
    *John H. Wilson and Wife v. Maria Freer, and Others.
    Testator by his will devised his plantation to his son Charles in fee, but if he should die under age and without issue, then to be kept for the use and maintenance of his wife and unmarried daughters, and on marriage to be sold and equally divided between his wife and surviving daughters. Charles died under age, and without issue leaving four sisters, the mother having died before ; one sister died shortly after, unmarried; two afterwards married and died leaving issue, and the last died lately,unmarried : Held, that the devise to Charles was a fee simple, defeasible on. his death under age and without issue; that the limitation over to the wife and daughters was contingent, and must fail, because at the event on which it was limited over there was none answering the description to take ; and that, on the death of Charles, the fee reverted to testator’s right heirs, and those answering the description of heirs at that time take. [*552]
    Heard before Chancellor De Saussure, Charleston, January Term, 1831, who pronounced the following decree :
    William Stanyarne, the testator, died on the 5th May, 1183, leaving alive his wife Anna, and the following children -his son Charles, and his daughters Elizabeth, Mary, Frances, and Anna. The widow of the testator died in 1183 or 1184. The son Charles also died soon after, under age and without issue ; then the daughter Frances died unmarried. Elizabeth married John Wilson, survived her husband, and died in 1804. leaving issue John, William, and Sarah Wilson.
    Mary married Charles Freer, survived her husband, and died in 1811, leaving issue Frances, Maria, Charles, and John Freer. The sons, John and Charles, are dead, leaving wills, which have been proved, and the executors have qualified.
    The testator’s last daughter, Anna, died in the year 1836, unmarried. She devised her estate to Maria A. Freer.
    By his last will and testament, duly executed, William Stanyarne devised his plantation on John’s Island, to his son Charles, his heirs and assigns for ever : Provided, that if his son Charles should die before he attained the age of 21 years, without issue of his body lawfully begotten, then in that case, the plantation so devised to him, should be kept for the use, profit and maintenance of his (testator’s) wife, Anna Stanyarne, and all his surviving children, or child, for the use, profit and maintenance of all his unmarried children, until the day of marriage. Then and after, the said plantation should be sold by his executor and executors, and the money arising therefrom should be equally divided between his wife and surviving daughters or daughter, share and share alike, to them and their heirs for ever
    The first devisee of the land, Charles, having survived his father, the estate vested in him, but he dying afterwards under age, and without lawful issue of his body, the devise to him failed and the estate was divested.
    The estate continued to be held and enjoyed by the surviving children, who died successively in the order above stated.
    The daughter Anna, who survived all the rest, having died in 1836, unmarried, the question which now arises is, whether any *and what persons are entitled to the plantation in question, under the will of L the testator or otherwise.
    It is certainly an obscure will, and it is not easy to form an opinion entirely satisfactory to the mind. The description of those who are to take under the devise, does not seem to apply to any of the parties in the events which have occurred. s'
    Then it is a case of intestacy; and as such, the estate is descendible to those who were the heirs at law, or is distributable under the statute of 1191. On the death of Charles Stanyarne, the first devisee, unmarried and without issue, the devise to him failing, the fee descended to the heirs at law, to await the contingencies provided for by the will. These not having occurred, the question recurs, who are those heirs ? Charles, the first devisee, died after his mother and sister Frances, and before the enactment of the statute of February, 1191, which abolished the rights of primogeniture.
    The estate then descended to his sisters, Mary, Elizabeth and Anna, subject to be defeated if the contingencies had occurred. (For Anna, the survivor, never married.) The plantation or proceeds of the sale must be divided into three equal parts, and paid over to the respective heirs, or devisees of the said Elizabeth, Mary and Anna; and it is so ordered and decreed.
    The cases cited by the counsel on each side were embarrassing, as they seemed to present similar circumstances; but on examination, they are not found to be identical. Indeed, few cases under wills, and depending on contingencies, are ever found to. be precisely alike ; and the variation of a single fact, or feature in the case, often changes the right and the decision.
    From this decree, an appeal was taken on the ground:—
    That according to the true construction of the will of William Stanyarne, the fee in the plantation descended, on the death of Anna Stanyarne, unmarried, to those who were then next of kin to the testator, to wit: the children of Mary Freer, deceased, and of Elizabeth Wilson, deceased.
    
      I) unkin, for appellant.
    
      Petigru, contra.
   Chancellor Johnson

delivered the opinion of the Court.

When the will of the testator is properly analyzed, it will be found to contain the following dispositions of John’s Island ^plantation :— [-*550 1st. To his son Charles in fee, but if he should die under twenty- L one, and without .issue; then, 2dly. To be kept for the use, profit and maintenance of the testator’s wife, and unmarried children, until the day of their marriage; and then, 3clly. To be sold, and the proceeds divided equally between his wife and his surviving daughters.

Charles died under twenty-one, and without issue, leaving four sisters, Elizabeth, Mary, Frances and Anna, surviving him, (his mother having died before;) Frances died afterwards, unmarried, intestate, and without issue ; Elizabeth and Mary have died since, both leaving issue ; and last of all, Anna died unmarried in 1836.

It seems to be conceded on all hands, that the daughter, Anna, was entitled to the use and profits of the plantation up to the time of her death, being the only child remaining unmarried, and that the limitation over to the wife and surviving daughters of the testator, must fail, because at the event (the death of Anna) on which it was limited over, there was no one in being, falling within the description of those entitled to take. The devise to Charles, having failed also, the fee necessarily reverts to the right heirs of the testator; and the question is, whether those coming within that description at the death of Charles, or the death of Anna, are entitled to take.

The devise to Charles, is in terms a fee simple, defeasible in the event of his dying finder twenty-one, and without issue, and on his death under twenty-one, and without issue, the fee necessarily reverted to the right heirs of the testator, unless it vested in the wife and daughters, under the devise over. That it did not, I think is very clear. In Monkhouse v. Holme, 1 Bro. C. C. 298, Lord Ellenborough says, that when the time is not annexed to the form, but to the substance of the gift, the interest is contingent, and the true question always is, whether the event on which the estate is limited over, is in the nature of a condition, without which the testator would not have them to take : and there is, perhaps, no case which would better illustrate the rule. The devise over here, is to the wife and surviving daughters after the marriage of all his daughters, the survivorship being the event, without which it is apparent the testator intended they should not take. Their interest in the fee was therefore merely contingent. The fee, as before remarked, vested in the right heirs of the testator, on the death of Charles; and the event on which it was limited over, not having occurred, it still abides in them. Conse*6631 *cluen%> none can take, but those who answered the description of heirs at that time. All the sisters were then living and were entitled to the inheritance in common. On the death of Frances, without issue, and intestate, afterwards her interest vested of course in her surviving sisters. The children of Elizabeth Wilson, their heirs, or devisees, are therefore entitled to one-third of the estate; the childen of Mary, their heirs, or devisees, if -any of them be dead, are entitled to one other third part; and Maria A. Freer, to the remaining third, under the devise from Anna. Such, I understand, is the import of the Circuit decree. The appeal is therefore dismissed.

Chancellors Harper and Johnston, concurred.  