
    Thomas C. Richardson vs. Elizabeth P. Manning and others.
    
      Will — “ Joint Lives ” — Implication—Estate pur autre vie.
    
    The testator devised the residue of his estate, real and personal, to his executors in trust, “that they keep the same together during the joint lives of my two brothers J. and T., and that they divide the net proceeds annually between my said two brothers, share and share alike; subject, nevertheless, to the payment of fifty dollars per annum out of each share so divided” to 0., and subject also to two other annuities of twenty-five dollars each. “At the death of my two brothers above named ” the corpus he directed to be divided between his three nephews on certain conditions mentioned: — Held, that J. and T. took an estate in the net proceeds during their joint lives and the life of the survivor of them; that the survivor was not entitled to the whole by implication; and that the executors of J., who had died since the testator, were entitled to his share during the life of T.
    An equitable estate pur autre vie in income derived from real and jiersonal property is, it seems, personalty, but, even regarding it as an incorporeal hereditament, if there be no devise by the tenant pur autre vie, nor special occupant, it goes, on the death of the tenant pur autre vie, and during the life of the cestui que vie, to the executors of the tenant pur auti'e vie, and they must account for it.
    BEFORE OARROLL, OH., AT CHAMBERS, NOVEMBER, 1864.
    James B. Richardson, late of Clarendon District, the testator in the cause, died in 1860. His will was dated in 1859. By the first clause he declared :
    “First, after all my just debts are respectively paid and discharged, all my real and personal estate which I may die possessed of, I hereby dispose’ of in the manner following, viz.”
    In eight of the next eleven clauses he bequeathed specific legacies of inconsiderable value. By the fifth and twelfth clauses he directed his executors to pay two annuities of twenty-five dollars each, and by the sixth clause he bequeathed a pecuniary legacy of one thousand dollars. He then, in the thirteenth clause, proceeded as follows:
    
