
    *Cowan et als. v. Epes et als.
    January Term, 1857,
    Richmond.
    Absent, Nash, J. (who decided the cause in the court below.)
    1. Case at Bar — Wills—Construction—Vesting ol Remainders. — A testator devised and bequeathed as follows: “I desire that my wife have the use of one-third of my estate, both real and personal, during her natural life, but no longer, and, at her death, that the same, with its increase, be equally divided among my children that I now have, or that I may hereafter have, and the children of such of them as may die leaving children, giving to my grand-children the portion intended for their deceased father or mother.” Held: That under this clause, taken in connection with other provisions of the will, the children of the testator, who survived him. and the children of such as died before the testator, took estates in remainder, which vested at the death of the testator, and which were not subject to be divested at the death of the widow upon the contingency of their not surviving her. (Hansford v. Elliott, 9 Heigh, and Martin v. Kirby, 11 Grat.. accord.)
    2. Same — Same—Renunciation by Widow of Life Estate —Effect.—Qtjasre. Whether the renunciation by the widow of the life estate, given her by the will, did not supersede and annul the bequest in remainder limited thereupon, and substitute the remainderman to an equivalent estate under the residuary clause of the will?
    John Epes, of the county of Nottoway, died in the year 1816, leaving a will, dated 26th January, 1816, which was admitted to probate by the County Court of Nottoway at its November term, in the year 1816. The will was as follows:
    “I, John Epes, of the county of Notto-way, being of sound and disposing mind and memory, do make and ordain this my last will and testament, in manner and form following, to wit:
    “It is my desire that my body be decently interred and a public sermon on the occasion of my death, and that my wife and family invite no person to eat and *drink with them on said occasion whom they believe to be no well-wisher of me, or whom they believe I rated as envious, malicious and of ill-will towards me, especially such of my near relations as are thus disposed, and of them I know they will readily recollect several. After funeral expenses and all my just debts are paid, I desire that my loving and dutiful wife Frances H. Epes have the use of one-third of all my estate, both real and personal, during her natural life, but no longer, and, at her death, that the same, with its increase, be equally divided among my children that I now have, or that I may hereafter have, and the children of such of them as may die leaving children, giving to my .grand-children the portion intended for their deceased mother or father; but I do not wish that my daughter Mary W. Epes, who I am told is now run off with Bartelot P. Todd to get married to him in Carolina, or her descendants, should have any part of said one-third of my estate; and it is further my will and desire that my said undutiful daughter Mary W. Epes, shall have no part of my estate of any' description whatsoever, or at any period whatsoever, she or her descendants, but that all my estate herein given to my said wife be divided among my other children and the children of such of them as may” die leaving children, in the manner hereinafter directed; and whereas it may not be agreeable to my above-named wife to, undergo the trouble of managing the one-third part of my estate above-mentioned, it is my desire that should she choose a fee simple estate of ten thousand dollars in lieu of said one-third of my estate, then and in that case my executors are to deliver off to, her the said sum of ten thousand dollars, to-ller, her heirs and assigns forever, in lieu of the one-third of my estate for life as, aforesaid. It is my desire that my' executors deliver off to my said undutiful daughter Mary W. Epes, or Mary W. Todd, if married, the one-fifth part of the judgment obtained in Eunenburg court against William Williams, deceased, and also one-fourth of the negro man Lewis, the woman Jenny and girl *Jenny that I got in right of my children by my first marriage, from the estate of their grandmother Mrs. Catharine Williams, out of whose estate said judgment also grew. I again repeat, that it is my will and desire that my daughter Mary W. Epes, or Mary W. Todd, if married, on account of the disrespect shewn in said act of marriage, have no part of my estate, either real or personal, or of any description whatsoever, that I now possess, or that I may hereafter possess, except the interest above spoken of, and to which she is entitled as heir of her said grandmother. It is my will and desire that all my estate, both real and personal, be equally divided among all my children not herein named, and such children as I may hereafter have, and the children of such of them as may die leaving children, meaning and intending that in all the clauses of this will all the children that I now have, or may hereafter haye,, share equally, except the child named Mary' W. Epes, or, if married, Mary W. Todd, to whom I bequeath no part of my estate at all, and only wish for her to have her right in the legacy from her grand-mother as aforesaid, but not one atom of my estate at this or any other period whatsoever. It is my wish that my son-in-law William B. Cowan account for the property I have advanced him only at its value when advanced, and that no increase be called in question or interest on the money I advanced him, but that he be relied on to-bring into estimation, on a division of my estate, both the real and personal estate advanced him by me, to be estimated as aforesaid as so much of his equal proportion of my estate on its division, and on this being done by him, it is my desire that he receive for his wife one thousand dollars more than an equal proportion with the rest, and this I do make