
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Sarah Hamilton v. Daniel Boyles.
    qqie testator devised his real estate to his daughter, “ to her, her heirs, and assigns, foreverbut if she died before the age of twenty one, or marriage, in the life time of testator’s wife, then to the wife, “to her, her heirs, and assigns, forever.” He also bequeathed certain personal estate to his said daughter, “to her, and her heirs, forever.” He then bequeathed the residue of his personal estate to his said wife and daughter, “ to be equally divided between them, share and share alike, by two indifferent persons to be chosen by the executors, to them, the said wife and daughter, their, and each of their, heirs forever:” after which the will contained the following clauses. “ And in case of the death of either of them, then my will and desire is, that the survivor shall enjoy the whole, to them, and their heirs, forever. But in case of the death of both my said wife and daughter, then I give my estate, real and personal, abovementioned, to my brothers, James, &c., to them, and each and every of their heirs, and assigns, forever, to be equally divided, &c.” field, that the words “without issue” could not be supplied after the words “ death of either of them,” and “ death of both my said wife and daughter;” and that the limitations to the “ survivor,” and to the “ brothers” of the testator, were provisions against a lapse, and must be confined, in point of time, to the death of the testator.
    Where there is an indefinite limitation to “survivors” after a devise of a tenancy in common, the survivorship will be referred to the death of the testator, and the limitation regarded as intended to prevent a lapse.
    In the construction of wills, the courts are not authorized to supply words in order to satisfy a conjectural intent.
    This was an action of detinue, to recover two negroes, and was tried in Charleston. A special verdict was fouud, whiph states, that Robert Baron, of St. Bartholomew’s parish, by his last will and testament in March, 1704, devised, among other things, as follows : “ I give and devise unto my daughter, Jean Baron, my plantation on Island Creek, &c, fo her, her heirs, and assigns, forever. But my will and desire is, that my loving wife, Sarah, have and enjoy the use thereof, together with my said daughter, for and until she shall arrive to the age of twenty one years, or day of marriage, which shall first happen ; and in case of the death of my said daughter, Jean Baron, before she arrives to the age of twenty one years, or day of marriage, if the same shall happen in the life time of my said wife, then, and in that case, I give and devise the said plantation unto my said wife, Sarah, to her, her heirs, and assigns, forever. And whereas, Sir Thomas Gordon,-admiral of Great Russia, by his last will, &c. did therein, among other things, give and bequeath the interest oí a certain sum of money to his daughter, Jean, for and during her natural life, and after her decease,_ then the principal to be equally divided between his daughter’s children, Christian, and Elizabeth ; which said Christian, now deceased, was the former wife of me, the said Robert Baron, and mother of my said daughter, Jean ; l give and bequeath unto my said daughter Jean, all such share, &c. to her, and her heirs, forever. Item : I give and bequeath all and singular the'rest, residue, and remainder, of my personal estate, of what nature or kind soever, unto my lovtng wife, Sarah, and daughter, Jean, to be equally divided between them, share and share alike, by two indifferent men, to be chosen by my executors for that purpose, to them, my said wife, Sarah, and daughter, Jean, their, and each of their heirs, forever. And in case of the death of either of them, then my w ill and desire is, that the survivor shall enjoy the whole, to them and their heirs forever. But in case of the death of both mv said wife and daughter, then I give my estate, real and personal, abovementioned, to my brothers, James, &c. to them, and each and every of their heirs, and assigns, forever, to be equally di. vided,” &c. That the will then goes on to empower his executors to dispose of any part of his estate for the benefit of the legatees, &o. by putting out the money to use, or purchasing slaves, &c. according to their direction. The special verdict further states, that the testator left his said wife one of his executors, and that she Survived him. That his said daughter also survived him. That the negroes in question were of the estate of the testator at his death, and were alloited, upon a division of the estate under the will, to bis said daughter. That in 1771 or 1772, the said Jean married Joseph tilann. That during the marriage the said negroes were levied on, and sold uod<*r. execution as the property of Joseph Slann ; but whether the absolute property, oi only an estate for life, was then disposed of, the jury cannot ascertain. That Joseph Slan-.i afterwards died ; aim his wife, Jean, aftev his decease, purchased the said negroes from the vendee of the sheriff. That the said Jeai in her life time seem -d to admit, that in case of her death without issue, the plaintiff, who claims under the testa, tor’s brother James, would be mlitled to the negroes. That she intermarried with the defendant in 1800, and died in 1801, without leaving issue of her body at her death, if the court should ■be of opinion that the plaintiff ought to recover, then the jury find that the defendant detains the said negroes, of the value, &c. each,' and assess damages for the detention thereof, &c. and costs: but the court should be of opinion that the plaintiff is not infilled to the said negroes, then the iuty find for the defendant, with ci Sts „ . of suit.
    The case was argued by Ckeves, for the plaintiff, and Pringle,' and Desaussuru, for the defendant.
    The following authorities were cited : Stringer v Philips, 1 Eq. Ca. Abr. 293. Bindon v.&uffolls,1 P. Wms. 96. 3 Bac. Abr. Joi t tenants, letter F- Rose v%' Hill, 3 Bur. 1881. Trotter v. Williams, 8 Vin. Abr. 328. \'ow« lan v. Mulligan, 1 Bt’o. C. 0.489. 2 Ves. juo. 038, 265. 3 Ves. 204, 450. 4 Ves. 554. 5 Ves. 800. Haws v Hews, 3 Atk. 524. Cro. Car. 185. 3 Fearue. 53, 224. 188, 240, 442,199. 2 Cli. Rep. 61. 1 Ves. 14. 2 Ves. 634,7. 3 Ves. 20l.. Roebuck v. Dean, 4 Bro. C. C. 403. 3 Bro. C. C. 215. 1 Wils; 341, 105. Oowp. 660.
