, lived to attain the full age of twenty-one years, the contingency on which the estate devised to him was limited over, has not happened, and the whole vested ‘ absolutely in him, and is now distributable as his intestate .estate.
    Or .should the court be of opinion, that the said estate was .Revised to the said intestate for hfe only, then these defendants subipit, as is set forth in the bill of complaint, that none .of the contingencies, on which the estate was devised over after his .death, having happened, — the reversion of the said estate is part of the rest and residue of the testator’s estate, and is distributable according to the residuary clause of his will.
    Or should the court be of opinion, that the said estate did not vest absolutely in the said James Joseph Murray, and •.that, after his death, it does not pass under the residuary jClause of testator’s will, then these defendants submit, that the said testator died intestate of the reversion of the said estate, which reversion, on his death, vested in his heirs at law, and is distributable among them or their representatives.
    That the moiety of the cattle bequeathed, by the will of the testator, to the intestate, at his mother’s death, then vested absolutely in him, and is now distributable as apart of his estate.
    
      King, for the motion. Perroneau, Mazyck and Finley, contra.
   Curia, per

Johnson, Ch.

The Court concur in the judgment of the Circuit Court. The appeal is dismissed.

Johnston, Harper and Dunkin, Ch., concurred.  