
    Bettie Ward et al. v. L. P. Cooper et al.
    "Wmt,. Devise to “ children.” Grandchildren not included.
    
    A will, after providing for a sale of land by the executor, contained the following provision: “ The proceeds of said sale I give and devise to all the children of my sister, Barthenia Guinn, equally and jointly, and to their heirs and assigns forever, including any and all of her said children who may be living at the death of my sister Barthenia.” Held, the devise is limited to the children of Barthenia, living at her death, as a class. It does not embrace grandchildren.
    Prom the chancery court of Tunica county.
    Hon. W. JR. Trigg, Chancellor.
    . The will of Jonathan Bostick, a resident of Tunica county, who died in 1868, contained, among other clauses, the following :
    “I give and devise to my sisters, Barthenia Guinn, wife of A. B. Guinn, Elizabeth Guinn, wife of M. H. Guinn, and Nancy Bostick, jointly and equally, for and during the term of their natural lives, my tract of land known as the Beaver Dam place, situated in the county of Tunica, and state of Mississippi, containing, by estimation, eight hundred acres, more or less. . . . And at the death of my said three sisters, I direct that my executor, hereinafter named for the state of Mississippi, shall make sale of my Beaver Dam place, at public auction, to the highest bidder and best bidder, upon such time or for cash, as to him, under all circumstances, may seem best; if upon time, he will see that the purchase-money is secured by proper liens retained on the premises, as well as sufficient personal security; and the proceeds arising from said sale I give and devise to all of the children of my said sister, Barthenia Guinn, equally and jointly, and to their heirs and assigns forever, including any and all of her said children who may be living at the death of my said sister Barth eni a.”
    At the time of the execution of the will, November 22, 1867, only three of the children of Barthenia Guinn were living — Paralee Glidewell, Archibald and Charles N. Guinn. Of these, the last two survived their mother, who died in March, 1873.
    Archibald Guinn sold and conveyed his interest in the land to the defendant, L. P. Cooper; and when Nancy Bostick, the last surviving life-tenant, died, Charles N. Guinn and L. P. Cooper, deeming themselves to be entitled to the benefit of the devise above quoted, took possession of the land, and have since occupied and claimed it. The executor, who, by the will, was charged with the duty of selling the plantation at the termination of the life-estate, died before the last surviving life-tenant, and no other executor was appointed, and the land was not sold.
    This bill is filed against Charles N. Guinn and L. P. Cooper by certain grandchildren and great-grandchildren of Barthenia Guinn, who allege that, as such, they are entitled to share equally with defendants the benefits of the devise. They ask for a construction of the will, and that the provision therein for a sale be enforced, and the pi’oceeds divided between themselves and defendants.
    In addition to the facts above stated, the bill alleges that the testator, when he executed the will, knew that Barthenia Gumn, who was then a widow, was the only one of his three sisters who had children, and that she, at that time, had both children and grandchildren, among the grandchildren being some of the complainants in this bill. It is admitted in the bill that complainants seek to hold under the children of Barthenia Guinn who were not living at the time the life-estate in the three sisters terminated; but it is alleged that some of the complainants were living at the time the will was executed, and when the testator died, and that all of them were living at the time of the death of Barthenia Guinn, who, as stated, died before the life-estate of Nancy Bostick in the land terminated. They further allege that Jonathan Bostick, the testator, at the time he made his will, knew that all of his sisters were advanced in years, and beyond the age of bearing children.
    From these facts, taken in connection with the language of the will, complainants contend that it was the intention of the testator that they should share in the devise equally with the children of Barthenia Guinn who were living at the time of her death. Defendants demurred to the bill, and, from a decree sustaining the demurrer and dismissing the bill, complainants have appealed.
    Much of the argument on both sides is devoted to the question whether the devise was a vested one upon the death of the testator, but the construction adopted by the court makes this branch of the controversy immaterial to be considered.
    
      John T. Lowe, for appellants.
    I admit that the word “ children” was, by the earlier text-writers and earlier adjudications, construed as a word of purchase, and that “ heirs,” or “ heirs of the body,” were words of limitation ; but recent adjudications have wrought changes to such an extent that the exceptions are much more numerous. We now have the word “children” used interchangeably with issue. See Jordan v. Roach, 32 Miss., 481; 2 Jar-man on Wills, 355 ; Beach on Wills, § 287; McDaniel v. Allen, 64 Miss., 417; 100 Ind., 476; 23 W. Va., 166; 103 Pa. St., 394; 10 Ala., 517; 137 Mass., 50; 103 111., 12.
    There is nothing unusual in the amplification of the word “ children” to include grandchildren. It is always so, when it is necessary to conform to the clear intent of the testator. 32 Am. Dec., 518; 6 lb., 432; 28 lb., 648; 29 lb., 266.
    The testator well knew, when he made the will, that only three of the immediate children of Barthenia were living. Why did he not, then, refer to the three children ? It would have been, unquestionably, more concise and explicit. It would have been the more natural way of expressing his intention. On the contrary, after saying “ all of her said children, their heirs and assigns forever,” he adds, “including any and all of her children,” etc. It is apparent, then, that he meant others besides the three Immediate children of Barthenia. “All her children ” is an omnibus expression, and includes more than three children, especially, since the testator knew that there could be no more children born to Barthenia. In any event, I contend that the complainants, who. are children of Paralee, who was living at the time, of the testator’s death, cannot be excluded, because she was vested with an interest at the death of the testator. 50 Mich., 395; 30 lb., 456.
    
