
    *Wrights v. Oldham and Others.
    April, 1837,
    Richmond.
    (Absent Bbooke and Pabkeb, J.)
    
    Wills — Construction—Case at Bar. — Testator devises and bequeaths his whole estate, real and personal, to his five daughters and his grandson B. L. to be equally divided among them; but provides that his daughter Elizabeth shall only have a life interest in her sixth, which, at her death, he gives and bequeaths to be equally divided among her children (named in the will) to them and their heirs forever. And then he declares, that if either of his daughters or grandchildren should happen to die without haying lawful issue,'then and in that case he only means to lend him, her or them what he has given as abovementioned. and after his, her or their decease, to be equally divided among the survivors of them and their heirs forever. — It seems, the testator’s meaning was, that if either of his daughters or his grandson B. L. should die without issue, the share of the person so dying should be equally divided among his surviving daughters and grandson aforesaid; and if either of his other grandchildren (the children of Elizabeth) should die without issue, his or her share should be equally divided among the survivors of the grandchildren last mentioned.
    Same — Same—Settled by Acquiescence — Case at Bar. —In 1820, on the death of a legatee for life, the parties supposed to be entitled as legatees in remainder make a division of the property, in accordance with what they apprehend to be their respective rights under the will: in 1826, on the death of another legatee for life, the same parties make another division, according to the same construction of the Avill which had been adopted on the former division: in 18! 7. two of the parties file a bill in chancery against the others, insisting that the will has been misconstrued to their prejudice, and asking that the property, of which division was made in 1826, may be redivided according to the true meaning of the testator: Held, the proper interpretation of the will being difficult and uncertain, that construction which was placed on it by the division in 1820, and acquiesced in by the parties concerned, shall be adhered to.
    Benedict Middleton, by his last will and testament, made in May 1782, and admitted to record in September 1785, after directing that all his just debts be duly '*paid by his executors, devised and bequeathed as follows:
    “Item, I lend unto my dear wife Hannah Middleton, during her natural life, the use ■of all my lands and one half of my negroes and personal estate.
    Item, I give and bequeath the other half of my negroes and personal estate to be equally divided among my grandson Benedict Lamkin, and five daughters, Elizabeth Lewis, Jane Wroe, Hannah Middleton, Martha Middleton and Ann Middleton, to them and each of their heirs forever.
    Item, I give and bequeath to my said grandson Ben. Lamkin, and my said five daughters, Elizabeth, Jane, Hannah, Martha and Ann, and their and each of their heirs forever, after the decease of mj' said dear wife, all my lands and the negroes and personal estate which I lent her during her natural life, to be equally divided among them; but my meaning is, and it is my will and desire, that my «daughter Elizabeth Lewis may only have her life in what I have given her as above, that is, one sixth part of my whole estate, real and personal, and after her decease I give and bequeath the same to be equally divided among my grandchildren that she had by her first husband Francis Wright deceased, and the child she now has or may have by George Lewis her present husband, to them and their heirs forever, with the future increase of the negroes that may be allotted to my said daughter Elizabeth Lewis. But be it remembered and understood, and it is my will and desire, that if either óf my daughters or grandchildren should happen to die without having lawful issue, then and in that case I only mean to lend him, her or them what I have given as above mentioned, and after his, her or their decease to be equally divided among the survivors of them and their heirs forever. ’ ’
    Elizabeth Lewis died in 1793, in the lifetime of Hannah Middleton the widow, leaving issue three sons, Benedict *Wright, William Wright and Johnson W. Wright, children of her first husband Francis Wright, and one daughter, Hannah Lewis, the child of her second husband George Lewis. Johnson W. Wright died in 1803, leaving issue a son, Benedict D. Wright, and a daughter, Polly E. Wright, who afterwards intermarried with Samuel J. Boothe. Hannah Lewis the daughter of Elizabeth Lewis intermarried with Samuel Clark, and died in 1815, leaving issue two daughters, Judith and Betsy, the lastnamed of whom afterwards intermarried with Marcellus Windsor.