    It w as conceded on both sides, that the words * and in case of the death of either of them,” and “ but in case of the death of both,” &c. cannot, be interpreted to mean a dying generally, but must be construed to relate to some era, or defiuite period of time," or be rejected as uncertain and void.
    For the plaintiff it was Contended, that unless it should appear,inamfestly, from the will, to be the testator’s intent to prevent a lapse' of the share of either, or both of the legatees, dying in his life time, the v/ords cannot be construed to relate to the death of the testator.That wherever this construction has been given, it has been in order to effectuate some manifest intent of the testator, to be collected from his will; to provide for children, or to prevent a lapse' in case of the death of either of the tenants in common in the life' time of the testator. The words “ share and share alike,” and t!to be equally divide ',” it was agreed, clearly create a tenancy in common; but the question was, what construction and eifi-Ct should' be given to the subsequent words of survivorship, upon the death of the wife and daughter of the testator. For the plaintiff it was insisted, that it was clearly the intent of the testator “ that the stfrvi. vor should enjoy the whole and that although during their joint lives, the legatees might be considered as tenants in common, yet upon the death of eitliyr, the survivor was intitled to the Whole, 2-P. Wms. 280, but for life only. That although in England j'oiuti. tenancies are not favored, because they create inconvenient estates,- and do not so wmll provide for families ; yet here, with us, the case' is different, for the ground of objection does not exist.- That the act of 1791, abolishing the right of primogeniture, takes away the jus accrescendi, or light of survivorship, and on the death of a joint-tenant, the estate is turned into a tenancy in common. But in this case, it was contended, that the words “ and in case of the death oí either oí them, the survivor shall enjoy the whole,” must be construed to mean, if either should die without issue: because,- it was insisted, the testator never could have intended so unnatural a thing, as that in case oí the death of his daughter leaving lawful issue, the widow should take the whole! or that the estate should go over to his collateral kindred. And it would be doing less violence to the will, and favoring the intent more, to add the words, “ without issue,” than to reject the words of survivorship, or to supply the words “in my lifetime.:” for it was sain that these last words must be superadded, if the words of the will “in case of the death, &c.” are to be construed as relating to the testator’s death. Upon the death of both legatees, without issue, the plaintiff became infilled; and ail the cases which pin the dying down to the testator’s death, go upon the reason of its favoring the intent, and providing for children.
    On the other side it was argued, that the authorities were all clearly in favor of the construction which fixes the era of dying to the death of the testator, or confines the event to the testator’s life time. Wills are always expounded favorably for children, and grand children, because it is always presumed to be agreeable to the testator’s intention to provide for them, unless the contrary plainly appears : but in a case like the present, no injustice, or hardship, of the grandchildren of the testator being left unprovided tor, will be likely to result from the construction contended for by the defendant, whereas a different construction would be productive of great evil. There is no danger that it will operate to the disinhe* ritance of the testator’issue, if the event, or contingency,-on which the estate is to pass over, be confined to the life time of the testator ; for upon the happening of the event in his life time, if the legatee should die leaving issue, the testator has it in his power by making another will, or by adding a codicil, ro provide for such issue. It appears evident from tne whole will that the testator intended a tenancy in common,-and not a joint.tenancy, not only by the expressions “share and share-'alike,” and “to be equally divided,” but from the power giren to the executors to appoint proper persons to make partition; wtwelris-a person: 1 trust, or duty, to beexeeuted by them, and therefore not to be deferred in expectation of some future event, which might, or might not, happen during their lives. The words denoting a joint tenancy cannot be construed te create a joint-tenancy, in direct opposition to the testator’s manifest intent to the contrary, which directs a division; for joint-tenant» by the common law are not compellable to m.tke partition, Co. Litt. 187 : nor were tenants in common. The meaning, therefore, of the words "that the survivor shall enjoy tue whole,” must be, that in Case of the death of either the wife, or daughter, hi the testator’s life time, the survivor should have the whole. The Words “ without issue” cannot be supplied to favor a surmised, or conjectural intent, although they might be to further a clear and manifest intent And the intent not being obviously clear, the general rule of construetion must be adhered to, viz. “ that where a tenancy in common is clearly created, and afterwards in the same will the testator declares* that in case of the death of either of the tenants w common, the estate shall go to the survivor, or survivors, these latter words shall be construed to prevent a lapse, by the death of any of the co-ienants in the life time of the testator, -ami not to alter the estate to a joint.tenancy. Then, if ¡his construction is allowed to prevail, it must he understood that the limitation over to the (estator’» brothers, by viriue of which the plaintiff claims, could not take efffect, unless both the wife and daughier of the testator had died before him : tor the exposition oi (he words “in case of the death of either,” and “in ease of the death of both,” ought to be uniform and consistentand therefore the death of either, or of both,must be ct 'nfiued to the same era, or point of time. The wife and daughter took, as tenanis in common, the negroes in question ; and upon the division which was made between them, the same negroes became the separate and absolute property of the daughter, and the plaintiff has no right to recover.
   The court

