
    Selden v. King.
    [October Term, 1799.]
    Wills — Construction—Estates Tail. — what shall be construed an estate tail, and not an executory devise.
    Same — Same—Same—Case at Bar. — Testator devises, that if bis wife be with child and said child lives and prove a male child and lives to 21 years of age, a house shall be built on his land, and that he shall have the privilege of part of the pasture and woodland and shall enjoy the sam e peaceably; and after the decease of his mother, then he gives him and the heirs of his body all his lands, houses and appurtenances, both real and personal, forever: but if the child proves a female and lives till 21 or marriage, she shall have one half his personal estate, and all his lands to her and the heirs of her body forever: But if the said child should die, then he gives to his wife and her heirs forever, all his lands, slaves, stocks of cattle, &c.; and appoints her and her father executors of his will. The child proved to be a daughter. On her birth she had a vested remainder in tail, with remainder in fee to the testator’s wife.
    In ejectment the jury find, “That Joseph Achilly, being seized in his demesne as of fee *of the premises in the declaration mentioned, did, on the 11th day of March 1699-1700, duly make and publish his last will and testament, wherein he devised in manner and form following to wit, And as for what worldly goods, my God hath been pleased to bless me withall, and after my just debts and funeral charges and expenses are fully satisfied contented and paid, I give and dispose of the same as followeth: I give and bequeath unto my dear and loving wife Mary Achilly and her heirs forever, in manner as followeth, that is to say, if my said wife be with child arid the said lives and prove a male child and lives to the age of twenty one years my will and desire is that there be built out of my estate a good forty foot dwelling house of brick upon the land near a mulberry tree standing between my now dwelling house and the river side and that he shall have a free privilege of part of the pasture as also privilege of the wood land ground for fencing and fire wood and he to enjoy the same peaceably and after the decease of his mother then I give and bequeath unto him and the heirs of his body lawfully begotten forever all my lands houses and appurtenances both real and personal; and it is my further will and desire that the child wherewith my wife goes withall proves to be a female and shall live till she attains of lawful age or married that then she shall have the one half of my personal estate and after the decease of her mother she shall enjoy all my lands houses, tenements and appurtenances to her and to the heirs of her body lawfully begotten forever. Item it is my further will and pleasure that if the child should die wherewith my wife now goes withall then I give and bequeath unto my said dear and loving wife Mary Achilly and her heirs forever, all my lands nouses negroes stocks of cattle, horses, sheep, goods and chattels moveable and immoveable, also all my debts that is due owing *and belonging to me in this county or in any other part or place whatsoever. Item it is my further will and desire that none of my negroes be removed off or carried away from the plantation whereon I now live but that they shall live and be together, and lastly it is my will and desire that my dear and loving wife with her father be my whole and sole executors of this my last will and testament.
    “That the premises in the declaration mentioned are the lands devised by the said will.
    “That the said Joseph Achilly died seized as aforesaid, before the 12th day of April 1700, without revoking or altering the said will.
    “That, at the time of his death, his wife Mary Achilly was pregnant, and soon after was delivered of a daughter who was named Achilly Achilly; that the said Joseph Achilly had no other issue; and that she was his heir at law.
    “That Mary, the wife of the said Joseph,, entered upon, and was possessed of the premises in the declaration mentioned, under the said will; that being so possessed of the estate thereby devised to her, she intermarried with a certain John King, by whom she had issue a son named John grandfather of the defendant: who is heir at law to the said Mary Achilly, and to the said John King her son. That Achill3r Achilly the daughter intermarried with a certain Bartholomew Selden; who was possessed, in her right, under the will, of the premises in the declaration mentioned.
    “That being so possessed, the said Bartholomew and Achilly his wife by deeds of lease and release indented, conveyed the said lands to Joseph Selden; which said lease bears date on the twenty second, and the said deed of release on the twenty third day of May 1722.
    *“That the said deeds of lease and release are in these words. ‘This Indenture &c. (setting them forth.’)
    That the relinquishment of the said Achilly the wife, to the said deed of release is in these words. “At a court held for Nansemond county May the 23d 1722, Bartholomew Seldon and Achilly his wife came into court and acknowledged the above deed of release for lands &c. unto Joseph Selden, which on his motion is admitted to record; also the said Achilly being first privately examined, came into court and relinquished all her right, title and interest of in and to the said lands which is also admitted to record.
    “That the. said Joseph Selden on the twenty third and on the twenty fourth days of July 1722, reconveyed the premises in the declaration mentioned to Bartholomew Selden aforesaid by deeds of- lease and release, indented in these words. This Indenture, &c. (setting them forth.)
    “That the said Achilly Selden died about the year 1722; having never had issue. That shortly afterwards, the said Bartholomew Selden intermarried with a certain Sarah Hilliard.
