
    Everts v. Chittendon.
    In the Court below,
    Joel Everts, Plaintiff; Beriah Chittendon, Defendant.
    
    The testator devised the use and im-provementof all his real estate to his •wife, until his son should arrive at the age of twenty-one years, she bringing him up ; and then devised to his son the ■whole of his real estate, except the use and improvement as before disposed of, to be and remain to him an estate for ever : Held, that afee, immediately on the testator’s death, vested in the son, subject to a personal trust or confidence in his mother.
    np HIS was an land. action of ejectment for three pieces of
    From the record the following facts appear : The plaintiff’s father, Joel diverts, deceased, being seized of the demanded premises in fee, made his last will, wherein he bequeathed to his wife, Mary Ann Everts, the whole of his moveable estate, she paying his debts and funeral expenses. His real estate he devised in the following expressions : “ I likewise give unto my said wife the use and improvement « of all my real estate, until my son, Joel Everts [then about « five years of age] arrives at twenty-one years of age, (then « she to have and enjoy the use and improvement of one « third of said real estate during her natural life,) she, my “ said wife, bringing up my said son until he arrive at “ twenty-one years of age. Item, I give to my well beloved “ son, Joel Everts, the whole of my real estate, to be and “ remain to him an estate lor ever, excepting the use to be “ disposed of as above mentioned.” In the event of his death before twenty-one years of age, or without heirs of his body, the testator gave to his wife the use of all his real estate during her life ; and devised the same after-wards to Gilbert Everts, jun. his brother’s son. ⅛
    After the testator’s decease, his widow entered upon the demanded premises, and having intermarried with the defendant, who has remained in possession ever since, she died. Joel Everts, the plaintiff, is still a minor, and was supported and brought up by his mother, until her decease, and by the defendant, ever since.
    Upon these facts, the Superior Court determined in fa-vour of the defendant.
    
      Daggett, and Allen, for the plaintiff.
    The question arising on this record, is, whether the interest given to the mother of the plaintiff by this devise, ceased at her death, that event happening before the plaintiff arrived at the age of twenty-one years ? We contend, that it did ; and therefore, that the judgment below ought to be reversed.
    No one, on reading this will, can entertain a doubt as to the intention of the testator. Joel Everts appears to be the special object of his bounty. To him he devises his real estate. To him he looked, as the person to stand in his place regarding this property. The judgment complained of, takes this estate for years from this only child, and gives it to one who was alien an to the blood of the testator, and that upon the ground of the rules of law, though in opposition to the will of the father. Let us, then, see if there be such rules of law ; for we agree, that this will must not be so construed as to-violate those rules.
    Taking it for granted, that this estate clearly belongs to the plaintiff, unless he is divested thereof, by the devise to his mother, it is the duty oí the defendant to shew himself entitled. The burden lies on him.
    We will, then, attempt to answer the cases put, and claimed as decisive of this case ; and if we shew, that they fail of effecting the object, Joel Everts must recover ; for his title is undoubted, either at the death above mentioned, or at twenty-one.
    The first case cited is Boraston's case, 
       There, the , Important words in the devise were, “ and after the term of 1 f! the said eight years, the said upper part to remain to my Ist executors until such time as Hugh Boraston shall accom- , “ plish his full age of twenty-one years ; and the mean firo-Jits to be employed by my executors towards the performance “ of this my last will and testament. The question was, ) whether the executor, after the death of Hugh, which happened at nine years, should hold the estate till Hugh would have been twenty-one. It was decided, that they should ; and upon the ground, and that a fund was created for the payment of debts, which should not be destroyed by the death of Hugh, That this was the point of the decision is manifest from inspecting the case : and in Lomax v. Holme-den,  the Master of the Rolls considers it in the same light, but totally denies its application to this case, and decides on the principles for which we contend.
    In 2d Leonard 221, and 3d Leonard 78, there are two cases precisely similar in their facts, and principles. “ A. devised, 
      “ that his lands should descend to his son, but willed that his “ wife should take the profits thereof, till the full age of the “ son, for his education and bringing up. The wife married “ another husband, and died before the foil age of the son. “ Wuay and Southcotb, Justices, held, that the second “ husband should not hold ; for nothing was devised to the “ wife but a confidence.” Thus far, the case is in our fa-vour ; but it is added, that their Opinion would have been different “ if there had been a devise of the rents and pro- “ fits to the wife till the son was twenty-one, for that would have been a devise of the land.” Without inquiring into the subtilty of this distinction, we observe, that this was merely an obiter opinion ; and, in one of the cases, it was an opinion expressed by Wray only.
    
