
    
      William Evans and others vs. Hugh Godbold and others.
    
    Testator Raving a -wife and six children, who all survived him and were his heirs at the time of his death, devised and bequeathed oertain lands and chattels to his wife for life, and after her decease, “ to be equally divided among my surviving heirs, share and share alike.” One of the children died in the life time of the widow, tenant for life, without issue, and another died in her life time leaving issue, who, with the four children who survived her, were the heirs of the testator at the death of the tenant for life: — Held, that by the term surviving heirs the testator meant such persons as at the termination of the life estate should be his heirs; and, therefore, that the issue of the deceased child who survived the widow and the four children who also survived her were the persons entitled as remaindermen.
    Where there is a devise upon the contingency of survivorship, and a precedent life estate is interposed, upon the termination of which the survivors are to tako, the period of survivorship is referred to tho termination of the life estate, and not to the death of the testator.
    In this State, except as to estates not within the statutes of distribution, tho term heirs means distributees, or hccredes facti under those statutes.
    Where a testator uses a technical term he is presumed to use it in a technical sense, unless a special intent to the contrary is manifested by "the context.
    
      Before Dargakt, Ch., at Marion, February, 1853.
    This case will be fully understood from the circuit decree and the opinion delivered in the Court of Appeals. The circuit decree is as follows :
    Dargan, Ch. The late'General Thomas Godbold, of Marion district, by his last will and testament directed certain lands of which he was seized at the time of his death, to be sold by his executors. These lands are particularly described in the will, which is made an exhibit of the bill. The will makes no disposition of the proceeds of the sale, and though more than twenty-five years have elapsed since the decease of the testator, the executors have not exercised the power vested in them of selling the said lands. The omission, I imagine, has not been a culpable one. In fact, one of the executors, Charles F. God-bold, died soon after the decease of the testator. In the meantime the lands in question have descended to the heirs at law of the testator, including the widow, and the title remains vested in them. If a sale had been made in pursuance of the directions of the will, the proceeds would have been distributed among the heirs at law of the testator under the provisions of the statute of distributions. And as the lands have not been sold in the manner contemplated by the testator, his heirs at law are now entitled to a partition of said lands in the same proportions. The bill has been filed in part for this object. And all the parties in interest are properly before the Court. It is ordered and decreed that a partition be made of the intestate lands of the said Thomas Godbold, among his heirs at law, and the representatives of such of them as have subsequently died, according to their respective rights under the statute of distributions of this State. And it is further ordered and decreed that any of the parties in interest have leave to apply at the foot of this decree for a writ of partition to carry the same into effect.
    The said Thomas Godbold, by his said will, devised and bequeathed, or as he expressed it, loaned to his wife, Sarah God-bold, for her life, certain real and personal estate. The land is particularly described in the will by metes and bounds. He gave her. in this way the seventh part of his negroes, which •were to be separated from his other negroes, and set apart for her in a manner specially directed. This was done in the manner prescribed, and the widow had possession of her share of the negro property, which she enjoyed during her life. In like manner he gave her a horse, bridle and saddle, five cows and calves, fifty dollars worth of hogs, ten head of sheep, one yoke of oxen and a cart, one hand mill; also all his household and kitchen furniture, suitable plantation tools, a chair or gig to be purchased by his executors out of his estate for her, and provisions for one year.
    In a subsequent part of the will he says: “ It is my will and desire that all the property I have loaned my wife for her natural life, after her decease for it to be equally divided among my surviving heirs.” There is no other part of the will that has reference to this portion of his estate.
    In the early part of the current year the widow of Thomas Godbold, the said Sarah Godbold, departed this life, intestate, in possession of the lands and negroes given to her by her husband’s will, and also of other negroes and other personal property, which she held in her own absolute right. As regards the latter there is no difficulty. Her own estate which she left is divisible among her heirs at law, according to.their respective rights under the statute, at a proper time. It is ordered that the bill be retained for this purpose, and that after the expiration of a year from the decease of the said Sarah, any party in interest have leave to apply for a partition of said negroes. It is further ordered, that the accounts of the administrator be referred to the Commissioner, and that any balance of assets that may be found in his hands be distributed among the dis-tributees of the said Sarah Godbold, according to their respective rights, after the expiration of a year from the death of the said intestate.
    The only serious question in the case arises on the construction of that part of the will where the testator disposes of the remainder in the property given to his wife for life. This he directs, at her decease, to be equally divided among his surviving heirs. After the death of the testator to the time of the decease of his wife, no change occurred in his family, with two exceptions. He left the following children: Charles F. Godbold, who died soon after the testator’s death, intestate, without issue, and unmarried; Hugh Godbold, John M. Godbold, Sarah Ann, who afterwards intermarried with the plaintiff, William Evans; Mary, the wife of the plaintiff, James Haselden ; and Elizabeth, who first intermarried with John Haselden, and after his decease, with the defendant, David Monroe. She predeceased her mother, Sarah Godbold, the tenant for life, leaving children as follows: Sarah Jane, who has intermarried with C. D. Evans; Hugh G. Haselden, Cyrus B. Haselden, James Monroe, and Franklin M. Monroe. The latter are defendants. And the question is, whether the children of the testator’s deceased daughter are entitled to share in the division of the property given by the testator to his wife for life.
    