    “That the said Bartholomew Selden, being possessed of the premises in the declaration mentioned under the conveyance last aforesaid, did on the fourth day of January 1726-1727 duly execute and publish his last will and testament in writing, wherein he devised as follows. As touching all my temporal estate, and the disposition of it, I give and dispose thereof as followeth. Imprimis. I will that my debts and funeral charges shall be paid and discharged. Item. I give unto my beloved wife the land I now live on, and my land that is at Hampton during her life; but, if she proves with child, as I expect she is, my will is, that the child, lawfully begotten of my bodj', to inherit the land after her ^'decease, to him or her heirs forever. Item it is my will that if my wife should not prove with child, I give all my fore-mentioned land, after her decease, to my brother John Selden to him and his heirs forever. Item. I give to my beloved wife two negroes called Buckroe Tony, and old Tony, likewise two children called Betty and Nanny. All the rest and residue of my personal estate, goods and chattels whatsoever, I give and bequeath to my loving wife, making her my full and whole executrix of this mjr last will and testament.
    ‘ ‘That the premises in the declaration mentioned are described in the said will by these words, the land I now live on.
    “That the said Bartholomew departed this life, so as aforesaid possessed of the premises aforesaid, a few days, after the’ execution of this said will; that he had no lawful issue, and that his said wife Sarah, who is named in the will, survived him, and lived until the twelfth day of June in the year of our Lord 1778: That she was possessed of the land in the declaration mentioned, and parted with her right to one James Kirby, who was possessed of the same; and John King son of Mary, sueing a forcible detainer, an agreement was made between them in these words. ■'Indented articles of agreement made this 27th day of January 1727, between James Kirby and John King both of the upper parish of Nansemond county, witnesseth that the parties above mentioned, for a final determination of all differences and law suits now depending between them, have agreed, in manner and form following, that is to say, to withdraw a juror, on the forceable inquest now depending; and the said Kirby quits claim, and now, by the delivery of the key of the Mansion house door, delivers in name of possession of the said house and lands, that were Bartholomew Selden’s at the time of his death, quiet and *peaceable possession to the said King; and the said King is to pay unto the said Kirby ten pounds current money, on demand, and to finish for the said Kirby the tobacco house, now raised by the first of May next; Kirby to find nails and the said Kirby’s to have the use of the hall and parlour chamber, until the said first of, May; and the said Kirby’s to have the fifth hogshead of cyder made on the said land, during his life, the said Kirby beating the same with his servants; and the said Kirby’s to have common of pasture, in the said lands, for thirty head of cattle and horses, during his life; and both parties are to keep the pasture fence in repair, in proportion to the number of hands each shall yearly employ on the same; and the said Kirby’s to have liberty to tend and inclose as much land, contiguous to the said tobacco house, as he can work with four hands, and no more, paying yearly and every year when lawfully demanded one ear of corn rent. In witness whereof the parties above named have hereunto set their hands and fixed their seals the day and year above written and agree this concord shall be recorded at equal costs of the parties.’ ”
    Ms
    James ¡*¡ Kirby, (E. S.) John King. (L,. S.)
    ("Witnesses.)
    Daniel Eelbank,
    James Everard,
    Andrew Meade,
    David Osheal.
    “That John King, son of the said Mary Achilly, entered upon the premises, in the declaration mentioned, in the month of January 1727, under the said agreement and as heir at law to the said Mary Achilly, and died possessed ^thereof, and that, from him, the possession thereof hath come to the defendant, who now holds them, as his heir, and as the heir of the said Marjr Achilly.
    “That the said John King, the son of Mary and those that held under him, always claimed, and that the defendant claims title in fee simple to the premises as heir to the said Mary Achilly and John King. That the said Kirby died about sixty years before the bringing the suit.
    “That John Selden, mentioned in the will of Bartholomew, survived him; and made his last will and testament, in writing, bearing date the 27th of December 1754; wherein he devised in manner and form following, to wit: ‘I give unto* my- son Joseph Selden my plantation and tract of land, lying and being in the county of Nansemond and late in the possession of Bartholomew Selden, to him my said son and his heirs forever; he paying and discharging my bond to Major Robert Arm-istead for one hundred and fourteen pounds.”
    “That the said John Selden died soon after, and that he was not possessed of the premises in the declaration mentioned, either at the time of making his said will, or at his death.
    ‘ ‘That his said son Joseph Selden survived him, and paid off the bond to Arm-istead in the will mentioned.