      “ 13. I give, bequeath, and devise to my executors hereinafter named all the rest and residue of my estate, both real and personal, in trust, that they keep the same together— that is to say, employ the negro slaves constituting the field-hands, with their families, on the plantation or lands as I may leave them at my death — during the joint lives of my two brothers, John P. Eichardson and Thomas C. Eichardson, and that they divide the net proceeds of said real and personal estate annually between my said two brothers, share and' share alike; subject, nevertheless, to the payment o£ fifty dollars per annum out of each share so divided, to be paid or applied by my said executors in such way or manner for the sole and separate use and behoof of my sister, Camilla E. Cantey, during the term of her natural life, as they, in the exercise of a sound discretion, may think best; and subject in like manner to the payment of the two other annuities in the fifth and twelfth clauses of this will, already mentioned and directed. At the death of my two brothers above named, it is my will, and I hereby direct, that the whole of the real and personal estate last above given and devised in trust be divided between my three nephews — John Peter Eichardson, Jr., Charles Eichardson, and James M. Eichardson — to them, their heirs and assigns forever, with limitations and restrictions, and in portions as follows, viz.: one-half or moiety to go to the said John P. Eichardson, Jr.; the other half or moiety to be equally divided between the said Charles and James M. Eichardson, share and share alike. And it is hereby declared that the bequest and devise to the said John P. Eichardson, Jr., is made upon the proviso and express condition that he purchase from the said Charles and James M. Eichardson the other half or moiety, given and devised to them, at a fair and reasonable price ; and in the event of disagreement, the price to be determined by two disinterested appraisers, mutually chosen, with liberty to call in an umpire in case of disagreement. It being my express will and desire that the real and personal estate aforesaid should not be divided or separated, whereby husbands may be parted from their wives, or children from their parents. And in the event of the death of the said John P. Richardson, Jr., or his refusal to purchase, my nephew, Richard J. Manning, to take the half or moiety hereby given and devised to the said John P. Richardson, Jr., under the same proviso and conditions; and in the event of the death of the 'said Richard J. Manning, or his refusal to purchase as aforesaid, the said Charles Richardson to take the half or moiety last aforesaid, under the same proviso and conditions. And I do hereby enjoin my said executors, during the continuance of- this trust, to see that the slaves herein given and bequeathed under it be well fed and clothed, and humanely treated; and that the laboring hands, besides the customary allowance of corn for bread, be allowed half a pound of wholesome meat daily.”
    The will was duly proved before the Ordinary and the plaintiff alone qualified as executor. The brother of the testator, John P. Richardson, having died, this bill was filed by the executor and trustee against the heirs at law and distributees of the testator, the executors of John P. Richardson and the remaindermen mentioned in the thirteenth clause of the will, praying that it might be determined who were entitled to the net proceeds of the estate since the death of John P. Richardson.
    The decree of his Honor is as follows:
    Carroll, Oh. James B. Richardson died in 1860, leaving of force a last will and testament. After sundry bequests, the testator gives the entire residue of his estate, real and personal, to his executors, in trust, that they keep the same together during the joint lives of his two brothers, John P. Bichardson and Thomas 0. Bichardson, and that they divide the net proceeds of said real and personal estate annually between his said two brothers, share and share alike. At the death of his two brothers, the testator devises the whole of his real and personal estate to three of his nephews, in absolute property, subject to certain conditions and limitations which he prescribes. The testator’s brother, John P. Bichardson, died in January, 1864. Thomas 0. Bichardson, the other brother, still survives. The matter to be considered and adjudged is, what disposition shall be made of the residuary estate, or its proceeds, during the period to intervene between the death of J. P. Bichardson, the elder, and the decease, whenever it may occur, of his surviving brother, Thomas C. Bichardson. If the residuary disposition in favor of the two brothers be understood to import a bequest for the term of their joint lives only, then, one of them having died, the interest of both has ceased. If the will be thus construed, can the nephews take presently, under the limitation to them, either the corpus or the net proceeds of the residuary estate ? Their claim to the corpus is opposed by the invincible objection that the event has not yet occurred, upon the happening of which their estate is to vest in possession. That event is not the death of one, but of both the brothers, and one of them yet survives. The same objection presents itself to any supposed right of the nephews to the net proceeds of the residue. Indeed, they have even less pretence of right to the proceeds than to the corpus. • The interest of the brothers in the residue relates to the net proceeds only, while it is the corpus of the residuary estate that is given to the nephews. It follows that nothing whatever of what is given to the brothers is, in any contingency, limited to the nephews. The like consequences, in respect of the nephews, must ensue, should it be held that, upon the death of J. P. Bichardson, Sr., his interest only ceased, while that of his surviving brother continued, unimpaired. The obstacles which preclude the nephews from taking the whole of the corpus, or net proceeds, of the residuary estate, would as effectually bar them from all interest in a moiety or any other portion of the same during the life of Thomas 0. Richardson.
    The bequest in favor of the testator’s brothers, it is to be observed, forms a part of the residuary disposition of the will. It has been shown that if they were held 'to have taken an estate which terminated upon the death of J. P. Richardson, the elder, still no interest in the residue in that event would devolve upon the nephews, under the limitation to them, during the life of the surviving brother. The result would be that, from the death of J. P. Richardson, Sr., until the deeease of his brother, Thomas C. Richardson, the entire residue, comprising the great bulk of the testator’s estate, would be wholly undisposed of.
    In the first clause of his will the testator declares that, by the execution of that instrument, his purpose was to dispose of “all the real and personal estate” of which he might die possessed. In the interpretation of wills, it is said that, of two modes of construction, that will be preferred which will prevent intestacy; and that, when a residue is given, every presumption is to be made that the testator did not intend to die intestate; 2 Roper Leg., citing 4 Yes. 59. It is worthy of remark that the words, “during the joint lives of my two brothers,” are not to be found among the terms descriptive of the estate given to the executors in trust. Nor do they appear in the immediate description of the interest given to the two brothers. They are employed in the primary direction addressed to the executors, which is, that they shall keep together all the residue of the testator’s estate, both real and personal, during the joint lives of his two brothers, John P. and Thomas C. Richardson. It is manifest that the testator never contemplated any disposition of his residuary estate which would involve its division or separation into parts. On the contrary, to guard against it thoroughly and effectually seems to have been the object of paramount consideration with him. His direction, that the executors keep the residuary estate together, is explained by the testator to mean, in his own words, “ that they employ the negro slaves, constituting the field-hands, with their families, on the plantation or lands, as I may leave them at my death.” It was an arrangement dictated by a sense of humanity, on the part of the testator, towards his negro slaves. He adheres to it, and pursues it throughout all the ulterior limitations of his residuary estate. At the death of both the brothers, although the entire residue is given to three of his nephews, it is upon the express condition that one of them* J. P. Richardson, Jr., shall purchase from the other two their shares in the same, at a reasonable price; and should they disagree as to the amount, provision is made for having it determined by two disinterested persons, with liberty to call in an umpire in case of disagreement. Should J. P. Richardson, the younger, refuse to purchase, or be then dead, the moiety given to bim is devised to another nephew, Richard J. Manning, upon the same condition; and in the event of his death or refusal to purchase, it is given, for the third time, upon the same condition, to Charles Richardson, the brother of J. P. Richardson, Jr.; “it being my express will and desire,” says tbe testator, “ that the real and personal estate aforesaid should not be divided or separated, whereby husbands may be parted from tbeir wives, or children from tbeir parents.” But if it be held that the estates of both the brothers determined upon the death of J. P. Richardson, Sr., then, as we have seen, the entire residue is undisposed of from that date until the decease of Thomas C. Richardson. The trust being at an end, tbe executors would be bound to deliver up the whole residuary estate to the persons entitled under the statute disposing of intestate property, and they, at their pleasure, might proceed at once to a partition of the same. Adams, Eq. 30. The effect of it would be, that the declared and persistent purpose of the testator to prevent the dispersion of his residuary estate would be utterly defeated, and that such result too would be the necessary and inevitable consequence of the primary arrangement made to avert it; for it would be too absurd to impute to the testator the expectation that both his brothers would die at the same instant of time. If the words employed by the testator are rationally susceptible of another construction, unattended by such consequences, such construction, undoubtedly, should be preferred.
    If the testator be understood as intending that the trust created in favor of his two brothers should subsist until the death of the survivor of them, then there will be no chasm in the limitations of the residuary estate. His purpose to keep it together undivided will then be fully secured. It will remain en masse in the custody of the trustees, the executors, until the event has happened upon which it will devolve in possession upon the nephews; and in their hands it will be protected against division by the specific and guarded conditions to which we have already referred. No sufficient objections to such construction are perceived. The will is unskilfully framed, and is manifestly the work of a draughtsman unfamiliar with the rigorous exactitude requisite in the preparation of legal papers. If the words, “ during the joint lives of my two brothers,” be regarded as only restricting the estate of the trustees, then the gift to the brothers would be primarily indefinite. Its limitation, to be sure, would be found in the succeeding disposition in favor of the nephews. But that would imply a gift to the brothers until the death of the survivor, and the estate of the trustees would be correspondingly enlarged; 2 Jarm. 200. If, however, the words in question be considered as applicable to the interests given to the brothers, still they cannot be read to import that such interests are to determine upon the death of either. Such a construction would present a singularly fantastic form of disposition; a bequest of the great bulk of the testator’s estate to two of his brothers, determinable upon the death of either of them, and involving, of necessity, an utter intestacy of indefinite duration; a description of gift devoid of all rational motive or purpose on the part of the donor. But it is not deemed necessary to dwell upon this point. Eor the reasons already sugg-ested, we are forbidden by the will itself to attach such meaning to the words under consideration. They cannot then be understood in their ordinary sense. It is admissible, therefore, to consider whether the words in question be not susceptible of some other meaning, not conflicting with the other provisions of the instrument in which they are found.