took lime to consider of their opinion, until May, 1805, when Brevard was the only judge present who had heard the arguments in the case ; but the parties agreeing that the opinion of Trezevant, J. Who was absent sick, and had sent his opinion-in writing, should he read, the same was read.

Brevard, 3.

delivered his opinion as follows, after slating lha case : It seems to be admitted on both sides, that the words " in case of the death of either of them.” and “in case of the death of both,” must be construed to relate to some ora, or definite period of time, orto some event, or circumstance, other than the death of the lega, tees, and not to a dying generally ; or that they must be rejected altogether as uncertain and void It was contended on 'behalf of the plaintiff, that the words “ without issue” ought to be supplied, to give effect to the intention of the testator, and a consistent meaning to the words in question ; and that upon she death of the wife and daughter, both without issue, the property vested in the plain. tiff, by virtue of the devi.v- over to the testator's! brothers. The verdict does not state how the plaintiff becomes; infilled under the devise over; but his right to cb .m upon that ground seems to be admitted. It was also contended for the plaintiff, that although the words “ to be equally divided,” «fee. make a tenancy in common, yet the subsequent words, -‘ he survivor shall enjoy the whole,” shew that ttie testator did not intend a tenancy in common, except during ihe joint lives of the legatees, hut that upon the death of either, the survivor should take the whole : and therefore, upon the death of the wite without issue, the daughter became in titled to the benefit of the whole bequest and to enjoy the same duriug her life, and to be hers absolutely forever, provided she had issue; but she having died without issue, the property bequeathed to her then in» stantlv vested in the plaintiff.

On the contrary, it was argued for the defendant, that the words “ in case of the death,’’ &e. must be construed to confine such case of death to the life time of the testator, and to fix the era of survivi >g to his death : and therefore, as the legatees both survived the testator, the devise over could not take effect.