      Whom does the testator mean to designate by the words, “ his surviving heirs ?” We will leave out of. view for a moment the important qualifying participle, " surviving,” and suppose that the testator had said, that the property after the death of his wife should be divided among “ his heirs.” By this term, he would mean his children; for no other persons could bring themselves within the description. He had no other heirs than his children, and therefore must have meant his children. The children of Mrs. Monroe can in no point of view be regarded as the heirs of Thomas Godbold, the testator. If the testator had given the property at the death of his wife to his heirs generally, a term which I have shewn to be in this instance equivalent to children, then Mrs. Monroe would have taken a vested remainder ; and this on her death before the tenant for life, would have been her estate and gone to her heirs at law and distribu-tees. Her children and husband would have succeeded to her share as her heirs, and not as the heirs or divisees of Thomas Godbold, the testator. If the testator had declared, that at the death of his wife this property should be equally divided among his surviving children, upon the present state of the authorities, I presume, there could scarcely be a question that none of the children could take but those who survived. And I think it demonstrable that the word “ heirs,” occurring as it does in this clause, can mean nothing but children.
    But to what period does the event of survivorship relate ? In my judgment it relates in this instance to the period of distribution, which was to take place on the death of the tenant for life.
    The word “ surviving ” is one of strong import. It is regarded :as technical in some of the cases. It cannot be considered as idly used by the testator. He must have attached to it some meaning. He. obviously intended that such, and only such of his heirs (or children) should take as were living at some future period contemplated by him; otherwise, the word “surviving” has no meaning, and might as well be expunged from the will.
    There are but twq periods to which, by the terms of this will, the contingency of survivorship can possibly be referred. One of these is the death of the testator himself; the other is the death of his widow, the tenant for life. Her death is prescribed as the period of distribution.
    When the period of distribution, is left uncertain and indefinite by the will, and no time fixed to which it can be referred, as when the testator gives property generally to his surviving children, or to his children or the survivor of them, or to the survivors of any persons or class of persons named, it is unquestionably a sound and rational construction to limit the event of survivorship, or the estate dependent on it, to the time of the testator’s own death. For under these and similar words, all who were surviving at his death would be entitled to take. And it would be unreasonable, unless such intention clearly appeared, that the estates of those who should first afterwards die, though they might leave issue, should be divested. In such cases, not to limit the. period of survivorship to the death of the testator, would be to divest the estate of the first decedent away from the devisees, at however remote a time, and to vest it in the survivors; and soon at the death of each, until the whole estate devolved upon the last survivor. To avoid this result, the survivors at the testator’s death are held to take absolutely. The Court inclines to a construction which favors the early vesting of estates, and against a construction which divests an estate already vested.
    The principal ground, however, upon which the Courts adopted a construction that referred the contingency of survi-vorship to the death of the testator, was, that the words directing a partition created a tenancy in common, and the right of survivorship was inconsistent with that estate. This reasoning has been condemned as illogical and in conclusive, for there isno reason why a testator may not, if he so wills and his meaning be clearly expressed, create first a; tenancy in common, and on the death of one or more of the legatees, a right of survivor-ship among the others — not as in cases of joint tenancy, but by way of limitation, to take effect upon the event of survivor-ship within a given time.
    Unsatisfactory and insufficient as this reasoning is, it has been resorted to in another class of cases to which it is still more inapplicable.
    “Where, however,” says Jarman, 2 vol. 633, “the gift was not immediate, (i. e. in possession) there being a prior life estate, or other particular interest carved out, so that there was another period to which the words in question could be referred, the point was one of greater difficulty. In these cases, as in those of the other class, the Courts for a long period uniformly applied the words of survivorship to the death of the testator, on the notion (as already observed) that there was no other mode of reconciling them with the words of severance creating a tenancy in common. The weight ascribed to this argument, however, was still more extraordinary in these than in the former cases; for even if indefinite survivorship were inconsistent with a tenancy in common, (but which clearly it is not) yet surely there could be no incongruity between such an interest, and a limitation to the survivors at a given period. Nevertheless, decision rapidly followed decision, in which, on reasoning of this kind, survivorship was held, in cases of this sort, to refer to the period of the testator’s decease.”
    The learned author then proceeds to cite and comment on a number of cases in which the survivorship was held to refer to the death of the testator, though a precedent life estate was interposed, at the termination of which distribution was to be made. He, in the next place, traces with his characteristic ability and research, the gradual progress of the revolution in the English Courts, as to the application of the doctrine in the class of cases last remarked upon. This was brought about in the way such changes are usually effected. The rule was sapped and undermined by expressions of dissatisfaction on the part of the Judges, as to the sufficiency of the reasoning by which it was supported, and by nice and finely drawn distinctions, taken with the view of avoiding the application of the rule in particular cases; until thus weakened and narrowed down, it was at length boldly discarded and completely overthrown in Cripps vs, Wolcott, 4 Mad. 11, and the succeeding cases.
    In Cripps vs. Wolcott, the testatrix gave her real and personal estate to her husband for life, and directed, that after his death, the personal property should be equally divided between her two sons and her daughter, and the survivors or survivor of them, share and share alike. One of the sons died in the life time of the husband, and the daughter and the surviving son claimed the whole. Sir J. Leach said, “ It would be difficult to reconcile every case upon this subject. I consider it, however, to be now settled, that if a legacy be given to two or more, equally to be divided between them, or to the survivors or survivor of them, and there be no special intent to be found in the will, the survivorship is to be referred to the period of division. If there be no previous interest given in the legacy, then the period of division is the death of the testator, and the survivors at his death will take the whole legacy. This was the case of Stringer Phillips, 
      