      Dedicott’s case, in 3d Leonard 9, is also cited. That was a grant to the wife during the nonage of the heir. The wife took another husband, and died. It was holden, that the husband should have the lands during the nonage of the infant.—It is difficult to see how that case bears on this. It depended on the grant, which was explicit, to the wife, during* the nonage of the heir, without any condition. But in our case, there is a condition, as is admitted.
    In Balder v. Blackborne, 
       the devise was to the wife of the profits of the land, to her own use, without account, provided she paid the quit-rents and fines ; and to the daughter, and her heirs, at eighteen. The wife married, and died while the daughter was under eighteen. It was resolved, that the second husband should hold till the daughter became eighteen. In this case, fines and quit-rents were to be paid ; the wife was to hold without account ; these circumstances clearly distinguish it from our case. In Courthofie v. Wey-man, 
       the devisor appointed Matthew Robinson his executor, and directed, that he should receive and take tlje issues and profits of the land for and towards the maintenance of his respective children, till they became of full age respectively. 
      The question in this case was, whether M. Robinson had, by the will, a mere trust, or an interest coupled with a trust ; and it was decided, that he had an interest. Bridgman, Chief Justice, at the close of the report, says, “ Either “ the executor, till twenty-one years, or the heir, must have “ it ; if the heir, ’tis a fine case." In this remark, there is a clue to many of the cases on this subject. The eldest son being sole heir to the estate, will lake immediately on the death of the person to whom the estate has been devised to pay debts, educate younger children, See. unless the will is so construed as to give the estate to the executor or trustee for such purposes. The courts, therefore, have leaned to such construction, and with great propriety.
    
      Taylor v. Riddall, 
       is cited against us. The point decided in that case was, that where an estate is given to A. for so long time, and until his son B. attain the age of twenty-one ; and after that to B. in fee, and if he die before tw'enty-one, then to the heirs of the body of C. the father of B., and their heirs for ever ; A. takes an estate for years, and the remainder in fee is immediately vested in B.—This doctrine does not, in any degree, militate against the principles for which we contend ; and North, Chief Justice, in giving his opinion, sanctions the rule as we admit it, viz. that where a fund is created for the payment of debts, &c. it shall not be defeated, if the person to whom the estate was to go had not, at his death, attained the age, at which, by the will, he was to take possession.
    The foregoing are the cases on which the judgment of the Superior Court is justified. Not one of them supports that judgment. The distinctions are obvious.
    In 1 Eq. Ca. Mr. 194, 195, pi. 2, 3, 4. 2 Eg. Ca. Ahr. 363,pi. 13. 8 Vin. Abr. 291, pi. 13. Poro, on Dev. 301, 302. Willes 301. Cro. Eliz. 252. 3 P. Wms. 176, and 
      Gilb, Eq. Reft. 36—this doctrine is considered, and the distinction is taken on which we rely.
    It is urged, however, that this devise to the wife is not of a trust merely,' but an interest ; and that the confidence is subject to the interest ; and that it might, therefore, well go to her husband as a chattel. We have already said, and of this there can be no, doubt, that she took ah estate for life upon condition that she brought up this child. Had she refused to perform the duty assigned to her, by the will, it would be too much to say, that she should enjoy an estate given to her with such a clause, viz. “ she bringing up my said son Joel” &c. What is the duty here enjoined ? Bringing u¡i a child is an expression in common use : it plainly imports the performance of all the high duties of a parent regarding the interests of a child. Can such a trust be assigned ? Did this testator intend, that the bringing ufi of this child might be committed to a stranger, and he enjoy the property l
    
    
      Sterling, and Gould, for the defendant in error.
    The remainder, limited to Joel, the plaintiff, though vested in interest, cannot vest in possession, till the time, when he will, by computation, attain full age. Till that time, the whole estate is devised to his mother ; who took a beneficial interest, for so many years, as he was under full age, at the testator’s death. A devise to A. until B. attains the age of twenty-one years, remainder to B. in fee, gives A. a term for years, which continues, till B. would, if living, arrive at that age : The word, “ until,” being a description of the time, when the limitation to B, shall take effect in possession. Boraston's case, 
       Hayward v. Whitby, 
      
      Taylor v. Biddall. 
      