    The words, “during the joint lives of my two brothers,” may have been used in the sense of “during the lives of my two brothers both,” or as equivalent to the phrase, “until the death of both my brothers.” Either of the forms of expression suggested, it is conceived, when taken in connection with the context, would import a gift to the brothers not determinable until the death of the survivor. If the words referred to be not susceptible of such signification, then, it is apprehended, they must be rejected altogether, because wholly irreconcilable with the general plan of disposition, so plainly and distinctly expressed as to leave no doubt of its meaning.
    It is considered, therefore, that upon the death of J. P. Richardson, Sr., no interest whatever in the residuary estate or its proceeds either passed to the nephews, under the limitation in their favor, or remained undisposed of by the will. The result is, that Thomas C. Richardson of course retains unimpaired his moiety of the net proceeds of the residue; and the sole question now to he considered is, upon •whom devolved, at the death of J. P. Richardson, Sr., the moiety bequeathed to him ?
    It is contended, on the part of Thomas 0. Richardson, that the bequest to the brothers created a tenancy in common, with an implied gift to the survivor for life. In support of this claim, reference has been made to tbe cases of Armstrong vs. Midridge, Tucherman vs. Jeffries, and Pearce vs. Mdmeades, all which are cited and commented upon in 2 Jarm. on Wills, 164,165,166. The cases referred to are not regarded as any authority whatever for the implication of an estate for life to the surviving brother. In each of them it was held that the surviving donee took, by virtue of the jus accrescendi, incident to the express estate of joint tenancy, conferred by the words of the will. In the two cases first mentioned the decision is placed avowedly upon that ground; and in Pearce vs. Mdmeades it may fairly be collected that the judgment was intended to stand upon no other foundation. Referring to the words of severance in the gift, Lord Abinger remarks: “Bat when these words are combined with, or followed by, others which would make a tenancy in common inconsistent with the manifest design of the subsequent bequest, they may be taken to indicate, not the nature, but the proportion of the interest each party is to take.” Reading the words of severance in the sense suggested, the bequest in that case was, in effect, to the two children of M., without more — a form of gift which, it has long been settled, makes the donees joint tenants. 2 Jarm. 157. In the case of Armstrong vs. Mldridge, and Pearce vs. Mdmeades, it is further to be observed that no claim was, or could have been, set up, as in this case, on behalf of the personal representatives of the deceased legatee. The bequest in each of them was expressly in equal shares, during the respective lives of the legatees; and, in the case last mentioned, the material circumstance occurs, which is wanting here, that if the surviving brother did not take his sister’s share, at her death, it was thenceforth for the remainder of his life wholly undisposed of by the will.
    Of the case of McDermot vs. Wallace, 5 Bevan, 142, which has also been cited, I have no knowledge, except such as has been furnished by the written argument submitted, not a volume of the English Chancery Beports being accessible to me. The testatrix there gave “ to Mary and Elizabeth Grant the annual sum of twelve pounds in the long annuities, to be equally divided during their lives, after which” she gave the said sum to Elizabeth McDermot. Elizabeth Grant died in 1831, and Mary Grant in 1841, and the question was, who was entitled to the dividends between 1831 and 1841 ? The contestants were the representatives of Mary Grant and Elizabeth McDermot. The judgment of the Master of the Bolls was in favor of the representatives of Mary Grant, but the ground of the decision is not indicated.
    It is argued that infinite violence to the will would have been done by rejecting the words, “ equally to be divided," and that the surviving legatee for life could not have taken by virtue of the jus accrescendi. The words referred to were not more' potent to repel such construction than were the words, “in equal shares,” in Pearce vs. JEdmeades. If the latter words were properly understood to indicate not the nature, but the proportion, of the interest to be taken by each legatee, it is not perceived why the words, “ equally to be divided,” having identically the same meaning, should not receive the same interpretation.
    An estate is sometimes devised to a plurality of persons, as tenants in common, with limitation over, in the event of their all dying, leaving no issue. In such cases cross-remainders are implied between the donees, to take effect at the death of any of them, without issue surviving. The implication is founded upon the idea that the testator, by postponing the operation of the limitation over until the death of all the first takers without issue, has plainly manifested his intention to give over the whole property at one and the same time as one estate. “The method to bring the estate together,” says Mansfield, 0. J., “is to imply cross-remainders.” Georges vs. Webb, 1 Taunt. 234. But the reasons for such implication have obviously no application to the present case. It is not necessary at all that what was bequeathed to the two brothers should be “brought together” in the hands of Thomas C. Bichardson, to be delivered at his death, to the nephews in bulk, and as one estate; for, as already remarked, nothing of what is given to the brothers is, in any event, limited to the nephews. Whether from and after the death of J. P. Bichardson, the elder, the net profits bequeathed were thenceforth divisible between his personal representatives and Thomas 0. Bichardson, or belonged solely to the latter until his death, cannot in anywise ^affect the corpus of the residue, which alone is limited to the nepheAvs. That, in either event, will remain in the custody of the testator’s executors, to be surrendered to the nephews at the death of the surviving brother.
    It is said that “ an estate by implication is never allowed in any case, except from necessity, which must be apparent on the face of the willand a necessary implication is defined to be such a strong probability that an intention to the contrary cannot be supposed. Oarr vs. Porter, 1 MeO. Oh. 86; Addison vs. Addison, 9 Bich. Eq. 61, 63 ; 1 Jarm. 465. The ^estator has bequeathed to his two brothers interests of the same nature. If, pursuing his idea of effecting equality between them in the measure of his bounty, he thought fit to make them equal also in the amount of actual profits to be derived from his bequest, by providing that the interest of each, whether he was personally to enjoy or not, shall endure for precisely the same space of time, it would be difficult to show that such a disposition was senseless or • absurd. It may be an unusual form of gift, but surely it is not so preposterous that the intention of making it cannot be supposed to have been entertained by the testator.
    It has been shown that the interest taken by the two brothers in the residuary estate is to be had and held by them, in some mode or other, until the death of both. If this be assumed, then, in considering what disposition should be made of the share of J. P. Bichardson, the elder, after his death, we have but to read and give effect to the plain and unambiguous words of the will. Certainly the interest bequeathed to-the two brothers bears but little resemblance to an estate in joint tenancy. The bequest in their favor is to be found in the direction to the executors, “that they divide the net proceeds annually between my two brothers, share and share alike.” Not only is there no necessity for implying cross-remainders between them, but there would be no propriety in doing so. There is nothing in the terms of the bequest importing that the testator contemplated that either of the brothers should ever take more than a moiety of the net profits; and we have seen that no such inference is deducible from the succeeding limitation, or the event upon which it is to go into effect. As the interest of the brothers in the residue is regarded as an interest to continue until the death of both, the will should be read as if directing the executors to divide the net'proceeds of the residuary estate, annually, share and share alike, between the two brothers during their joint lives, and the life of the survivor. Bequests in those identical words have been adjudged to confer upon each of the legatees an interest which, upon the death of any one of them in the lifetime of the others, devolved upon his personal representative, and not upon the survivors. The cases referred to are Jones vs. Randall, 1 Jac. & Walk. 100, and Males vs. Marl of Cardigan, 9 Sim. 384. If such is the construction adopted in England, where the right of survivorship among joint tenants still exists, surely it is admissible in this State, where the jus accrescencli has been long since abolished.
    It is adjudged that, under the will of James B. Richardson, deceased, his brother, John P. Richardson, the elder, took an interest in one moiety of the net proceeds of the residuary estate, to continue for and during the joint lives of himself and his brother, Thomas 0. Richardson, and the life of the survivor of them, and that, upon the death of J. P. Richardson, the elder, his said interest became transmitted to the defendants, his executors.
    And it is ordered, if the executors of the said J. P. Richardson so desire, that the said Thomas C. Richardson account with them before the Commissioner for the one moiety of the net proceeds of the said residuary estate that have accrued since the death of the said J. P. Richardson, Sr.
    Let the costs of all the parties be paid out of the net proceeds .of the said residuary estate, in the hands of the plaintiff, Thomas C. Richardson.
    The plaintiff appealed, and now moved this Court to modify the decree, on the ground, that his Honor has erred in decreeing that the interest in one moiety of the income devised to Governor John Peter Richardson continued for and during the joint lives of himself and his brother, Thomas C. Richardson, and-the life of the survivor of them; and that, upon the death of Governor Richardson, his said interest became transmitted to his executors; whereas it is respectfully submitted that, on the death of Governor Richardson, his interest in the said income was transmitted to the survivor, Thomas C. Richardson, for the residue of the life of the said survivor.
    