      . But if a previous life estatefbe given, then the period of division is the death of the tenant for life, and the survivors at such death will take the whole of the legacy. This is the principle of the cited cases of Russell vs. Long, (4 Yes. 551, Summer’s edition, notea) Daniell vs. Da-niell, (6 Yes. 297) and Jenour vs. Jenour, (10 Yes. 561.) In Bindon vs. Lord Suffolk, (1 P. W. 99) the House of Lords found a special intent in the will, that the period of division should be suspended until the debts were recovered from the crown, and they referred the survivorship to thatj period.” “ Here,” concludes the learned Judge, “ there being no special intent to be found in the will, the terms survivorship are to be referred to the death of the husband, who took a previous life estate.”
    This case was followed by that of Gibbs vs. Tail, 8 Sim. 32, and by that of Blewitt vs. Stauffers, cited 2 Jarm. Wills, 650, when the principle of Cripps vs. Wolcott was adopted. And again in Pope vs. Whitcombe, 3 Russ. 124, (an earlier case than the last) where testatrix gave the residue of her estate to her brother during his life, and after his death in trust for four persons named, and the survivors or survivor of them share and share alike; of these two died during the life of the brother. And Lord Eldon held that they did not take vested interests in any part of the residue, but that the whole belonged.to the two survivors.
    The rule established by these latter decisions seems to be so reasonable, and so consistent with every principle of a sound interpretation, that I am indisposed to follow the earlier Eng-’ lish cases, more especially, as the doctrine upon which they were decided, based as it is upon reasoning confessedly unsatisfactory, is now abandoned by the courts in which it originated.
    The conclusion at which 1 have arrived in the construction of this part of Thomas Godbold’s will, is, that the heirs of Mrs. Monroe are entitled to no share or part of the property given by the testator to his wife for life, and that only such of the children of the said testator surviving at the death of the tenant for life, are entitled to take said property, equally to be divided among them. And it is so ordered and decreed. It is further ordered and decreed that any party in interest may apply at the foot of this decree for a writ of partition to divide the said property in conformity with this decree.
    I am not informed at what period of the year the tenant for life died. Any question that may arise as to the rents and profits of this property after the death of the tenant for life, is reserved.
    The defendants, C. D. Evans and wife Sarah Jane, Hugh G. Haselden, Cyrus B. Haselden, James C. Monroe, and Franklin M. Monroe, appealed, and now moved this Court to modify the circuit decree, on the grounds:
    1. Because his Honor erred in construing the words “surviving heirs,” in Thomas Godbold’s will, to mean surviving children, and thereby excluded the defendants, as children of Mrs. Elizabeth Munroe, a daughter of the testator, who survived him but predeceased the tenant for life, Mrs. Sarah Godbold, from any interest in the negroes loaned to the said Sarah Godbold for life, and bequeathed after her death to the “ surviving heirs ” of testator.
    