       And there is not an authority, nor a dictum in the books, to prove, that in such a case, the death of the •first devisee, before that time, determines his estate. De-
      
      dicot’s case  is precisely in point, except for a eircum-stance, which makes it the stronger, viz. that it was the case of a grant, instead of a devise. Does, then, the clause, jn devise to the plaintiff’s mother, “ She bringing up , — »» n 5»* . . - « . i 44 my said son Joel*\U c. so distinguish the principal case from the one supposed, as to accelerate the enjoyment of his remainder, in the events, which have happened ! r
    
    The proposition to be supported for the defendant, is, That the interest, first devised to the plaintiff’s mother, was not determined by her death. For, that she took an interest, as contradistinguished from a naked authority, cannot be questioned.
    In Boraston’s ease,  there was a devise to executors, until such time as II. should accomplish his fall age ; the mesne profits to be employed towards the performance of the will; remainder to H. and his heirs. II. died at the age of nine years, and the question was, whether the interest of the executors was determined by his death, within age ? It was decided, by the whole court, that “ the executors had a good <( term for twelve years, which was not determined by the “ death of H,”—twelve years being the difference between the age of twenty-one, and the age at which he died. This is recognized as a leading authority, in all the subsequent cases; and though not in point, serves to explain the general nature of a devise to one person, till another arrives at a certain age.
    But it is contended, that the fund, created for the “ performance of the will,” was the ground of the determination in Boraston’s case. Flow is this discovered ? It certainly does not appear from the report, that that consideration had any influence whatever in the decision. In Lomax v. Holme-don, 
       indeed, the Master of the Rolls supposed, that the clistinctkm was material between cases, in which there is such a fund provided, and those, in which there is not. His observations upon the subject are, however, not only obiter, but expressly applied to a different event from that, which raises the present question. In that case, there was a devise to the testator’s daughters, they flaying his son C. 200/. per an-num, until his age of forty years, with remainder to his son C. for life, &c, and from and after the death of C. remainder over. C. died under the age of forty; and the point decided was, that the remainder over took effect in possession, immediately upon his death. But the remainder was there expressly limited to take effect from and after the death of C. It is perfectly clear, therefore, that that case is inapplicable to the question : And what is said obiter, by the Master of the Roils, as to the effect of a fund for the payment of debts, relates, in terms, to the supposed event of the death of the remainder-man, and not of the first devisee. If it should be objected, that in the principal case also, the estate is ultimately limited to Gilbert, on the death of the plaintiff’s mother ; the obvious answer is, that the event contemplated in that limitation, is that of her dying, after the death of Joel without issue.
    The case of Mansfield v. Dugard 
      
       is also foreign to the question. There, land was devised to the testator’s wife, till his son should attain to the age of twenty-one years, remainder to the son. No fund was created for the maintenance Of the son, or for any other purpose. He died at the age of thirteen; and it was holden, that the wife’s interest determined on his death_Without inquiring, how far this determination is conformable to the principes, established in other cases, (for, in point of precedent it is distinguishable from all others) it is sufficient to observe, that the decision does not affect the question under discussion. If, in the present case, the plaintiff had died within age, and his mother had survived ; the events in the two cases might, indeed, compare : But the cases themselves would still be dissimilar in other ■respects.
    