    Hannah Middleton, another daughter of the testator, also died in the lifetime of the widow, and without issue.
    Hannah Middleton, the widow of 1he testator, died in 1795.
    Ann Garner (formerly Ann Middleton) another daughter of the testator, died in April 1820, without issue.
    Jane Wroe, another daughter of the testator, died in December 1826, also without issue.
    In August 1827, Benedict Wright and William Wright, the surviving children of Elizabeth Lewis, instituted a suit in the superiour court of chancery for the Freder-icksburg district, against Martha Oldham (formerly Martha Middleton) in her own right and as administratrix of Jane Wroe deceased, Benedict Lamkin, Benedict D. Wright, Samuel J. Boothe and Polly his wife, Marcellus Windsor and Betsy his wife, and Judith Clark. The bill was filed in October 1827. After setting forth the provisions of the testator’s will, and the several events above detailed, it charged, that at the time of Ann Garner’s death she had in her possession 12 slaves and 104 acres of land, of the property devised and bequeathed by the will of the testator as aforesaid; and that, soon after her death, the county court of Westmoreland appointed commissioners to divide her land and slaves among the persons entitled thereto according to the provisions *of the testator’s will; in pursuance of which appointment, and of the supposed intent of the said testator, the commissioners divided the slaves into three equal portions, of which Benedict Lamkin took one, Martha Old-ham another, and the plaintiffs, together with the other descendants of Elizabeth Lewis, took the third; the 104 acres of land being allotted to Jane Wroe as equivalent to a third part of the slaves. That the plaintiffs were now advised, and believed, that this division was contrary to the intent and meaning of the will, according to the true construction whereof the said land and slaves should have been divided into five equal portions, of which B. Lamkin was entitled to one, Jane Wroe to another, Martha Oldham to a third, and the plaintiffs to the remaining two. That at the death of Jane Wroe, she held 27 slaves and a tract of land, of the property devised and bequeathed by the testator’s will as aforesaid; and that, at the term of the county court of Westmoreland held in March 1827, commissioners were appointed to divide the land and slaves last mentioned, according to the provisions of the said will; in pursuance of which appointment, the commissioners had proceeded to divide the said land and slaves into three equal portions, of which B. Lamkin had taken one, Martha Oldham another, and the plaintiffs between them the third. That Benedict D. Wright, Samuel J. Boothe and wife, Marcellus Windsor and wife and Judith Clark claimed to be entitled to some portion of the said land and slaves, as heirs and distributees of Elizabeth Lewis: whereas the plaintiffs insist that they wrongfully received a portion of the property held by Ann Garner for life as aforesaid, and that they have no title to any portion of that which was held by Jane Wroe, which last, the plaintiffs contend, should be equally divided among'the said B. Lamkin, Martha Oldham and the plaintiffs, a fourth part to each. That the plaintiffs had repeatedly urged on the defendants the propriety of a *redivision of the said property’, but they had invariably refused to consent. Wherefore the bill prayed that the said defendants might be compelled to answer the premises; that the court would decree a redivision, as well of the property held by Ann Garner, as of that held by Jane Wroe, according to the true intent and meaning of the testator’s will; that the defendants might be required to account for the rents and profits of the land and slaves improperly withheld from the plaintiffs, and the value of such as had been sold; and general relief.