him amends for any tardiness in advancements to him hitherto. It is also my desire that all my sons be well educated and instructed in the English language, arithmetic, &c. so as to be well qualified for business and accounts, and for this purpose I desire that they have one thousand *dollars each more than my daughters, except the one thousand dollars to W. B. Cowan, as above, for his wife. I wish it here understood, that when I speak of William B. Cowan, as a distributee, I mean his wife, who is my daughter. It is my desire that on the division of my negroes, that the negroes which came by my first wife be put in the lots of such of her children as are herein directed to receive, and that those that came by my present wife be put in the lots of my children by her. It is my desire that there be no inventory and appraisement of my estate, and that the court require no security of my executors, but only their own bond for the performance of their duty; and, lastly, I nominate and appoint my friends, Dr. John Fitzgerald, Archibald A. Campbell, and my son-in-law, William B. Cowan, executors of this my last will and testament.”
    The testator left a widow, Frances H. Epes, and seven children ; and his widow gave birth within nine months after his death to another child. Catharine Cowan, one of the daughters of the testator, and the mother of the appellants, married William B. Cowan, before the death of the testator. The widow, Frances H. Epes, renounced all the provisions made for her b3 the will, and took one-third of the land and slaves for life. She lived until the year 1849, when she died, leaving a considerable number of the dower slaves and the dower lands. Catharine Cowan, the mother ■of the appellants, died many years before the widow of the testator.
    William B. Cowan and Catharine his wife, by deed in the year 18 — , sold and conveyed unto A. A. Campbell and Travis H. Epes, the interest of the said Catharine in the land held by Frances H. Epes as her dower in the real estate of the testator, and on the 15th November, 1828, William B. Cowan conveyed by deed of trust to William G. Overton, trustee, his right, title and interest (in right of his wife), in remainder or reversion in and to the personal estate in the possession of Mrs. Frances Epes of Nottoway.”
    *In the year 1836, Mrs. Frances H. Epes surrendered part of the dower slaves held by her, and they were divided in a friendly suit, to which the appellants were not parties, by a decree of the County Court of Nottoway- In this suit it was assumed, that William B. Cowan and wife were absolutely entitled to one-seventh of the slaves thus surrendered, and four slaves were allotted to them and received by William G. Overton, trustee as aforesaid, and by him sold and the proceeds paid over to Edward B. Hicks, one of the creditors secured by the deed. William G. Overton, the trustee, afterwards sold the interest of William B. Cowan and Catharine his wife,’ in the dower slaves then remaining in the possession of Frances H. Epes, and Edward B. Hicks became the purchaser.
    In the year 1849, shortly after the death of Mrs. Frances H. Epes, a suit in equity was instituted in the Circuit Superior Court of Nottoway county, to obtain a division among those entitled of the dower land and slaves, in the possession of Mrs. Frances H. Epes, at the time of her death. To this proceeding the children of the testator John Epes, the children of such as had died since the death of the testator and their representatives, the purchasers under the deed from William B. Cowan and wife of Catha-rine Cowan’s interest in the dower land, and Edward B. Hicks were parties.
    The children of Catharine Cowan claimed, that, under the will of their grandfather John Epes, they were entitled to their mother’s Share of the estate; or one-seventh, she having died in the lifetime of Frances H. Epes, the tenant for life.
    In October, 1850, there was a final decree in the cause, when the court, being of opinion, “that, according to the true construction of the will of John Epes, the children of the said Epes, living at the time of his death, and any of which his wife was then enceinte, who may have been born alive, with the exception of Mrs. Mary Todd, took a vested remainder in the property given to his wife for life,” among other things ^decreed, that A. A. Campbell and Travis H. Epes, should receive one-seventh of the proceeds of the dower land, under their purchase from William B. Cowan and wife, and that Edward B. Hicks should receive one-seventh of the dower slaves, left by the widow, under his purchase from William G. Overton, William B. Cowan’s trustee. From this decree, the children of Catharine Cowan, who survived Mrs. Frances H. Epes, appealed.
    Jones and Robinson, for the appellants:
    Under this will, the question was presented, did the children of John Epes, at his death, take absolute and vested estates in the property devised and bequeathed to his wife, Frances H. Epes, for life; or did the share intended for any child, in the event of such child dying in the lifetime of the said Frances, devolve on his or her child or children, who might survive the said Frances H. Epes? It was insisted for the appellants, that, their mother having died in the lifetime of Mrs. Frances H. Epes, they were entitled to the share of the estate intended for their deceased mother. They cited 2 Jarman on Wills, 659-699; Home v. Pillans, 8 Cond. Eng. Ch. R. 434; Montgomery v. Montgomery, 2 Irish. Eq. 161; Hervey v. McLaughlin, 1 Price, 264; Galland v. Leonard, 1 Swanston, 161; Gir-dlestone v. Doe, 2 Simmons, 225; 2 Cond. Eng. Ch. R. 394; Cripps v. Wolcott, 4 Madd. 11; opinion of Lee, J., in Martin v. Kirby, 11 Grat. ; Mitchell v. Johnson, 6 Leigh, 471.
    Patton, for the appellee Hicks,
    cited Hansford et ux et ais. v. Elliott, 9 Leigh, 79; Martin v. Kirby, 11 Grat. 79, and 1 Jar-man on Wills, ch. 25, p. 726.
    