      2. Because his Honor’s decree contravenes the special intent of the will, plainly inferrable from the context, that the testator intended to designate by the words “ my surviving heirs ” any who may come under that description at a certain, but an undefined future period, viz: the death of the tenant for life ; and therefore whatever of technical import may be expressed in the words “surviving heirs ” should be controled by the intention of the testator.
    
      Dudley, Thomas Evans, for appellants.
    
      Harllee and McDuffie, contra.
    
      
       1 Eq. Ca. Ab. 292.
    
   The opinion of the Court was delivered by

Wardlaw, Oh.

Thomas Godbold, by his will, gave to his wife certain lands and chattels and one-seventh of his slaves, and to his daughters certain pecuniary legacies, and to each of his six children one-sixth of the residue of his estate. As to the portion given to the wife for life, the will makes further provision in the following terms: “ It is my will and desire, that all the property I have loaned to my wife for her natural life, after her decease for it to be equally divided among my surviving heirs, share and share alike ; also all the property that I have loaned to my sons and daughters before mentioned, after he, she or they depart this life, the portion allotted to he, she or they shall go to the lawful issue of their bodies ; and if .either of my children shall depart this life, leaving no lawful issue of their bodies, then the whole of that part of my estate allotted to he, she or them should be equally divided among my surviving heirs.” Elizabeth Monroe, daughter of the testator, survived him, but died in the lifetime of the widow, tenant for life, leaving five children yet living; and the controverted question in this case is, whether these grand-children are entitled to any share of the estate given to the widow for life.