    “That Joseph Selden, last mentioned, not being possessed of the said land, did on the 23d day of December 1774, seal and execute a deed of bargain and sale, whereby in consideration of the sum of six hundred pounds current money of Virginia, he granted bargained and sold unto John Selden and his heirs, all that tract or parcel of land situated, lying and being in the county of Nansemond and now in the possession and occupation of Doctor John King and is the said lands mentioned in the will of Joseph *AchiUy, bearing date the eleventh day of March 1699-1700 and therein devised to the child the wife of the said Joseph was then big withal, which said child proved a female called Achilly Achilly, and intermarried with Bartholomew Selden, who thereupon being in possession of the said lands together with his wife Achilly by their deeds of lease and release bearing dates the 22d and 23d days of May in the year of our Lord one thousand seven hundred and twenty two, did convey all their estate right, title, interest, claim and demand of in and to the said lands to Joseph Selden of the parish and county of Elizabeth cit3r gentleman and to his heirs and assigns forever, who afterwards reconveyed the same to the said Bartholomew and his heirs forever, by deeds of lease and release bearing dates the 23d and 24th days of July 1722, who thereupon being seized and possessed devised the same by his last will and testament bearing date the fourth day of January 1726-1727 to his brother John Sel-den and his heirs forever, having previously given therein to his wife the same for life, whereby the said John Selden being entitled to the said tract or parcel of land after-wards to wit, the 27th of December 1754, by his last will and testament did amongst other things devise to Joseph Selden party to these presents as follows the said tract or parcel of land: Item, I give unto my son Joseph Selden my plantation and tract of land lying and being in the county of Nansemond and late in possession of Bartholomew Selden to him my said son and his heirs forever, he paying and discharging my bond to Major Robert Armistead for one hundred and fourteen pounds.
    “That the said John Selden died in March 1775 intestate; and that the lessor of the plaintiff is his heir at law.
    
      *They fiad the lease entry and ouster in the declaration mentioned; and if upon the whole matter, the law be for the plaintiff, then they find for the plaintiff;1 and if for the defendant, then they find for the defendant.”
    The District Court gave judgment for the defendant; and the plaintiff appealed to this Court.
    Call, for the appellant.
    Hade three points:
    I. This was not a remainder in the mother, after the previous estate tail to the daughter.
    A contrary construction would not have consisted with the general intention of the testator, but would have entirely disappointed it in several events which might be named. Thus if the wife had had twins they .would have been disinherited. For there is no provision for such a case; and therefore, the previous estates being all removed, the wife would have taken immediately. So if a son had been born, had married and died under age leaving issue, that issue would not have taken, but the wife; as in that case, there is no provision for the son’s issue.
    Besides, if the child had proved a son, the wife would not have had a fee, in the event of his attaining 21, and then dying without issue; for the remainder is only limited on the estate of the daughter, and not on that of the son.
    Again the wife, according to that construction, was not entitled to the personal estate; for it was a limitation after failure of issue in the daughter; who consequently took the whole interest, which on the marriage vested in the husband. But if the child had proved a son she would not have been entitled thereto, because no provision is made for her as to the personal estate in that case.
    Lastly, it is wholly improbable, that the testator would have given his wife, after her death, a remote interest of this kind, in preference to his “child, whom he had all along preferred, in disposing of the immediate interest.
    II. That it was an executory devise to the wife, to take effect on the child’s being born dead, which event not having happened, the reversion in fee descended on the daughter, as heir at law to the testator.
    The word die, in the concluding part of the devise, is to be set in opposition to the first word lives, in the beginning of it. For the word lives^ is twice repeated in the beginning, and should be taken in two different senses, or else some of the words must be rejected; contrary to the known rule of construction, that effect is to be given to every word, if possible. Therefore in the beginning, the first word lives, is to be taken in the sense of born alive; and the second, in the sense of continuing to live till twenty-one, in the case of a son, or till 21 or marriage in the case of a daughter; and it is to the first of these senses, that is to say born alive, that the word die, in the conclusion of the devise, is to be set in opposition.
    The testator therefore had three contingencies in view, at the time of making his will; that is to say. 1. The birth of a living child. 2. Its arriving to the age of maturity. 3. The death of that child before its birth.
    With the two first of these contingencies in mind,' he considered how he should dispose of the estate, first, in case the child should be born alive, and prove to be a son; secondly, in case it should be born alive, and prove to be a daughter: In both cases predicating the disposition upon its being born alive. His reasoning was thus; if my child should be born alive, and should prove to be a son, then I give my estate this way; but if it should be born alive, and should prove to be a daughter, then I give it that way; making the limitation in both instances to depend on the first word lives, in the commencement of the devise.
    But, having provided for all the cases should the child be born alive, he next determines, what should be done with his estate, in case the child should die before its birth. In this case, having no dearer object to provide for, he gives the whole estate to his wife. So that, according to this construction, all the leading contingencies which he had in view are provided for; and the interest of his family preserved, with a prudent regard to events.
    This mode of considering the subject is the most obvious, and results necessarily from the intention of the testator; who in the last limitation was not contemplating the failure of the issue of his daughter, but of himself; and was providing for the latter event only. But the interpretation receives additional force, from the manner of the expression. For the words used are unapt, and not so obvious as many others, for disposing of the remainder; So that they appear to have been anxiously used in order to distinguish it from a limitation, on the daughters estate.