    B-. Lamkin and Martha- Oldham (the latter in her own right and as administratrix of Jane Wroe) answered, admitting the division of the property held by Ann Garner and the said Jane, respectively, as stated in the bill. But they said, the plaintiff William Wright himself administered on the estate of Ann Garner, and on his motion the county court of Westmoreland appointed the commissioners to divide the property held by the said Ann; and both of the plaintiffs were present at the division, and consented thereto. And as that division was made in 1820, and these respondents had ever since held peaceable and adverse possession of the slaves thereby allotted to them, they prayed the benefit of the statute of limitations, so far as respected any claim of the plaintiffs to those slaves. They further stated, that the commissioners for dividing the property held by Jane Wroe were chosen by the parties interested, among whom were the plaintiffs; and the division was made on the presence of the said parties. In proof whereof, respondents exhibited a report signed by those commissioners, which stated, that they made the division of the slaves o.f Jane Wroe by the request and consent of B. Lamkin, Martha Oldham, Benedict Wright, William Wright, Samuel J. Boothe, Benedict D. Wright, and Samuel Clark who intermarried with Hannah Lewis; that this division was made on. the 28th of December 1826; that on the 22d of January following,-an order *was made by the county court of Westmore-land, directing the said commissioners to divide the land and slaves of Jane Wroe deceased; and that, having already divided the said slaves as above mentioned, they proceeded, in conformity to the order, to make a division of the land. Respondents alleged moreover, that upon the death of Hannah Middleton without issue, Elizabeth Lewis the mother of the complainants received one fifth of said Hannah’s estate, which portion, at the death of said Elizabeth, was divided among her children. And they insisted that upon the true construction of the testator’s will, the said Elizabeth was not entitled to any part of Hannah Middleton’s estate; nor, upon the respective deaths of Ann Garner and Jane. Wroe, were the children and descendants of the said Elizabeth entitled to any part of the property held by the said Ann and Jane; but the portions of the said Hannah, Ann and Jane ought to have been divided among the other daughters of the testator, and B. Lamkin the grandson (whose mother was a daughter of the testator, and died before him) to the entire exclusion of Elizabeth and her descendants: so that the plaintiffs had in fact received the benefit of 'one fifth of Hannah Middleton’s estate, one fourth of Ann Garner’s, and one third of Jane Wroe’s, to the prejudice of these respondents. And though the length of time which had elapsed since the division of the two firstmentioned estates might prevent any disturbance thereof at this day, 3'et respondents insisted that the plaintiffs should be compelled to pay over what they had received from Jane Wroe’s estate, if indeed the court would undertake to interfere at all with the consent division of that estate.
    Marcellus Windsor and wife and Judith Clark answered, that the division of the estates of Ann Garner and Jane Wroe was made by consent of all the parties interested, including the plaintiffs; and that, in making such division, the commissioners acted in the character *of-arbitrators authorized to expound the will of the testator. They denied that the construction contended for by the plaintiffs was the proper construction of the will; but even if it were, they insisted that the plaintiffs had yielded all their claim to the portion of slaves which had been allotted to these respondents. And as to the slaves received from Ann Garner’s estate, they relied upon the statute of limitations as a bar to any claim of the plaintiffs thereto.
    Benedict D. Wright and Samuel J. Boothe and wife failed to answer the bill; and as to those defendants it was taken pro con-fesso.
    The depositions of the four commissioners who made the division, of Jane Wroe’s property (two of whom had also acted as commissioners in dividing that of Ann Garner) were taken and filed in the cause. The witnesses concurred in stating that both those divisions were made with the consent of the parties interested, including the plaintiffs; but they further stated that the design and intention, as well of the parties as of the commissioners, had been to divide the property in accordance with the directions of Benedict Middleton’s will, and that the division which was actually made, in each case, was supposed at the time to correspond with the rights of the parties under the true construction of the will.
    At the hearing in October 1830, the chancellor dismissed the bill, with costs. Erom which decree the plaintiffs appealed to this court.
    Leigh, for appellants.
    Johnson, for appellees.
    