It cannot be disputed that if Thomas Godbold had died intestate at the date of his wife’s death, Mrs. Monroe’s children would' have been among his immediate heirs as representing their mother. The 2d clause of the 1st section of the Act of 1791 (5 Stat. 162) provides that “The lineal descendants of the intestate shall represent their respective parents, and be entitled to receive and divide equally among them the shares to which their parents would respectively have been entitled, had they survived the ancestor.” By the common law of England, the term heirs means, (with exceptions as to cases of coparce-nary and gavelkind, &c.,) the persons who singly and successively inherit the real estate; but in South-Carolina it cannot mean, except as .to estates without our statutes of distribution, anything more than distributees, or hceredes facti under these statutes. Seabrook vs. Seabrook, McMul., Eq. 205 ; Templeton vs. Walker, 3 Rich. Eq. 543. Even in England, when ‘heirs’ is applied by a testament to personal property, it is understood to designate the next of kin, as they are the only persons entitled by the statute of distributions in that nation to succeed to that kind of estate. Holloway vs. Holloway, 5 Ves. Jr, 399. Vaux vs. Henderson, 1 Jac. & Walk. 388, n. With us, the succession to personalty and the inheritance of realty, proceed to the same persons; and heirs universally means, as to estates to which decedents are beneficially entitled, the persons entitled to distribute among them the estate of an intestate. Testators may employ heirs as a word of purchase and not of limitation; and where they employ it as a.word of purchase, they may add' other ingredients or qualifications, and the devisees must answer the description in all particulars. Thus, although the established doctrine is, that whoever claims to inherit under a gift to heirs male, must convey his descent wholly through heirs male, it is otherwise where heirs male take by purchase. If lands be devised to A. for life, and after his decease to the heirs male of the body of B., and B. has a daughter who dies in the lifetime of her father and of the tenant for life, leaving a son who survives both A. and B., this grand-son shall take the estate, as he fulfils the description as to heirship and sex, of being the heir male of B. Co. Litt. 25; Hobart, 31; 2 Jarm. 9. So in the present case, persons claiming the estate of the testator given to the widow for life, must bring themselves within the description of heirs of testator surviving the widow. Unquestionably it is competent for a testator, if he thinks fit, to limit any interest to such persons as shall at a particular time sustain a particular character. Thus, in the present instance, the testator might have given his estate to such persons as would have been his heirs if he died intestate at the date of his wife’s death; and the only debateable point is, whether he has expressed the intention so to give.

This Court is satisfied with the conclusion of the Chancellor, upon the argument and authorities contained in the circuit decree, that the persons intended to take, under the disposition in question, are such only as fulfil the description of objects at the termination of the precedent life estate. It remains for us to enquire, what objects at that epoch are designated by the testator under the terms “ my surviving heirs.”

When a testator uses a technical term, he is presumed to use it in its technical sense, unless a special intent to the contrary is manifested by the context. The testator here must be presumed to employ the term heirs to designate those persons who would have been entitled to his estate by succession and inheritance, under the statutes of distribution, upon the death of his wife, unless he has exhibited in other portions of his will his intention to use the term in the sense of children. It is not pretended that testator, in any part of his will, employed the term heirs in a popular and deflected sense, except that in directing division of the residue of his estate into six equal parts among his six children, he says that the first allotment shall be “ for the eldest heir, my son Hugh Godbold.” The will is inarti-ficially drawn, and the testator was probably inops consilii. It may be that he had some vague notion of the right of primogeniture, as still existing. However this may be, he corrects the ambiguity of the phrase ‘ eldest heir,’ applied to the eldest son, by adding in immediate sequence ‘my son Hugh Godbold.’ This shows that he did not consider 'eldest heir’ as unequivocally describing his eldest son; and the phrase taken altogether does not justify the inference that testator confounded heirs with children. In all the other portions of his will, the testator describes his children by the terms sons and daughters, and nowhere manifests his ignorance of the technical import of heirs. Take, for example, the whole of the clause connected with the present contest, which clause is cited near the beginning of this opinion. In this clause, the testator carefully distinguishes heirs from sons and daughters and children, and manifests his purpose of bounty to the issue of his children. In Packham vs. Gregory, 30 Eng. C. R. 396, Sir James Wigram says: “ I will not without reason adopt a construction which would or might be attended with the consequence, if one legatee should die during the tenancy for life leaving issue, of excluding that branch of the objects of testator’s bounty. The consequence of disinheriting issue is one ground on which the Court seeks, if it can, to avoid a construction attended with it.”