      James Simons, for appellant.
    
      J. S. Q. Richardson, contra.
    The question arises under the thirteenth clause of the testator’s will, and relates to the disposition of the income or net proceeds of the estate in the interval that has elapsed and will elapse between the death of John P. Eichardson and Thomas C. Eichardson.
    There are four sets of claimants. It is said, (1,) that the net proceeds are only disposed of daring the joint lives of the two brothers, and that, as one of them is dead, they must now go until the death of the other to the' heirs at law, or distributees, of the testator; (2,) that they are disposed of as part of the rest and residue of the estate, and must accumulate for the benefit of the three nephews, the remaindermen or executory devisees; (3,) that the surviving brother is entitled to the whole of them for life; and, (4,) that they must still be divided as they were in the lifetime of the deceased brother, the surviving brother, Thomas C. Eichardson, taking one-half, and the representatives of the deceased brother, John P. Eichardson, taking the other half.
    He should contend for the fourth position as the true legal construction of the will.
    To elucidate his ideas and avoid, probably, much circumlocution hereafter, he would beg leave to preface his remarks by referring to a few elementary principles, and by inquiring as to the nature of the estate taken: (1,) by the executors or trustees; (2,) by tbe two brothers or tenants for life; and, (3,) by the three nephews, the remaindermen, or executory devisees. This inquiry would seem to be proper, if not necessary, as the foundation of his argument upon the main point, that is, as to the quantity of interest taken by the two brothers.
    Two of the divisions of things mentioned by the writers on the civil law, are, (1,) things corporeal and things incorporeal, and, (2,) principals and accessories. Things corporeal include every thing that is tangible, as land, slaves, horses, cattle and so on. Things incorporeal include estates and rights and duties of every class and kind. By principal things they mean what we call the corpus, and by accessories they mean crops, profits, hire, rent, interest, dividends, and every thing that this testator calls “ net proceeds.”
    Now a testator having an absolute estate, or interest, legal and beneficial, in the principal things or corpus, may carve out of his estate or interest as many smaller estates or interests as he pleases, and may annex to his gifts as many conditions and limitations as the law will permit. He may give the dry corpus to one absolutely, or for life, or for years, and may provide that in a certain event it shall go to others, and he may separate the accessories from the corpus and give them to others. "What the testator in this case did, appears to be this. He gave (1) the dry corpus to his executors; (2,) then, separating fór a limited time the accessories from the corpus, he gave them, that is, the accessories, to his two brothers; and, (8,) he gave, after the death of both the brothers, the principal things or corpus, to his three nephews. The executors, or trustees, became the owners of the principal things or corpus, but their ownership is a dry one — that is, they have no beneficial interest in the income, accessories, or proceeds. The two brothers acquired an estate for a limited time in the income, accessories, or proceeds, and that estate gives them the right, as long as it shall last, to take for their own use and absolutely the income, accessories, or proceeds as they are annually produced; that is, their estate, or interest — their juridical, ideal, incorporeal right— is for a limited time, but the fruits which that "estate from year to year yields they take absolutely. Their estate is an incorporeal thing in the nature of a usufruct, or rent charge, or more properly of an annuity, and that estate they take but for a limited time ; the fruits which that estate annually produces are corporeal things, and those they take absolutely. The gift to the three nephews is of the corpus and not in terms of the accessories; but, inasmuch as they will take the 
      corpus at a time when the accessories wil lno longer be separated from it, they, the nephews, will take the accessories also, not because they are given to them in terms, or ex-pressly, but because they are not given to others. They will take the accessories, not by direct gift from the testator, but under the maxim accessorium sequitur suum principals. It follows most clearly, that they do not take as remaindermen the estate which is given to the two brothers. That estate, when the interest of the two brothers ends, will simply have ceased. It was created for their benefit alone, and is not limited over at their deaths to any one. It is nothing more or less than an annuity of an uncertain amount, created for a special purpose and a limited time, which during the time is an incumbrance on the principal estate, and which, when that time is out, will simply cease and fall back into the principal estate. The importance of bearing these things in mind would, he thought, appear hereafter.
    Having thus shown the nature of the estate or interest which the different parties take under the thirteenth clause of the will, the next question is, What is the quantity of interest given to the two brothers ? How long did the testator intend that their estate should last? Did he intend that it should last only during their joint lives, or did he intend that it should last as long as they both should live, or, in other words, during their joint lives and the life of the survivor.
    His first position was, and this he thought the true construction of the will, that the two brothers take, by the express provisions of the will, an estate which will last as long as they both shall live, or, in other words, until the death of the survivor of them. But if the Court should not adopt that view, then he submitted that they take an express estate during their joint lives, and an estate by implication, not in the survivor alone, but in both, from the death of one until the death of the survivor.
    