      
      .Veal v. Ilanbury 
       was decided expressly upon the ground, that the bequest, and the condition annexed to it, were both strictly personal ; and that the latter was in its nature, and necessarily, so. Whether the claim of the defendant is liable to the same objection, will appear, from several of the authorities, which remain to be cited.
    That the devise to the plaintiff’s mother was of an interest, is not denied. To deny it, would be to assert, that the whole estate was in the plaintiff on the testator’s death. The distinction is well settled between the devise of a power over the subject, and a devise of the subject itself for a limited time. 
       The interest thus devised to the mother, is a chattel real, which, though connected with a confidence, is, in its nature, transmissible ; and that it did not determine by her death, is abundantly proved by that class of cases, which establishes the distinction between,an authority, coupled with an interest, and a naked authority.
    Powell, when explaining this distinction,  and with a full knowledge of the cases, makes use of these words : “ If u one devise the profits of his land unto his wife, until his “ son be of age, to bring up and educate him ; this is a confi- “ dence, coupled with an interest.” “ And in all these cases “ of interests,"the estate shall not determine, until the time “ limited, See. And if the devisee in such cases die, his re-i( presentatives shall have the land during the rime.”—The rule, thus laid down by this great lawyer, is founded not upon any supposed distinction between cases, in which there is a fund created for the payment of debts, or the support of younger children, or any similar purpose, and those, in which there is none ; but upon the nature and properties of the thing devised—upon the distinction between an interest and a naked authority. And upon this distinction all the cases, which compare with the present, proceed—.Thus, where A. devised) that i! bis lands should descend to his son, but that “ his wife should take the profits till his full age, for his ed- • “ ucation and bringing up,” the wife having married a second husband, died before the full age of the son ; and it was determined, that the second husband should not have the profits of the land, till the son should obtain full age : li Foil, u nothing is devised to the wife but a confidence ,” (i. e. a bare authority) “ and the same confidence cannot be transferred to “ the husband ; but contrary, if he had devised the profits “ of the land to the wife, until the age of the infant, to bring him “ up. and educate him ¡for that is a devise of the land itself.” 
       There is a case, precisely similar to this, 3 Leon. 78, in which "Wray, Ch. J. says, “ If the husband had devised the profits f£ of the land to the wife, .until the age of the infant, to bring “ him up and educate him ; the same amounted to a devise “ of the ¿and, and so a chattel in the wife, which would accrue “ to the husband.” In these two cases, the express arid sole ground of decision was, that the devise to the wife was of a mere confidence, or naked authority, and not of an interest: And though the concluding remarks, in both of them, are but dicta, they are dicta in point, which cannot be said of the obiter remarks of the Master of the Rolls, in Lomax v. Holme-don.
    
    In Courthope v. Heijman, 
       there was a devise of the profits of land to M. R. the executor, “ for and towards the “ maintainance” of the testator’s respective children, « till w the said children did attain to their respective ages.” Before they all arrived at full age the executor died ; having devised the residue of the term to his executors ; and it was decided, that the interest devised to him, was not determined by his death, Imt well vested in his executors. It is objected, that the ground of this decision was, the provision made for the maintenance of younger children. According to the report of the case, however, the judgment turned upon the sole question, u whether M. R. had a trust, or “ whether an interest, by the will ?” If this consideration furnished the rule of decision, it is clear, that the judgment must have been the same, if the fund had been created in favour of the heir at law only. Besides, Bridgman, Ch. J. cites, in his argument, towards the endof the report,  two cases, which are very strong to prove, that the circumstance of a fund’s being created for the support of younger children, is no criterion in questions of this kind.
    The case of Smith v. Havens 
      
       is precisely in point, unless the circumstance of the provision, made for younger children, governed the decision. In that case, J. S. “ devised, “ that if his wife think good to bring up his children, &c. that “ then she shall have his lands, till his son J. S. attain to his “ age of twenty-four years.” The wife died before the son arrived at that age : And it was resolved, that that event did not determine her estate. Now, that the provision made for the children was not the ground of the judgment, appears expressly from the report; in which it is said, “ The ques- “ lion was, if this was only a matter of confidence, or of an interest also in the land ?” This was the precise point, on which the case was decided-
    But the case of Balder v. Blackburn 
      