      W. S. Chapman and L. C. Siandifer, on the same side.
    The word “ children ” leaves no ambiguity as to who are the remainder-men. 40 Conn., 120; 83 Ky., 481; 103 N. Y., 453.
    The children of Bartheuia took vested interests in the remainder at the death of the testator. The legal import of technical words is not to prevail against the manifest intention to be drawn from the whole will. 83 Ya., 734; 10 Am. St. Rep., 59.
    The remainder was not contingent upon the children of Barthenia surviving her. 93 N. Y., 295. The use of the words “including any and all her children,” etc., was intended to extend and amplify the preceding gift so as to let in after-born children, if any should be born; for, at common law, the rule was that only children living at the testator’s death would take under the designation of child or children. The construction that will embrace descendants and posterity is to be adopted in preference to the construction which excludes them.
    The use of the words “ to their heirs and assigns forever,” shows that the testator meant to benefit not only the immediate offspring of Barthenia, bnt the families and descendants of her children who might die before the life-estate ended. 20 N. J. L., 145; 72 N. Y., 48; 48 lb., 106. The words “equally and jointly” show that the testator intended to' exclude survivorship among the children of Barthenia. 23 Barb., 299.
    The construction sought for by appellees is extremely harsh, opposed to natural justice, and to the clear intention of the testator. It is settled that the word “ children ” may embrace grandchildren, where the will shows such intention or where such construction iá necessary to effectuate the purpose of the testator. 37 N. Y., 42 ; 62 76., 491; 48T6., 106; 1 Bradf., •252; 4 Kent, Com., 419; 1 Cold., 253; 33 Me., 464; 79N.Y., 246; 2 Mete., 331; 11 How. (H. S.), 329; 5 Murf., 440; 1 Sumner, 368; 8 Mass., 41; 1 Grant., 60.
    
      Henry Graft, for appellees.
    The word “children” cannot in this will be construed to embrace grandchildren. On this general subject, see Hubbard v. Selser, 44 Miss., 705 ; Tucker v. Stites, 39 lb., 196.
    Of the immediate offspring of Barthenia, only those who survived her can take. 11 Humph., 58; 4 Sneed, 250; 7 Yerger, 606.
    The devise is to the children as a class. The time of payment or distribution is fixed at a subsequent period, on the happening of a future event, and the interest vests in such persons only as at that time fall within the designated class. 1 Jarman on Wills, 295 ; 1 Roper on Legacies, 71; 11 Humph., 483; 2 Head, 192; 3 Sneed, 260; 1 Redf. on Wills, 385; 3 Jones, Eq., 167; 1 Tenn. Ch., 581; 4 Heisk., 54; 1 Lea, 31; 3 Pickle, 595.
    The words, “ and their heirs and assigns forever,” did not affect the class taking the devise. 100 Mass., 345.
    
      Galvin Perkins, on the same side.
    The word “ children ” must be understood in its primary sense, its simple signification, since there is nothiug in the will to require a different construction. 84 N. Y., 516; 5 Md. Eq., 421; 3 Barb. Ch., 475; 12 B. Mon., 115; 7 Paige, 328; 9 lb., 88; 23 Hun, 260; 38 Pa. St., 478; Boone on Real Property, 342-345; 1 Ired., 166.
    I refer specially to Leigh v. Leigh, 17 Beavan, 605; 2 Bro. C. C., 658; 11 Humph., 58; 2 Head, 192; 7 Yerger, 606; 1 Cooper Ch., 383; Tucker v. Stites, 39 Miss., 196.
    It is apparent from the whole clause that the testator intended the children to take as a class, and that the class included only the immediate children of Barth enia living at the time of her death.
    
      W. P. Harris (brief on the same side, filed by associate counsel.)
    The use of the words, “ and their heirs and assigns forever,” is to distinguish the final gift in fee from the previous life-estate. That is the whole import of these words. The word “ children” must be limited to the immediate"offspring. 2 Jarman on Wills, 690; 5 Heisk., 222. There is no word or circumstánce requiring the application of a different construction. 2 Williams, Executors, 734.
    The word “children” cannot mean grandchildren, where there are persons who answer to the .description. 5 Ired., 421; 5 Paige, 172; Tucker v. Stites, 39 Miss., 196.
    By the use of the expression, “all the children,” is meant any one child or more who may be living at the death of Bai’thenia. The doctrine contended for is too well established to need further citation of authorities. The gift is to ,a class of persons, and the testator has himself indicated unmistakably the time when the parties of the class are to be ascertained. It is characteristic of devises or legacies to a class, that, until the time appointed to ascertain the members thereof, their number may fluctuate. 2 Jarman on Wills, 700; 7 Paige, 544.
   Campbell, C. J.,

delivered the opinion of the court.

Only the immediate offspring of Barth enia Guinn were entitled to take under the will, since the gift is to “ children,” and a broader than the primary signification of the word is not given to it by the will. Her children living at her death were the class designated by the will as those who were to take, “equally and jointly,” at the termination of the life-estate.

Affirmed.  