      
      Wills — Construction—Words of Survivorship.— See foot-note to Martin v. Kirby, 11 Gratt. 67, where principal case is cited; foot-note to Hansford v. Elliott, 9 Leigh 79.
    
   THOMPSON, J.

Without deeming it necessary to enter into any detailed or elaborate discussion of the question arising on this appeal, I purpose to leave in the record a very brief summary of the grounds of my *decision. If the solution of the question arising upon the construction of this will depended solely and exclusively upon the first disposing clause of the will in which the testator gave his wife the use of one-third of all his estate, real and personal, for life, but no longer, and <!at her death that the same, with its increase, be equally divided among my children that I now have or may hereafter have, and the children of such of them as may die leaving children, giving to my grandchildren the portion intended for their deceased mother or father,” the arguments of the appellant’s counsel, sustained by the modern English adjudications, would have been very persuasive, if not convincing and conclusive; but other clauses of the will render them inapposite, and bring this case within the influence of the Virginia cases of Hansford v. Elliott, 9 Leigh, 79, and Martin v. Kirby, 11 Grat. 76, and make these authorities decisive of this. Indeed, upon the whole will taken together, this is a much stronger case in favor of the vesting of the remainder in those living at the death of the testator, and not referring it to a more distant period,' such as the expiration of a previous particular estate, than Hansford v. Ellicott and Martin v. Kirby. In this case, it is doubtful, to say the least, taking into view the whole scope and peculiar provisions of this will, whether the renunciation by the widow and taking her legal thirds did not wholly supersede the whole bequest to her for life, and instead of the remainder limited on and after that bequest, substitute them to a different, though in value an equivalent estate, to wit, a legal reversion depending upon the widow’s legal estate for life by the residuary clause. I suppose there cannot be a doubt, if the widow, instead of the alternative accorded to her by the law, had elected that given her by the will, it would have had the effect of superseding the bequest for life, and virtually striking it out of the will. There would then have been no previous particular estate, upon the expiration of *which the vesting would depend, and until the expiration of which it would be suspended or postponed, to bring the case within the influence of the recent English adjudications relied on for the appellants. If the appellants must claim as reversioners under the residuary clause, I do not think it a debateable question that it gave to all the children who survived the testator a vested interest in that reversion.

But even suppose the effect of the widow’s renunciation was not to destroy or supersede the remainder given by the first clause, as in many cases it doubtless would not, and as was decided in Mitchell v. Johnson, 6 Leigh, 471, 2, 4, (a bequest very different from this,) it did not, yet, upon the question of intention, which, after all, must govern in the construction of wills, it is very apparent, from the whole will, and especially the residuary clause, that the testator intended to give whatever he did give by ?ny clause of the will to the children who survived him, and to the children of those who predeceased him leaving children. Regarding, then, the residuary bequest in the light only of an interpretative clause, and in that light it must be regarded, if no other, because so in express terms, it is decisive of the question. By it he says, “It is my will and desire, that all my estate, both real and personal,” (doubtless contemplating that the widow might either renounce and claim her legal thirds, or elect the alternative given her by the will, take the 110,000,) “be equally divided among all my children not herein named, and such children as I may hereafter have, and the children of such of them as may die leaving children, meaning and intending that in all the clauses of this will all the children that I now have, or may hereafter have, share equally, except the named child, Mary W. Epes, or if married Mary W. Todd, to whom I bequeath no part of my estate at all, and only wish for her to have her right in the legacy from her grandmother as aforesaid, but not an atom of my estate at this or any other period whatsoever. ’ ’ Other ^clauses in the will might be cited in favor of the testator’s intention to vest the estate given by the will at the period most generally contemplated by testators, their own death. But I forbear to pursue the discussion further. I have said enough to accomplish what I intended at the outset, very briefly to state the grounds of my opinion, which is, that there is no error in the decree of the court below, and that it ought to be affirmed in all things.

The other judges concurred.

Decree affirmed.  