       admits of no such objection, as that last mentioned, and is, we conceive, an unanswerable authority for the defendant. There J. W. devised the profits of his lands to his wife, to her own use, without account, till his daughter should arrive at the age oí' eighteen ; provided the wife should pay the quit-rents and fines, and keep and bring up the daughter, &c. remainder to the daughter in fee. The wife took a second husband, and died, before the daughter attained the age of eighteen. The court held, that this was “ a plain term, given to the wife, to “ her own use, which accrues to the husband ; and the ** keeping and education of the child is not of such particu- “ lar privity, but it may be performed effectually by another,” Here was no fund for the payment of debts, for younger children, or for any other purpose, than that of maintaining the devisee in remainder. It is urged, however, that this case is distinguishable from-that now before the Court, by the words in the devise, “ to her own use, without account,” and by the wife’s being obliged to pay the quit-rents and fines. But the words “ to her own use,” &c. can have no other effect, than to manifest the testator’s intention, that the wife should take a beneficial interest; and it is not denied, that such an interest was given to the plaintiff’s mother, in the principal case. She took an estate “ to her own use nor was she liable to account, in any sense, in which the wife in the case cited was not so. The quit-rents and fines were nominal charges ; but if they had been of any real consideration, the only possible effect of the provision, that the wife should pay them, would be to fortify the conclusion, before jnentioned, that the testator intended to give her a beneficial interest.
    It is still objected, that, as the condition, annexed to the term, devised to the plaintiff’s mother, (She bringing up. my said son Joel) cannot now be performed by her, the term is forfeited. But it should be remembered, that when a condition subsequent becomes impossible, by the act of God, the estate is not divested by it.  In the present case, however, the condition has not become impossible. It may still be performed, as it has been, by the defendant. The charge of maintaining the plaintiff devolves with the interest, to which it is annexed. And to the objection, that the trust is in its nature personal, and cannot be transmitted, it is, surely, a sufficient reply, that such a trust, when created in favour of younger children, is admitted, by the argument for the plaintiff, to be transmissible. But, the cases of Smith V. Havens, Courthofie v. Heymqn, andBalder v. Blackburn, even according to the construction, given to them by thu plaintiff’s counsel, furnish a direct and decisive answer to both these objections.
    
      
       3 Rep. 19,
    
    
      
       3 P. Wms. 176.
    
    
      
      
         Hobart 285.
    
    
      
      
         Carter 25.
      
    
    
      
      
        2 Mod 289.
    
    
      
       3 Co. 19.
    
    
      
       1 Burr. 228.
    
    
      
       2 Mod.289. Fearne on Can. Rem. 167, 171, 438.
    
    
      
       3 Leon. 9.
    
    
      
      
        Ubi, ante.
    
    
      
       3 P. Wins. 176.
      
    
    
      
       1 Eg. Ca. Abr, 195. S. C. Gilb. Eq. Rep 36. S. C. 8 Vin. Abr. 291,2.
    
    
      
      
        Prec. Cha. 173.
    
    
      
      
         Mo. 774. Dy. 36b. Cro. Eliz. 678, 734, 252. Dy. 210.
    
    
      
      
        Essay on Dev, 301,2 1st edit.
      
    
    
      
      
        2 Leon. 221.
    
    
      
      
        Cart. 25.
    
    
      
      
        Cart. 27.
      
    
    
      
      
         Cro. Eliz. 252.
    
    
      
      
        Hob, 285.
      
    
    
      
      
        Co, Lit. 206, 2 Black, Com. 156,7.
    
   By the Court.

The questions raised on this record are* whether a fee, immediately on the testator’s death, vested in his son, the plaintiff in error, subject to a personal confidence or trust reposed in the mother, which ceased at her death ; or, whether the devise to Mary Ann Everts was of a term for years, limited by the period in which her son should attain, or, if he should die before, might have attained, had he lived, twenty-one years of age. The former, in our opinion, is the true construction of the will.

There is no rule better established, than “ that the inten» 41 tion of the testator expressed in his will, if consistent with (t the rules of law, shall prevail.”

In the expression of the intention, as Lord Hardwicks truly said in Bagshaw v. Spencer, there can be no magic or particular force in certain words, more than in others ; their operation must arise from the sense they carry ; and that sense can only be found, by considering the whole will together.

What the intention of the testator was, it is not difficult to discover. For his wife he had made provision, hy a bequest of all bis moveable estate, and a devise of the one third of all his real estate, during her natural life. This, according to the general practice of our country, and the law for the distribution of intestate estates, was, at least, a reasonable disposition of property for the support of his wife ; and it is no unfounded presumption, that it was so considered by the testator.