      That the testator intended to dispose of his whole estate is clear. He says so in the first clause of his will. In the next eleven clauses he disposes of some comparatively inconsiderable parts of the estate, and then, in the thirteenth and last disposing clause, he says: I give to my executors “ all the rest and residue of my estate, both real and personal, in trust, that they keep the same together during the joint lives of my two brothers,” “ and that they divide the net proceeds of said real and personal estate annually between my two brothers, share and share alike;” and “at the death of my two brothers above named, it is my will, and I hereby direct, that the whole of the real and personal estate last above given and devised in trust be divided between my three nephews,” “ to them, their heirs and assigns forever.” It is manifest, on reading this clause of the will, that the testator intended by it to dispose of the whole residue of his estate, and the whole difficulty in the construction arises from the use of the word “joint.” Now the first remark he had to make in reference to that word was that, according to the grammatical construction of the sentence in which it occurs, it applies only to the period during which the executors are directed to keep the estate together, and does not directly limit the estate given to the two brothers. Still he must in all fairness admit, that a logical interpretation shows that the testator intended the estate to be kept together by his executors as long as they were required to divide the proceeds annually between the 'two brothers. He would therefore consider the question as if the word “joint” applied directly, as a word of limitation, to the estate given to the two brothers.
    He thought it clear, looking at the clause as a whole, and not confining his attention to the particular expression mentioned, that the testator intended not only that the trust estate should last, but that his two brothers should in some way or other enjoy the income or profits until the death of both of them. His three nephews were the principal objects of his bounty, and yet he postpones their possession and enjoyment until the death of both the brothers. Why does he do this? Not, certainly, either that his heirs at law should take the income after the death of one brother, or that it should accumulate for the benefit of his three nephews, but, most clearly, that his two brothers should in some way or other enjoy it until the death of both of them.
    Such being the clear intention of the testator, as is manifest from all the provisions of the thirteenth clause, the proper and only way to read that clause is to reject the word “joint” as not expressing the intention of the testator.
    That the Court has the power to reject words when they are inconsistent with the context, is clear upon principle as well as authority. It is involved in the maxim falsa demonstraiio not nocet. “Words and limitations,” says Mr. Jarman, 2 Jarm. 744, “may be transposed, supplied, or rejected, where warranted by the immediate context, or the general schemb of the will.” Smith on Eeal. & Per. Prop. 778. The object in construing a will or anjr other unilateral instrument, is to get at the real intention of the writer. Words are but a means to an end; they are but the instruments which the writer or speaker uses for the purpose of conveying his ideas into the mind of the reader or hearer; and when it appears from the context, from all that is written, from the four corners of the instrument as it is sometimes expressed, and from the general scheme of the will, that a particular word was not understood by the writer, that it is senseless, or that it contradicts the real intention, it should be rejected altogether, or changed for another word. In such cases the grammatical must give way to the logical interpretation. Qui haeret in litera hosrei in cortice.
    
