
    Maria Dupont vs. E. L. Hutchinson and others.
    
      Wills — Limitation of Estates.
    
    Testator made separate devises of real estate to his two daughters for life, with remainder to their children, and “should either of my daughters die leaving neither child nor children, then the estate bequeathed to her for life shall descend to the child or children of my other daughter, and my son H., their heirs and assigns forever.” M., one of the daughters, died leaving no child, but leaving H. and two sons of her sister surviving her: Reid, that the two sons were entitled to divide the estate with H. equally and per capita.
    
    BEFO RE WARDLAW, J., AT CHARLESTON,
    JANUARY 1857.
    Wardlaw, Ch. Mathias Hutchinson, by his Will, devised certain real estate to his daughter Maria, “for life, and after her decease, to the child or children of her, the said Maria Du-pout, which may be born and alive at the time of her decease; but for want of such child or children, the said property to return and be considered as a part of my estate, and be disposed of as I shall hereinafter mention and direct;” and devised certain other real estate to his daughter Mary, “subject to all the limitations and provisions” of the estate, the use of which had been given to Maria; and further provided, “ that, should either of my daughters die leaving neither child nor children, then the estate bequeathed to her for life shall descend to the child or children of my other daughter, and my son Edward Louis Hutchinson, their heirs and assigns forever.’’ Maria died without ever having had a child, and Mary died in 1848, leaving, by two husbands, two sons, namely, Hutchinson D. Firth and Edward L. Whitaker. The question submitted to me, is, whether the estate given to Maria for life is to be divided equally among E. L. Hutchinson, H. D. Firth, and E. L. Whitaker, or to be divided in such manner that E. L. Hutchinson shall receive one half, and the two sons of Mary the other half between them. The Master, in his report, adopts the former view, and E. L. Hutchinson brings the matter under the review of the Court by way of exception.
    The exceptant must prevail, if the limitation over be void for remoteness, and the estate be left to descend under the Statute of distributions, or if the context of the will demonstrates the intention of the testator, that on the happening of the contingency the estate should be divided per stirpes.
    
    My opinion, however, is against the exceptant on both points. As to the validity of the limitation over, it is sufficient to refer to the case of Mathis vs. Hammond, 6 Rich. Eq. 399. And as to the mode of division, the case seems to fall within the principle declared by Chancellor Harper in Conner vs. Johnson, 2 Hill’s Ch. 43 : “if there be a devise to an individual designated by name, and to other individuals designated as a class, as to A and the children of B, all the individuals take equally, and per capita.” See also Butler vs. Stratton, 2 Bro. C. R., 367; Perdria vs. Wells, 5 Rich. Eq. 20, An exception to this general rule is established in Cole vs. Creyón, 1 Hill Ch. 319, to the effect, that in a bequest to an ascertained individual and to a class of unascertained individuals, (to be ascertained at some future time after the death of the testator,) one-half shall go to the ascertained individual, and the other half to the class when they shall be individually ascertained. This exception seems to proceed on the princi-pie that the titles of the devisees accrue at different times. Butin this case all the devises are contingent upon the death of Maria Dupont without leaving children, and upon the happening of that contingency all the devisees were fixed and ascertained, the children of testator’s other daughter as much as E. L. Hutchinson. See the cases cited, and the reasoning _ in Cole vs. Greyon, also Barksdale vs. Macbeth, 7 Rich. Eq. 125.
    It is adjudged and decreed that the exception be overruled, and the report be confirmed.
    E. L. Hutchinson appealed upon the ground :
    
      * That the intention of the testator, as evidenced by the word “ descend,” in reference to the interest which his grand children were to take in a certain event, as well as by the context, clearly contemplates a division between the son, and those grand children in moieties.
    
      Petigru, for appellant.
    
      Porter, Macbeth, contra.
   The opinion of the Court Ws delivered by

Wardraw, Ch.

This Court approves the decree, and it is not necessary to expatiate on the grounds of appeal.

The testator provided for the children of either of his daughters on equal terms contingently, and evinced no expectation of the previous death of one rather than the other. If in event Maria had died childless, before Mary, having chil- | dren, the children of Mary would have taken portions of the \ estate primarily given to Maria, although their mother was living and distributee of testator and of her sister by descent.

It is manifest,-then, that the testator could not have intended ] the equivocal word “descend,” to have the technical meaning of proceed to the heir.

It is ordered and decreed that the decree be affirmed and the appeal dismissed.

Dunkin and Dargan, CC., concurred.

Decree affirmed.  