At the making of the devise, Joel Everts, the testator’s only son. was about five years of age. What more reasonable, than that the testator should commit him to the guardianship of his mother, and give to her the improvement of his estate, to maintain, protect, and educate him ? Accordingly. it appears, that the testator gave to his wife the use and improvement of all his real estate, until his son should arrive at twenty-one years of age, “ she bringing him up." The specific phraseology, “ she bringing him up,” limits the trust to the wife personally ¡ and an expression more exclusively appropriate to this object) could not have been selected.

The manifest intent of the testator collectable from his will, in our judgment, maybe thus expressed. The use and improvement of one third part of my real estate I give to my wife, for her personal benefit, so long as she shall livej and if my son should die without issue of his body, before he attains twenty-one years of age, she shall have the use of all my estate. But if my son shall live, during his minority, his mother shall be his guardian ; and to enable her to fulfil the duties of this relation, she shall receive, without account, the rents and profits of my estate not above disposed of. Subject to this trust, it is my will, that all my property shall vest in my son Joel, and be his for ever.

Conformably with this construction, the real estate devised was not a term in Mary Ann Everts, but a mere personal trust or confidence, which ceased at her death. In other words, a fee, immediately on the testator’s death» vested in his son, subject to a personal trust or confidence reposed in his mother.

The intention of the testator is collectable, from the apparent purpose, for which the use of his estate, during his son’s minority, is given tb his mother. It is collectable, from the reasonableness of it, the duty of M. A. Everts, and the means of performance, being designedly commensurate. And as the construction given is forced upon the mind by every consideration, arising from the relation of the parties, and suppo sable views of the testator ; so it is indispensably necessary, to avoid the most obvious absurditv. For, wlio can believe, that the testator intended to bequeath his son to an unknown guardian, and to grant to him the improvement of all his estate, as a compensation for his services ? This, unreasonable as the supposition is, presents but a partial view of the subject. For, on the construction contended by for, the defendant, it might happen, that the mother and son having died, for fifteen years or more, the testator’s estate should be enjoyed, by aliens in blood. In the mean time, his brother’s son could take no benefit of it, although he is the declared object of the testator’s bounty.

The intention of the testator having been ascertain ed, there is an end to all further inquiry, as no rule of law will be violated by carrying it into effect.

“ In the construction of wills, adjudged cases may very pro- <£ perly be argued from ; if they establish general rules of “ construction, to find out the intention of the testator.” But, « ’tis so plain upon the true intent and meaning of this will, « that it is quite unnecessary to cite cases upon it.”

Of those which, on the argument, were adduced, some notice, however, shall be taken, as they most strikingly confirm the construction which has been given.

In the second and third volume of Leonard’s reports, there are two anonymous cases, of which the following is a statement :

A. devised, that his land should descend to his son, but that his wife should take the profits until his full age, “ for his education and bringing up..” The wife married, and died. It was resolved, that the second husband should not have the profits. “ Nothing is devised but a confidence, and “ the wife is a guardian or bailiff to the infant.” The parallel between these cases and the principal one is so obvious, as to render all observation superfluous.

The next case cited was that of Lomax v. Holmeden. Mr. Lomax, by will, devised all his lands and tenements to a trustee, and his heirs, to the use of his wife for life, she paying 2QQl.fier annum to the testator’s son, Caleb Lo-max, until his age of forty years ; and in case the wife should die before that period, tjien to his daughters, and their heirs, they paying the same sum unto Caleb Lomax, until his age aforesaid : “ The testator hoping, that his son Caleb ’mould, by that time, have lived to see his folly” After which, the testator devised the premises to Caleb for life, and from and after his death, to the use of his first son, and the heirs male of his body. The testator died ; the wife also died. Caleb married, and had a son, (the plaintiff.) but died before Ms age of forty years. The bill was brought for an account of the profits of the premises, from the death of Caleb, the plaintiff’s father; and the question was, whether the estate devised to the testator’s daughters should subsist, now Caleb was dead, until such time as he should, had he lived, have attained to his age of forty ?