    But he would not extend these remarks, for the case of Toionley vs. Bolton, 1 M. & K. 148, was direct to the very point he was considering. In that case the testator bequeathed as follows: “ I give to my sister M. and her husband G. fifty pounds per annum, long annuities, for their joint lives, and at their decease I give the same to my nephew, P.” M., the sister, died, and G., her husband, survived her, and it was held that G. was entitled to the annuity during his life. The case was decided, it seems, upon the ground that they took as joint tenants an estate during their joint lives and the life of the survivor. That case, then, must have been decided either upon the ground that the word joint should be rejected, or, what in effect was the same thing, that the joint estate was continued by implication until the death of the survivor. This gave the survivor the whole, on the ground that, in cases of joint tenancy, the whole estate goes, by the jus accrescendi, to the survivor. But it was perhaps unimportant to consider, in that case, on what ground the survivor was entitled, for, by the law of England, a husband surviving his wife is entitled, if he administers on her estate, ■to take the whole personal estate for himself. But upon the point he was now considering, that is, whether the estate given to the two brothers was intended to last until the death of the survivor — two cases could not be more alike. The proper way, then, to read this will is as follows: I give to my executors all the rest and residue of my estate in trust, that they keep the same together “ during the lives” or “ during both the lives” of my two brothers; and so reading it, there would be no difficulty in the construction.
    He had contended so far that the will should be construed by rejecting or changing the word "joint.” But, if that view should not be adopted, then he submitted that the estate of the two brothers should be extended by implication until the death of the survivor. The authorities upon this point are numerous. But as it had been discussed'fully by the counsel for the complainant, he would leave it with this remark, that, in his opinion, it makes no difference whether the estate is extended to the death of the survivor by rejecting the word “joint,” or by retaining it and then enlarging the estate by implication; for in either view it is the same estate, that is an estate in both, that is continued or enlarged, and not, as he would presently show, an estate in the survivor, as contended for by the counsel for the complainant.
    He would assume then that the Court will hold that the estate will last until the death of both the brothers, and also that the estate will simply cease at the death of the survivor, or, in other words, that it is not limited over in remainder at the death of the survivor. The case then is simply a bequest of the usufruct of property, or more properly of an annuity to two persons during their lives and the life of the survivor of them; and in such case he submitted that the law of this State is, that each takes an estate for his own life and for the life of the survivor, or, in other words, that upon the death of one of them his representatives take his share until the death of the other; and, further, that it makes no difference whether they take as joint tenants or tenants in common. In Bales vs. Earl Cardigan, 9 Sim. 384, " On a bequest of an annuity of two hundred pounds a year each to two persons for their lives and the life of the survivor of them, held that each was entitled to an annuity of the same amount during their lives and the life of the survivor of them, and that the representatives of one dying were entitled to it during the life of the survivor.” In Jones vs. Randal, 1 J. & W. 100, 1 Jarm. 477, on a bequest of an annuity to children, to be divided amongst them in equal shares, “such annuity to be paid during the lives of such children and the life of the survivor of them, it was contended that the survivors were entitled by implication; but it was held that the argument that because the annuity was for the life of the survivors, therefore the survivors were entitled to take, amounted only to conjecture. The children took as tenants in common an annuity for their lives and for the life.of the survivor.” These cases show what the law applicable to such cases is in England, when tbe parties take as tenants in common ; and in this State tbe law is the same when they take as joint tenants — the Act of 1791, 5 Stat. 163, having abolished the right of survivorship in such cases, so that it is unimportant in this case to consider whether the two brothers took as tenants in common.
    But, in behalf of the complainant, it is said that he is entitled to the whole by implication. He would examine this claim; and in the first place he would remark that, putting out of consideration that numerous class of cases where the survivor takes the whole because the tenancy is held to be joint and not in common, he knew of but one class of cases where the survivor takes the whole by implication, and that is where cross-remainders are implied between tenants in common or in severalty. Unless then it can be shown that the two brothers took cross-remainders by implication, it cannot be shown that the complainant is entitled to the whole; for the same argument upon which he now claims the whole would have applied in behalf of the other brother if he had been the survivor.
    So far as his examination has extended, all the writers who treat of cross-remainders by implication, with one exception, treat the doctrine as if it were confined to estates tail. 2 Bl. Com. 382; Burt, on Beal Prop. 208; Smith on B. and P. Prop. 233; Eearne; Shep. Touch.; Cruise. Mr. Jarman is the only exception, and he contends that it should be applied to estates for life. 2 Jarm. 479. The doctrine in England appears to be this, that if an estate in .common be devised to A and B to hold as tenants in tail, with remainder over if they both die without issue, upon the death of one of them without issue the other will take the whole by necessary implication, upon the apparent intention to give over the whole as one estate upon the death of both without issue. 2 Bl. Com. 382; Chev. Eq. 79. If this be the doctrine it is clear that it does not apply in this case, and that for two reasons: (1,) Because there is here no estate tail; and, (2,) Because there is no remainder over of the estate given to the two brothers. But, as he had already said, Mr. Jarman contends that the doctrine is applicable to estates for life, and Chancellor Harper, without examining the question, takes it for granted in Baldrich vs. White, 2 Bail. 442, and Seabrooh vs. Mihel, Ohev. Eq. 80, that it is so applicable; and he might add that it appears to have been taken for granted by Judge Nott, in Oarr vs. Porter, 1 McC. Ch. 79, contrary to the English rule, (see 2 Jarm. Ch. 43, p. 481,) that it is also applicable to absolute estates determinable in the event that both legatees should die without leaving issue. But in neither of the cases mentioned was the question made and decided, and the opinions amount only to dicta. Nevertheless, if it appeared that Chancellor Harper or Judge Nott had had their attention directed to the objections he would now present to this particular class of implications, that is, implications which give the whole to the survivor, he would not be bold enough to question their authority. But, as it does not appear that they made any careful examination of the matter, he would venture to present it in the view it had occurred to him. He would say, then, that this class of implications is but an extension of the rule which in cases of joint tenancy gives the whole to the survivor, to a few cases of tenancies in common and estates in severalty; that the supposed necessity for making the implication does not, in fact, exist, and it is only made in England because it is . favored by the policy of their institutions, which encourages the building up of large estates in one person’s hands; that the policy of our American institutions is exactly the opposite ; that our law gives the succession not to the eldest son, but to all the children, and that when the right of survivor, ship was abolished by the Act of 1791, in cases of joint tenancies, this particular class of implications, so much like that right, was abolished with it; or rather, perhaps, it would be better to bold, that as such implications had never been made before 1791, except in cases of estates tail, the notion upon which they are founded never had 'a place among the laws of this State. To illustrate his views he would state a hypothetical case. According to Mr. Jarman, if an estate be given to two for life as tenants in common with remainder over after the death of both of them, the survivor will take the whole by implication. Can that be the rule in this State, where the right of survivorship in cases of joint tenancy does not exist ? Suppose a testator were by one clause of his will to give an estate to A and B for life, as tenants in common, with remainder over after the death of both of them, and by another clause were to give another estate to A and B for life as joint tenants, also with remainder over after the death of both, and then A were to die, leaving B surviving him. In England, B would take the whole of both estates for his life. In the case where the tenancy in common was created, he would take by implication; in the other case, where a joint tenancy was created, he would take as survivor under the/ws accrescencli. In England, therefore, the rule in the one case is consistent with the rule in the other — they both lead to the same result. But how is it in this State ? In the case of the joint tenancy, the jus ctccrescendi having been abolished, the survivor would not take; but the share of A would go to bis representatives by the express provision of the law; and yet with strange inconsistency, it is said that in the case of the tenancy in common the survivor would take by implication. Can this be so ? It may be contended that in this State cross-remainders would be implied in such cases, in joint tenancies as well as in tenancies in common. But that cannot be, for there is -no authority for any such position, and it would be directly in the teeth .of the Act of 1791.
    He had made the question last mentioned merely ex tabundanti .cautela, for he thought it clear, as he would now proceed to show that the rule has no application to the case before the Court. The rule, as Mr. Jarman states it, he had already stated. In Baldrich vs. White, and Seabroolc vs. Mihel, Chancellor Harper states it thus: “ If property were given to two for life, and at their deaths to their children, and if both should die without leaving children, then over, here would be cross-remainders by necessary implication, nothing being given to the remainder over until the death of both without children,” 2 Bail. 445; Chev. Eq. 88. If every circumstance stated by Chancellor Harper is necessary to the implication, this case clearly does not come within the rule, for here there is no remainder to the children of the tenants for life; and if the rule in this State is to be assimilated as near as possible to the English rule, as it is almost universally understood by their writers, that circumstance is essential. for an estate tail is one in which the descent must be to the issue, and the remainder over is always on failure of issue. But he would assume that the rule, as stated by Mr. Jarman, is the true one, and that it is only necessary that there should be a remainder over upon the death of both the tenants for life. "What, then, is the reason for holding that the tenants for life in such cases take cross-remainders by necessary implication ? It is, as Chancellor Harper says, 2 Bail. 445, Chev.Eq. 88, “ on the apparent intention to give over the whole property together as one estateor, as he again says, Chev. Eq. 89, citing Georges vs. Webb, 1 Taunt. 234, “ The method to bring the estate together is to imply cross-remainders.” These extracts show the reason for making the implication, and it is this, that inasmuch as the testator has given over the estate as a whole at the death of both the tenants for life, he must have contemplated that it should be kept together as a whole until the event should happen upon which it was to go over, and the method of keeping the estate together is to imply cross-remainders between the tenants for life. It is clear, then, that the rule was adopted, not for the benefit of the tenants in tail or for life, but for the benefit of the remaindermen, the tenants for life being constituted quasi or implied trustees for the purpose of keeping the estate together. Now, if this be the reason of the rule, and it is the only reason given, it is difficult to perceive why, in any case, the implication is said to •be a necessary one; the general rule in relation to all implication's being that they must be necessary. 2 Bl. Com. 282 ; 1 Y. & B. 466. “An estate by implication,” says Judge Nott, Carr vs. Porter, 1 McC. Ch. 79, “can never be raised to any one except from necessity. And where such implication is raised from the will, the necessity must appear on the face of the same will. And such an implication is never allowed where the provisions of the will can otherwise be carried into effect, for then no such necessity exists.” But, although he did not perceive the necessity himself, yet he would take the rule as he found it, and he contended that it had no application to this case, and that for two reasons. (1.) Because in this cáse the estate for life given to the two brothers is not limited over in remainder at their deaths. Their estate, as he had already said, is a mere usufruct or an annuity, which will simply cease at their death and fall back into the principal estate. The testator does not give that usufruct or annuity to his three nephews, but he gives them the principal estate, or, as he expresses it, “ the whole of the real and personal estate last above given and devised in trust.” The nephews have no interest in any thing given to the brothers. The net proceeds given to them, they, the brothers, take absolutely. (2.) The second reason is, because the testator has himself provided that the estate be kept together. He appoints trustees for that purpose, and directs them to keep his estate, his universitas juris, together. “ There can be no implication against the express provisions of the will,” Smith vs. Clever, 2 Yern. 60; and as “the method to bring the estate together is to imply cross-remainders,” the will in this case leaves no room for any such implication. The estate must be kept together as a whole, and the tenants for life could not, if they would, divide it.
    The cases in the books most like this where the survivor was held entitled to the whole are Townley vs. Bolton, and TucJcerman vs. Jeffries, and Pearce vs. JUdmeads, cited 2 Jarm. 165. It would seem sufficient to remark, as to these cases, that they were decided on the ground that the parties took as joint tenants, and he would not refer to them further were it not that Mr. Jarman seems to think that they might, perhaps, have been decided on the ground that the survivor took by implication. As to the case of Townley vs. Bolton, it was immaterial what view was taken, for in any view the husband was entitled, he by the law of England being entitled to the administration, and as administrator to all bis wife’s personal estate for his own use and benefit. But that case differs from this in the two essential points be had already referred to. The same estate given to the tenants for life was there limited over in remainder, and there was in that case no appointment of trustees with direction to keep the estate together. The same remark applies to the other cases cited. In both of them the estate was limited over, and in neither was there an express direction to trustees to keep the estate together.
    There are other features in this' case which are utterly inconsistent with tbe idea that the testator intended the survivor to take the whole. The will directs the trustees “ to divide the net proceeds annually between my said two brothers, share and share alike, subject nevertheless to the payment of fifty dollars per annum out of each share so divided” to the testator’s sister during life. If the survivor takes the whole, how is this direction to be complied with ? The direction is not only to divide the profits annually, but upon each share so divided an annuity of fifty dollars is charged; not an annuity of one hundred dollars upon the whole, but an annuity of fifty dollars upon each separate share. Does not this show that the testator contemplated an annual division of the income or net proceeds of his estate so long as both brothers lived, and that each share should be charged with an annuity to his sister of fifty dollars a year during her life. Such seemed to him to be the true construction.
    The counsel for the complainant contends that there is no such thing known to the law as an estate pur'autre vie in personalty, and he founds his argument mainly, as he understood it, upon the provision of the statute of Chas. II. in relation to estates pur autre.vie; but the cases of Bales vs. Earl Cardigan, and Jones vs. Randal, would seem to be conclusive on that point.
   The opinion of the Court was delivered by