It is properly suggested in the circuit decree, that the term ‘surviving’ in application to heirs of testator, would be unmeaning if referred to heirs at testator’s death. In that case, heirs standing by itself would have precisely the same meaning as surviving heirs. But it is not true that ‘ surviving heirs ’ is a mere pleonásm when referred to survivorship at the ‘death of the tenant for life. Without the use of it, the heirs of testator at his death would have taken a vested interest, transmissible to their representatives, and widowers and widows of the children, not heirs of the testator, would have taken shares. Leeming vs. Sherratt, 24 Eng. C. R. 14; Bankhead vs. Carlisle, 1 Hill, Ch. 358. Heirs of the same person may be very different individuals at different epochs. In Buist vs. Dawes, 4 Strob. Eq. 38 ; 4 Rich, Eq. 415, in note, where, after precedent particular estates, the estate, real and personal, was given contingently to J. S. in fee, who died during the subsistence of the particular estates, it was held that those persons who were the heirs and dis-tributees of J. S. at the time of his death, and not different individuals who were his heirs at the falling in of the estate for enjoyment, were entitled to his estate by descent and succession. Hicks vs. Pegues, 4 Rich. Eq. 413. The converse is a corollary from this doctrine ; and if his heirs at the termination of the particular estate, be designated by a testator as purchasers of the remainder, they take in exclusion of heirs at his death. The grand children in the present case claim as heirs of the testator, and not of their mother — in substitution of the parent, and not through her. If the devise had been to children of the testator who might survive his widow, it may be granted that the devise would have been contingent upon their survivorship of the widow, and that children dying in her life time were not devi-sees of any transmissible interest, and that it could not be ascertained until her death who were the devisees. But the actual devise is to surviving heirs and not to children, and grand-children are heirs of the testator. Still under the description of heirs they take by purchase, and not by descent.

It is argued, that testator means children by the term heirs, because when his will was written children were his heirs apparent, and at his death children were his only heirs. This is not strictly true in point of fact, for his widow was one of his heirs. Passing this by, why should testator be supposed to speak exclusively of the state of things existing at his death 1 He certainly directs division of this portion of his estate to be made at a future, fixed yet indefinite, time, and among objects who should then fulfil the description; and it seems illogical to argue that he did not contemplate any change in the heirship by future contingencies. He could hardly have reasoned that because children were his heirs at his death, children must be his only surviving heirs at the death of his widow. Whenever one disposes of his estate by gift in futuro, the terms of donation naturally receive construction and application according to the state of things when the disposition takes effect.

A very perplexing question might have been involved in this case as to the extent of the shares of the grand-children, when allowed to come in under the description of heirs. The Court of Errors, in Templeton vs. Walker, 3 Rich. Eq. 543, established the doctrine, that wherever resort must be had to the statutes of distribution to ascertain the objects of gift, the statutes must also determine the shares of the donees, unless the instrument of gift indicates that a different distribution shall be made. The statute of 1791 provides that grand-children shall take among them the share to which their parent, if surviving, would have been entitled; but here the testator provides that his surviving heirs shall take equally, and share and share alike.

It is unnecessary to determine in this case, whether the grandchildren come within the general rule or within the exception, inasmuch as by their pleadings and through their counsel here, they claim among them no more than the share to which their mother would have been entitled if she had survived the life tenant. No fair argument, however, as to the meaning of testator in this donation can be founded on the assumption of a conclusion doubtful in itself, that upon our construction the grandchildren must take per capita with the children of testator. If this result follow, it is only because we interpret the testator as expressing his intention to this effect, whether ignorantly or wilfully. It would afford, at most, another of many instances in which the conjectured intention of testators is defeated by adherence to settled rules of construction, framed to define the general intention of testators, and prevent the necessity of bringing the construction of every will into litigation. It is for the good of the State that such general rules should prevail, and that every case should not depend on its circumstances and the flexible discretion of the tribunal.

It is adjudged and decreed, that the children of Mrs. Monroe are entitled to take among them the share in the estate devised to Sarah Godbold for life, which their mother would have taken if she had survived said tenant for life.