It was argued by the defendants, (the daughters) that the devise created an absolute title and interest in them, until their brother should have attained forty years of age, had he lived so long. But the Master of the Rolls, (Sir Joseph Jkkyl) after time taken to consider of it, and having mentioned and commented on the cases cited, decreed, that this estate, devised to the testator’s daughters, and their heirs, determined on the death of Caleb ; and that agreeably to all common sense and reason, the interest devised must cease, when it became impossible for him to arrive at the age of forty. For, taking it literally, that the daughters should enjoy the land until Caleb should attain to bis age of forty, this would be to make them hold forever, because Caleb, having died before that age, could never afterwards attain to it. If, however, the estate or interest were created for a particular purpose, as to constitute a fund for payment of debts ; (which was Boraston’s case) there, since the sons might die the next day, or soon after the testator, it would be very hard that such an event, occasioned purely by the act of God, should defeat the fund provided on purpose for the benefit of creditors : and therefore, in aid of the honest intention of the testator, who may be supposed to have computed the time wherein the profits of the estate would be sufficient for that end, the judges, by a liberal interpretation, have concluded, that the devisor meant, that the devisee, or executor, should have the land, for so long time, as the son, if he had lived, should have arrived at the age mentioned ; but in all cases “ when no such intention appears, the estate or interest “ would absolutely determine by the death of the party un- “ der the age specified in the will. That such construction “ seemed the more just in the present case, as the reason ap- “ peared why the testator created this interest by his will, “ until his son should attain to the age of forty years, name- “ ly, in order to guard the estate against the ill conduct and “ extravagancy of his son, the will saying, the testator “ hop- edy by that time, his son would have seen his folly”

This determination of a case, in several respects very-similar to the principal one, is forcible to show, that Mary Ann Everts had no term for years in the estate devised ; and that the testator, intending merely to put his son under the guardianship of his mother, ii is fit that his last will should be construed, in subserviency to that object.

The case of Mansfield v. Dugard clearly evinces, that - the wife of the testator (M. A. Evens) had no term in the demanded premises. It was a devise to the wife of the testator, till his son and heir apparent should attain twenty-one years of age, and then to his son. The son died at thirteen years old, and the wife continued to possess the estate until her son, had he lived, would have been twenty-one years of age. On a bill brought by the heir at law, against the wife, for an account of the profits after her son’s death, it was decreí d accordingly », although the wife was executrix, yet the estate not “ having been devised for payment of debts, “ nor any creditors or want of assets appearing, it was held “ by the Lord Chancellor, that the wife’s estate determined “ by the death of the son, and. that the remainder vested, fire- senlly in the son ufion the testator's death, and was not lo ex- \ feet, till the contingency of his attaining his age of twenty-one “ years should hafl/ien.”

All the cases prove, that the estate of Joel Everts, in the property devised, did not remain in contingency, until his coming of age, but vested immediately in him. on the death of the testator. To this purpose the judgment of the court in Hayward v. Whitby, is explicit. In that case, the testator devised his messuages and tenements to Thomas Hayward and John Bates, and the survivor of them, and the heirs of the survivor, in trust, to employ the rents and profits thereof, for the maintenance, education, and bringing up of Thomas and John Hayward, during their minorities ; and •when and as they should respectively attain their ages of twenty-one, then to the use and behoof of them the said John and Thomas and their heirs equally, Thomas died before the age of twenty-one. The heir at law ( Whitby) entered into possession of his moiety ; and John, now of age, brings ejectment, claiming the moiety of his deceased brother, as well as his own proper moiety. The question was, whether the estate vested immediately in the two nephews, upon the death of the testator, or remained in contingency, till their coming of age respectively ¡ The Court were ofopinion, that ¡he estate immediately vested in the two nephews ; and that there was no limitation of their interest, but only a limitation, 6f the trust during their thinority. In other words, that it was an immediate gift to the two nephews, with a trust to be executed for tlieiv benefit, during their minority.

The same expression, with an alteration peculiarly adapted to the principal case, expresses our opinion oil the manner and effect of its application. The testator gave to his son Joel Everts his estate immediately on his death, with a trust in his mother Mary Attn Everts, to be executedJor the benefit of her son, during Ms minority, if she showkl So Mg live.