'YVardlaw, J.

This Court concurs in the decretal orders made by the Chancellor, and in the reasonings by which he has sustained them.

The thirteenth clause of the will of James B. Eichardson, taken as a whole, makes plain the intention of the testator to give to the executors, as trustees, an estate in the residue until both of his .brothers were dead. “During the joint lives of my two brothers” must be construed to mean during the two lives of my brothers, or during the lives of my two brothers joined together ; that is, according to subsequent expositions in the same clause, until the time when, “ at the death of my two brothers,” the nephews shall take the remainder.

There is nothing in the cases mentioned in the decree, nor in other cases that have been cited here, nor in the learning applicable to joint tenants and tenants in common, nor in the scheme of the will, nor in the motives which have been attributed to the testator, that would warrant a decision, either that the estate of the trustees was determined by the death of one brother, or that cross-remainders between the two brothers were raised by implication, so that the moieties of both are now united for the benefit of the survivor.

So much we say, in reference to the points considered by the Chancellor, and we deem it unnecessary to add any thing more to the observations he has made upon those points. But, for the appellant, views, opposed to the decree, have been drawn from the somewhat abstruse doctrines relative to estates pur autre vie in incorporeal hereditaments, and have been pressed upon the attention of this Court with so much earnestness that some answer to them is required.

A summary of the argument is this: the interests given by the will to the two brothers are estates pur autre vie in an incorporeal hereditament, and, therefore, are freehold ; at common law-an executor could not intermeddle with a freehold ; the twelfth section of the Statute of Frauds (29 Chas. II., c. 3, A. D. 1672, 2 Stat. 527) relates only to those estates pur autre vie of which there may be a special occupant; there •can be no special occupant of an incorporeal hereditament; neither the statute 14 Geo. II., c. 20, A. D. 1728, nor the statute 1 Yict. c. 26, § 3, A. D.T887, has been made of force here, nor any equivalent legislation adopted; therefore the interest which John Peter Bichardson, the decedent of the two brothers, had under the will of James B. Bichardson, cannot have been transmitted to the executors of the said John Peter.

The establishment of the conclusion aimed at by this argument would not transfer the interest of John Peter to the surviving brother, Thomas C., but would cause it to revert to the heirs of James B. as undevised realty. 2 Bac. Ab. 562; Estates for Life and Occupancy, B. 1; Doe vs. Robinson, 8 Barn. & C. 296, A. D. 1828.

But some important propositions in the argument are inadmissible. Whether there could be a special occupant of an estate pur autre vie in an incorporeal hereditament, and whether, under a grant to the grantee and his executors, his executor could be such special occupant, are questions that have been much contested in the English Courts; and the better opinion is, that both were there decided in the affirmative before the above-mentioned statute of 1 Vict. was passed. See Ripley vs. Waterworth, 7 Ves. 424, A. D. 1802, and cases there cited by Lord Eldon; Hodgson vs. Gonthwaite, Willis, 500, A. D. 1744. But these questions are not now directly before us: neither of them is here involved except so far as its decision may affect the construction of the twelfth section of the Statute of Frauds. The gift here made by the testator, James B. Bichardson, to each of his brothers, was, as we have above decided, a grant for two lives — one being the life of the grantee; but was to each without addition of heir, executor, or administrator. There was then no special occupant in this case.