It is further ordered that the circuit decree be modified in this particular, and in all other respects be affirmed.

Johnston and Dunkin, OC., concurred.

Dargan, Oh.,

dissenting. I wish briefly to state, that I have seen no reason to change the opinion .which I have expressed in the circuit decree.

The testator directed that after the death of his wife, the property given to her for life should be “divided among his surviving heirs, share and share alike.” This language must be considered as having been spoken at the time of the testator’s death. And thus spoken, without further explanation, or qualification, it could only embrace the persons who were his heirs at that time.

If the testator had declared, that after the death of his wife, the property should be divided among the persons who might be his heirs at that time, or had used any words of similar import, then the construction given by this Court would be correct. But the will may be scrutinized in vain for any manifestation of such intent.

It is perfectly obvious, that the construction which the Court has given to this part of the will, attaches no meaning to the-word “ surviving.” This construction makes the meaning the same as if the testator had directed the property to be divided among his heirs generally, and the word “ surviving ” had been omitted. Yet it must be clear, that the testator did mean something by employing that expressive word.

The construction given in the circuit decree makes the words surviving heirs”, spoken by the testator at his death, mean his surviving children. The context of the will affords some indication of the meaning which the testator attached to the word “heir.” In directing the manner in which the property given directly to his six children should be divided, namely, that it should be divided into six equal parts, and drawn by lot, he directs that the first drawn lot shall be assigned to his “ eldest heir,” Hugh Godbold, &c. He thus indicated the meaning which he attached to the word heir, using it as a synonime with child. It is more than probable that when he used the word again in the clause under construction, he attached to it the same meaning. It is reasonable to suppose that a word occurring several times in the same instrument, written by the same person, has been used each time in the same sense.

Whatever the testator may have meant by the words his surviving heirs, I feel very confident that the construction adopted by the Court is not the true one. The results of that construction are perfectly startling, and plainly shew that such could not have been the intention of the testator.

When the Court decided that the issue of the deceased child should be let in, a per capita distribution among them and the surviving children became inevitable. The words share and share alike make it a tenancy in common.

It was thought a hardship, (such was the argument of counsel,) that the issue of the deceased child should be excluded: and it was contended, that inasmuch as the testator had given the mother an equal share in the first distribution after his death, it follows, that he intended that her issue, however numerous they might be, should come in for a per capita division of the estate in remainder, and each one of them take an equal share with his own surviving children. The testator, in my opinion, has not said so, either expressly or by implication.

It is admissible, (and is so allowed to be,) to test the correctness of a construction by its results, actual, probable, or even possible. Let us first test this construction by its actual results. The surviving children of the testator are four : the children of his deceased daughter, Mrs. Munroe, are five. The construction given by this Court assigns to the children of Mrs. Munroe, the testator’s grand-children, five-ninths of the estate, and assigns to the four surviving children of the testator among them only four-ninths. Such an intention, I am sure, was very foreign from the testator’s mind. It does not alter the case, as to the question of construction, because the Court, on the statement of counsel that the Monroes claim no more, (though some of them are infants,) give them only the share to which their mother, if living, would have been entitled.

But let us test this construction yet further by results not improbable. Suppose the testator’s family to have been very prolific. Suppose that five out of the six children had died before the tenant for life, leaving a numerous offspring, in the aggregate 20, 30 or 50 in number. Suppose the surviving child of the testator also to have had a numerous family. Then upon this construction each one of those numerous descendants of the testator would come in for an equal share, restricting the surviving child, with his numerous family, (all descendants of the testator, to a 20th, 30th or 50th part, as the case might be. Such could never have been the intention of the testator. This construction makes the testator give the preference to his remoter descendants over his' own children, and this is not in accordance with nature. It is more natural to suppose that he had excluded the remoter issue, and given the whole to Ins own surviving children. This, I think, he has done, or intended to do.

Decree modified. 
      
       4 Hare, 396.
     