Cases have been cited for the defendant in error, under the impression, that they established a term in the mother, by virtue of the devise, limited by the time when Joel Everts should, or might, attain the age of twenty-one years. A little attention will show, that they do not support the purpose for which they were adduced. Waiving all observation on the peculiar phraseology of some of them, which was one ingredient in their determination, it is sufficient to remark, that they differ from the principal case in these particulars : either they were devises of property until the principal devisee should attain a certain age, without any expression which would even imply a limitation of the period in any possible event ; or, superadded to the bequest, they evinced, that the testator designed, for the payment of his debts, or other reasonable cause, that the devisee should be vested with an interest in the devised premises, until the time mentioned should expire. In other words, the eases effectuate the manifest intent of the testator.

In the first class of the decisions referred to, may be comprised Dedicates case, and Taylor v. Biddall. The former was a devise to the testator’s wife, during the nonage of his heir ; and the latter, a devise to A, until B. should attain twenty-one, and after that to B. Nothing is there to shew, that the testator placed the estate in the hands of the devisee, for the purpose oi' maintaining and educating his son, or with any other intent, than for her sole and exclusive use and enjoyment.

In the other class, may be included Boraston’s case, Balder v. Blackburn, Courthope v. Heyman, Stile v. Thompson, and Smith v. Havens.

In the case first mentioned, as was justly observed in Lo-max v, Holmedon, the devise created a fund for the payment of debts ; and to accomplish this object, it is clear the testator intended, that the devisee should hold this estate, until the expiration of the time limited. Balder v. Blackburn was a devise to the wife, until the daughter should attain eighteen years, without account, and she paying fines and quii-rents. The latter expression unquestionably indicates the intention of the testator. In Courthope v. Heyman, the testator appointed M, Robinson his ''editor, to take the rents and profits of his land, for, and i, u’ds, the maintenance of Ms respective children, till tney became of full age respectively. The executor died before the trust was completed, and his executor was adjudged to have an interest in the land until the pu rpose of the testator was accomplished. Stile v. Thompson presents the case of a devise to executors, until the full . age of the heir, to pay debts and legacies, and to educate children. And the ease of Smith v. Havens was a devise to the wife, until the testator’s son should attain twenty-one years of age, “ to bring up Ms children.”

A particular comment on every case cited is obviously needless. Sufficient it is to remark, that the devises, upon the face of them, bear incontrovertible marks of the testator’s intention, and that the construction given was requisite to effectuate it. . ,

Finally : The intention of the testator in the principal case warrants the claim of I.is son ; there is no rule of law violated by permitting it to prevail ; and the cases cited are in entire coincidence with our opinion. Of consequence, the judgment of the Superior Court, in this case, must be reversed. 
      
      
        Cane. 12 Nov. 1748. Reported 1 Ves. 142, and 2 Atk. 246, 570, 577. Cited by Buller J. in Doug. 341, Hodgson v. Ambrose.
      
     
      
       1 Burr. 233, Hayward v. Whitby.
      
     
      
      
         2 Leon. 221, and 3 Leon. 78, determined amis 1574 and 1579.
     
      
       3 P.Wms. 175 before Sir Jostra Jiíkyí., Master of th* Rolls, anno 17.32.
     
      
       1 Eq. Ca. Abr. 195, pl. 4, Hil. Term, 1713, S. C. Gilb, Eq. Rep. 36.
     
      
      
         1 Burr, 228, Hil, Term, 1757.
      
     
      
      
         3 Leon. 9, Mich. Term. 1567.
     
      
      
        2 Mod. 369, Mil. 29 & 30. Car. 2. in C. B.
      
     
      
       3 Rep 19, Hill. 29 Eliz. in B. R.
      
     
      
      
         Hob. 285, Trin. 17 Jac. 1.
     
      
      
        Cart. 25, Trin. 17 Car. 2 in C. B.
      
     
      
      
        Dyer 210, pl. 24, Hill 4 Eliz.
      
     
      
      
         Cro. Eliz. 252, Mich 33 & 34 Eliz. in B. R.
      
     