The gift was to each brother, of a trust in the balance of the net proceeds of real and personal estate, after payment of specified annuities. The trustees were to manage the estates,' pay expenses and annuities, and divide the balance of net proceeds between the two brothers equally. The estates were not charged; no right of distress, not even of entry, passed to the brothers. The responsibility of the trustees, and the remedy against them, were merely personal; and the right of each brother was merely a right to receive annually from the trustees an uncertain sum of money. It would then be no departure from the general tendency of American law to hold that the interest given to each brother was not an incorporeal hereditament, subject to the rules which govern real estate, nor even, what Lord Hardwicke called a personal inheritance, (Stafford vs. Buckley, 1 Ves. Sen. 178; see also Aubin vs. Daly, 4 Barn. & Ald. 59; 1 Bro. P. C. 327,) where an incorporeal right, in most respects treated as a chattel was granted to a man and his heirs ; but that it was only an incorporeal right in personalty, which is mere personal property, transmissible and distributable as such, like the right to receive dividends o'f stock or to receive money on an ordinary chose in action.

As, however, a portion of the net proceeds now in question must come from lands, and the whole may be said to savor of the realty, (Co. Litt. 20,) we will consider the case as it has been presented, and treat the interest of each brother as an incorporeal hereditament, and as subject, being a trust, to the same rules of descent and conveyance which would apply to it if it was a legal estate.

The twelfth section of the Statute of Frauds embraces every interest, pur autre vie, which is technically called an “ estate.” The first branch of the section makes any” such estate devisable; the second branch, equally comprehensive and providing for all cases where no such devise thereof is made, constitutes such undevised estates assets in the hands of the heir, if it shall come to him as special occupant; and, if there is no special occupant, directs that it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands.” It was an unreasonable cramping of this section, enacted for the amendment of the law,” to restrict its general words to cases where there could be a special occupant. Perhaps it was fair to say that the enactment contemplated no special occupant besides the heir, and the construction, adopted after much conflict, is now received as sound, which holds that, where there was neither devise nor special occupant, the estate in hereditaments, corporeal or incorporeal, went, under the section, to the executor or administrator. Bearparke vs. Hutchison, 7 Bing. 178, A. D. 1830; Doe vs. Lewis, 9 Mees. & Wels. 662, A. D. 1842; Rawlinson vs. Montague, A. D. 1710, note D, 3 P. Wms. 262; Campbell vs. Sandys, 1 Scho. & Lef. 289, A. D. 1803.

No other legislation is required for this case. The above-mentioned statute of 1 Yict. repealed all previous statutes concerning wills, and presented a well-digested system on the subject. It specially mentions incorporeal hereditaments, as it does other matters upon which there had been diversity of opinion; but, before it was passed, the decision last cited had settled, beyond all reasonable doubt, that estates pur autre vie in incorporeal hereditaments were embraced by the twelfth section of the Statute of Frauds.

It is objected, however, that the Statute of Frauds makes an estate pur autre vie, in the hands of either heir or executor, “ assets” only, and that, where such estate goes to an executor, he may, after payment of debts, wheresoever no such statute as that of 14 Geo. II. before cited is of force, appropriate to himself the surplus, without accountability to legatees or next of kin. If this is'so, the executor’s right to take is not thereby affected. Nothing in this appeal requires us to adjudge matters between the executors of John Peter Richardson and persons who may claim an account from them. We presume that the decree in favor of those executors proceeded upon the ground, apparent to the Chancellor, that the estate pur autre vie which their testator had, was not devised by him and is included in a residue not disposed of by his will. It may not, however, be amiss to remove all impression, which our remarks might otherwise make, that any doubt is entertained in this Court about the accountability of John Peter Richardson’s executors for all that they may receive from the estate pur autre vie.

The doubt raised by the case of Oldham vs. Pickering, 2 Salk. 466, A. D. 1696, which gave occasion for the declaratory statute of Geo. II. before mentioned, probably never reached the Province of South Carolina. Later cases would, it seems, have removed the doubt in England, if that statute had never been passed. See Ripley vs. Waterworth, 7 Ves. 424; Devon vs. Atkins, 2 P. Wms. 381, A. D. 1726; Devon vs. Kinton, 2 Vern. 719. Certainly, there, an executor, however he may have been privileged in the Ecclesiastical Courts, would, in chancery, have been held to make distribution of an estate pur autre vie, which, without devise, came to him under the Statute of Frauds. Witter vs. Witter, 3 P. Wms. 100, A. D. 1730, and cases before cited. At some very early period in the colonial history of this State, in some way, there was an abrogation of the English law which permitted an executor to appropriate to his own use the surplus of the residue of ■his testator’s goods, where no implication of a contrary intention on the part of the testator was discoverable. See Taylor vs. Taylor, 1 Rich. 571; Purvis vs. Cobb, 5 Rich. Eq. 469; Lindsay vs. Say, 1 Des. 150. How the change was made it is not easy now to ascertain. Perhaps it may have come from the Act of 1745, 3 Stat. 666, the allowance of commissions having probably been regarded as equivalent to an adequate' legacy to ■ the executor, which latter was in England considered a sufficient indication of the testator’s intention to deprive the executor of the surplus. But of that Act (which is copied from Grimke’s P. L., because the original was lost before the Statutes at Large were published) several sections are omitted, and the preamble refers to practice concerning returns to the office of the Secretary of State, about which no previous legislative provision is now extant. Of many older Acts we have had for the last century nothing but the titles, and it is not unlikely that the Act of 1745 recognized, rather than established, the accountability of an executor, as of an administrator, for every portion of the testator’s property which came to his hands. However this may be, and whatever may have been the origin of our rule which enforces an executor’s accountability, the rule is general, and would no doubt apply here to the surplus of an estate pur autre vie, even had it been decided that, for that an executor would not in England be held accountable, if only the Statute o^ Frauds there modified the common law. Late statutes have there made an executor accountable for every surplus, as the Stat. of Geo. II. had before done in respect to the surplus of an estate pur autre vie.

The motion is. dismissed.

Dunkin', G. J., and Inglis, J., concurred.

Appeal dismissed.  