The governing rule for the co struciion of wills, is, that the intention of the testator shall prev-iil, if it cae he ascertained, and if it be not incompatible wi-.b the roles of law. But if the intention be unknown, tr certain, or merely c > j.-eutral, then the legal intent shall prevail. It is certai ly ve.v import tut, a -d .very useful, to explain the law on such principles as may afford rules to guide us in the construction of «titer cases of a similar i ato re. By such means our proceedings require uniformity, certainty, and stability, and security is given to civil rights. In the present case, the intention of the testator is uncertain. It is by no means clear, what was intended by the words, ** in case of the death of either,” or “ in case of the death of both ;” or whether the testator meant to give the property in joint-tenancy, or in common. It becomes tieeessary, therefore, to resort to legal reasoning, and to the rules furnished by analogous cases, to enable us to expound these words with legal propriety and effect.

The expressions “equally to be divided,” and “share and share alike,” and also the direction in what manner to make a division of the property' bequeathed, all clearly imp wt ateraucy in common. Prec. Ch. 164. 2 Eq. Ca. Abr. 535 1 Salk. 326. 1 P. Wms. 96. 1 Vern. 33. 2 Vern. 323. I Ves. 165.

The subsequent words of the bequest, which give the whole to the survivor, indicate a joint tenancy; but the words which imme» diately follow,, viz. “ to them, and their heirs, forever,” are repugnant and contradictory. In the exposition of last wills, it is a principle that every word shall have its effect, and not be rejected, if any construction can possibly be put upon it.

In the case of Barker v. Giles, 2 P. Wms. 280, where the do-vise was to two, and the survivors, and survivor of them, and their heirs, and assigns, forever, equally to be divided between them, share and share alike; and the difficulty was to reconcile and give effect to the words of survivorship, and the words importing a tenancy in Common, without rejecting any of them, the Lord Chancellor construed the words to mean a joint-tenancy for life, with several inheritances in common, by which every word had effect.

If the same construction would apply in the present case, it ought to take place ; but the cases are dissimilar. In the present case it seems clear, that the testator intended a division between his wife and daughter, and not between their heirs ; for the executors are directed to chose fit persons to make partition : and in case of the death of either the wife or daughter, the testator’s desire is, “ that the survivor shall enjoy the whole. ”

In the case of Stones v. Heurtly, 1 Ves. 165, the devise was to three, “ to be equally divided amongst them, and the survivors of them, and their heirs.” The words “and their heirs,” were held to explain what was intended by the word “survivor,” namely, an equal division between the heirs of him, or them, that should die first, and the surviving devisees or devisee ; according to the construction which was adopted in the case of Blisset v. Cranfield. 1 Salk. 226. 1 Ld. Raym. 624.

The words “ without issue,” cannot be superadded after the words “ in case of the death of either, or both,” for there is no certainty that this was the intent of the testator : and the court are not authorized to supply words in order to satisfy a conjectural intent. There are no authorities in point to justify this construction: and moreover, I think it rather more probable, that the testator did not think of providing by his will fo,r a contingency which might never happen, and which in fact did not happen, or which might have happened in his life time, namely, the death of his daughter leaving issue, than that he should have intended the effect which these superadditional words would produce ; for they must have the effect of providing for the issue of the wife by a subsequent marriage.

The case of Spalding v. Spalding, Cro. Car. 185, is not like the present. There the devise was “to J. and the heirs of his body in tee, after the death of A., and if he should die living, A. then over.” The estate being expressly given to J. and the heirs of his body, after the death of A., the words.“ without issue” must be implied, in order to give a consistent meaning to the subsequent words, “and if he should die living, A.” &c.

In the case of Nowlan v. Nelligan, 1 Bro. C. C. 489, there were no words of survivorship. The devise was “ to H. N , and in case of her death, over.” The Lord Chancellor supposed the testator meant the death of H. N., when ever it should happen, according to the literal import of the words. This construction involved no contradiction, or repugnancy, to the testator’s intent.

The cases most in point to the present, confine the words relative to dying and surviving, to two different eras, or particular periods of time : first, to the time when the legacy becomes payable ; secondly, to the life time, or death of the testator.

Trotter v. Williams, and Haws v. Haws, are two cases of the first mentioned description. In Trotter v. Williams, Prec. Ch. 28, 8 Vin. Abr. 328. the bequest was of a certain sum to A., and of a certain other sum to B., “ and if either of them die, then his legacy to the survivor.” Here the dying was construed to refer to the time when the legacies became payable.