      
      See monographic note on “wills.”
    
   TUCKER, 3?.

This case turns upon the construction of the will of Benedict Middleton, which bears date in 1782. The division which was made of Jane Wroe’s estate is assailed as illegal, so far as respects that part *of her slaves which she derived from her father, under the limitations of his will. The bill, indeed, demands a repartition of the lands and slaves held by Ann Garner under the will, as well as of those held by Jane Wroe in the same manner. I understand the counsel, however, as confining the question to the case of Jane Wroe’s slaves, as the statute of limitations has secured the title under the partition of Ann Garner’s; and I shall accordingly consider that question only.

It is conceded on all hands that the limitation over is good, and the true question is whether under that limitation the parties are to take per capita or per stirpes? I am of opinion that they take per stirpes.

There can be no question that the devise in the first clause of the will indicates the intention that the devisees and legatees should take per stirpes. The estate is given to Benedict Lamkin, the representative of a deceased daughter, and to the five living daughters, each to have one sixth; and it is most distinctly declared that Elizabeth Lewis is to have only one sixth, which sixth is to pass in remainder to her children. As original takers, then, under the will, the children of Elizabeth Lewis took by stocks, and not per capita. Is there any thing in the bill from which it is necessarily to be inferred that the testator abandoned this distinctly defined intention of giving per stirpes instead of per capita? I think not. Indeed, such a construction would involve inconsistency in the will. Eor let us suppose that Hannah, the first decedent among the devisees except Elizabeth Lewis, had died before Elizabeth Lewis instead of after her. In that event, according to the will, Elizabeth Lewis-would have taken one fifth of Hannah’s portion (either for life or in fee, it matters not which) unless we suppose her to be excluded, or her children to take with her. But she cannot be excluded; for she is one of the survivors, and the share of the deceased daughter is to be divided among the survivors. Neither can 'x'it be believed that the testator intended to give her one portion cf Hannah’s share, and her four children each one equal portion, which must be the case if they take per capita; for thus one stock, viz. Elizabeth and her family, would take five times as much as either of the other stocks. Had Elizabeth survived Hannah, therefore, it would seem clear that she would have taken one fifth in absolute property, or for life only, with remainder to her children. In either case the construction contended for would be rejected, and the estate would go to the stock, instead of the descendants per capita.

If such then would have been the effect of the will if Elizabeth had died after her sisters, can it be seriously contended that it is to receive a different construction, because she died before them? If we stick to the letter, there is as much reason for applying the partition per capita to the one case as the other. But in truth there is no absolute necessity for its application in either. The will furnishes another among the innumerable instances in which unskilful draughtsmen have used one set of words to provide for many shifting contingencies, and have welded together what ought to have been kept separate and distinct. It declares that “if either of the daughters or grandchildren die without issue, his or her share shall be equally divided among the survivors of them and their heirs.” I incline to think that this is to be understood distributively, thus: “if either of my daughters or my grandson B. Lamkin should die without issue, his or her share [that is, one sixth of the whole] shall be equally divided among my surviving daughters and grandson aforesaid; and if either of my other grandchildren (children of Elizabeth Lewis) die without issue, his or her share [namely, 1-4 of 1-6] shall be equally divided among the said surviving grandchildren.” If this be the just construction, then if Hannah had died before Elizabeth, the latter would have taken one fifth of her portion, which upon her *death would pass to her children as distributees, — not as purchasers; but as she died before her sisters, she and her children took no portion of their estates. This seems indeed the more reasonable, as upon her death her sisters took no portion of hers, but it passed to her children by virtue of the limitation over. The parties, however, have acquiesced in a partition which has treated them as entitled jure representation is, and as they have not sought to set it aside, I am not disposed to disturb it; the less so, as in cases like this it is altogether impossible to devise a pro-jet which is not liable to objection, and I am very sensible there may be objections to this. Perhaps, indeed, the safest ground on which we can rest is, that as the, construction is difficult, and the proper interpretation of the will, to say the least, uncertain and obscure, it is best to adhere to that which was placed upon it by the partition of Ann Garner’s estate in 1820, and apparently acquiesced in by all concerned until the filing of this bill in 1827. This, of itself, is a sufficient justification of the decree of the chancery court; which should therefore be affirmed.

' CABELL and BROCKENBROUGH, J., concurred.

Decree affirmed.  