So in the case of Haws v. Haws. 1 Ves. 14. 3 Atk. 524. There the legacy was of a customary part, by which it,- evidently appeared that the testator did not mean a survivorship of himself: therefore Lord Hardwicke referred the dying to the time, when the legacy was to be paid ; when the legatee sh 'uld attain the age of twenty one years, or mam. go. It was held clearly, that the words of survivorship must be applied to. some particular time, and not to a dying indefinitely.

In the case of Haws v. Haws, Lord Hardwicke. is made to say, “ that dying in the testator’s life is not a iiatur.,1 way of explaining the testator’s intent, as one seldom provides by will for contingencies that are to happen in his life.” There is nevertheless a stream of cases, in the decision of which this rule of construction has been applied: and Lord Hardwicke himself acknowledges, that if no other reasonable construction can be found, the court will resort to this.

Upon the present occasion, whether the rule be a natural or an artificial one, there seems to be a necessity for having recourse to jt for the purpose of expounding the devise in question ; for there does not appear to me any other morfe natural or reasonable way of explaining the testator’s intent.

In the case of Bindon v. Suffolk, 1 P. Wms. 96, where the de. vise was to five grandchildren, share and share alike, equally to he divided between them, and if any of them died, then his share to go to the survivors and survivor of them, Lord Cowper held and decreed, that the grandchildren were tenants in common, and not joint-tenants ; and that the subsequent words of survivorship have relation to the death of the testator, in order to prevent a lapse of the legacy of any of the grandchildren who might die in the life time of the testator. By this construction every word had effect.

It seems that this decree was afterwards reversed, on appeal to the Lords, but upon what ground, does not appear. In a subse. quentcase, however, namely, that of Stringer v. Philips, 1 Eq. Ca. Abr. 292, 199, 3 Bac. Abr. 195, the same rule or principle ot construction was adhered to. There the bequest was to five persons, of £100 each, equally to be divided between them, and the survivors and survivor of them ; and if A'., one ot the five, die before mar. riage, her share to go over. It was held they took as tenants ia common ; and that the words survivors and survivor, being contra, dictory, must either be rejected, or construed to relate to the testa, tor’s death.

In the case of Rose v. Hill, 3 Bur. 1881, the same words “ survivors and survivor,” were made to refer to the death of the testator, to avoid a lapse, and not to constitute a joiut-leuancy.

In Roebuck v. Dean, 4 Bro. C. C. 403, 2 Ves. Jun. 265, the bequest Was to E. R. during life, and after her decease to .be equally divi. ded between her brother and four sisters, and in like manner to the survivors, or survivor of them It was held, that all those, who survived the testatrix, took as tenants in common.

In Brograve v. Winder 2 Ves. Jun. 634, the devise W:as of money to be raised by sale, and to be equally distributed .among three sons and a daughter of A. W., or the survivots, or survivor of them; and that such fourth or other part of such money as the daughter should he iutitled to, should be settled upon her prior to any marriage contract, for her life, .and after her death, on her issue, &c„ The Lord Chancellor thought the words of survivorship were in. serted to prevent -a lapse ; for otherwise, if any of :the persons had died in the testator’s life, it would have been a lapsed devise for the benefit of the heir. The Lord Chancellor is made to remark in this case, thatP. Wms. report of Bindon v. Suffolk is not accurate; and that the words .related,to the time when the debt should.be paid* which governed the determination of the House of Lords.

In Perry v. Woods, 3 Ves. 204, the bequest was to A. for life, and after her decease to her children ; and if she should leave none, to B. aud C., share, and share alike, or to the survivor. The Master of the Rolls decreed in conformity to- the case of Stringer v. Philips, which he considered a governing case. In this ease, A. died without children : and B. and C. had a vested interest upon the death of the testator, who died living A., as tenants in common. The words share and share alike, create a tenancy in common, unless controlled by circumstances clearly denoting that they are not used m that sense.

In Maberly v. Strode, 3 Ves. 450, words of survivorship added to a tenancy in common in a will, were applied to the death of the testator, there being no apparent intention to postpone the vesting to (he death of another. The Mastei of the Rolls observed, that the construction that the benefit of survivorship was to prevent a lapse, and to vest an interest at the death of the testator, is much the most beneficial construction. See 4 Ves. 551. •

To conclude, I ana clearly of opinion, that the words “ without issue” cannot be supplied by construction in the present case, and that judgment ought to be given for the defendant.

Trezevant, J.

was of the same opinion.

Present, Grihke, Trezevant, aud Brevard, Justices.  