    Consequently, in the events which have happened, the wife took nothing in the lands, after her daughters death without issue; because she was only to take the fee in case the child died before its birth; and therefore her only interest was an estate for life by implication, although, as before mentioned, if the child had died under 21, and before marriage she would have taken the fee, upon the rule in executory devises, that where the prior estates are removed, the devisee takes presently; Because the events, on which the remainder was limited would, in that case, never have commenced.
    This construction is preferable to the other; because it avoids the inconveniences which have been enumerated. For if a child was born, and *lived to the prescribed period, it was provided for; and a comfortable disposition made for the mother also: If a son had been born, had married, had issue, and died under 21, he would have taken; So in the case of twins: And, if no child at all had been born, the wife would have taken the whole.
    In short by this construction the testator is not made to violate nature, and act inconsistently with himself, in giving away the remainder from the issue of his blood, for whom in every other instance he shews a preference in order to bestow it upon strangers. For to strangers it must probably have gone; as the daughter was not to take until the mothers death; and therefore it was most likely that the ultimate limitation would be enjoj'ed by the mothers representatives, and not by the mother herself.
    III. That if the last construction be rejected, then the word die in the conclusion of the devise is to be contrasted with the words shall live till she attains of lawful age or married, in the clause immediately preceding; and then it will be a contingent remainder to the wife, if the daughter should die unmarried before 21: which contingency never having happened, the remainder never vested; and therefore descended on the heir at law.
    Wickham contra.
    Contended that it was a devise to the wife for life by implication, remainder to the daughter in tail, remainder to the wife in fee. The word die is to be understood as a dying without issue, which words the court will supply, in order to effectuate the general intention of the testator. This is the interpretation which a plain man would put upon the case; and the meaning put upon the words by the appellants counsel is artificial altogether. That the court may supply the words without issue is proved by many of the English cases Spalding v. Spalding, Cro. Car. 18S, 1 Will. 427, 234, 2 Vez. 194; 8 Mod. 59.
    But supply those words, and then it *is but the common case of a plain vested remainder after the death of tenant in tail without issue. As to the inconveniences mentioned, from supposed cases which might have happened, they never were contemplated by the testator, and therefore cannot be argued from. But the consequences which are contended for, would not have followed from those cases. Thus in the case of the twins it would have been considered as a casus omissus, and therefore the will would have been rejected in favor of them. So in the case of a son being born, marrying and dying under the age of 21 leaving issue; for the issue would have taken on the same ground. But in fact the son would have taken an immediate estate on his birth; for the contingency of his arriving to the age of 21 only applies to the privileges which he was then to have out of the estate, 1 Burr. 228; Jones v. Westcomb, Free. ch. 316.
    The argument drawn from the personal estate has no influence: for at most it only proves the testator to have attempted to create a perpetuity. But a difference of construction may be applied to the words as relative to the real and personal estate. Forth v. Chapman, 1 Will. 663.
    The construction contended for, on the other side would go to establish, that there might be an executory devise after an estate tail; contrary to a known rule of law. Besides the idea, of leaving the fee to descend upon the heir at law, is repugnant to the intention of the testator; who, in the preamble to his will, professes a design to devise his whole estate.
    But if the construction of the will were against us, stilt the plaintiff could not recover; because the lease and release did not convey the estate; for the wife was not examined as to the lease. Those conveyances however, operate merely on the possession ; but here was none; and there is no privity between the relessor and re-lessee.
    *The length of time is a bar; for the defendants and those under whom they claim have been in possession 70 years. Sarah Hilliards life estate make no difference; for she parted with it, before the year 1727. The defendants ancestor, if he had no title under the will, was a dis-seissor; and the disseisin of tenant for life is the disseisin of him in remainder, Co. Bit. 250 (b.) 9 Rep. 105. Besides the accord here was a forfeiture of Kirbys estate ; and from that time, the remainderman might have entered, Co. Bit. 252. (a.)
    Again there was a dying seized which tolled the entry; and several of the conveyances, under which the plaintiff makes his title, were by persons out of possession; who therefore were unable to convey: Particularly by bargain and sale; which always supposes possession, 2 Black, com. 332.
    Call in reply.
    The child could not have taken before 21; for the contingency is express and runs through the whole devise; and therefore no estate in the child, upon that limitation, could come into existence until the event had happened. The case from 1 Bur. 228, was a case upon the known doctrine of an exception out of the general devise, Fearn. 438; and therefore will not. apply to the case under consideration. For the devise in the present instance was not an exception, but an express condition ; and therefore necessary to be performed, before the estates could arise, Fearn. 438-9. The argument that there can be no executory devise after an estate tail proves nothing. Because although that is true where the attempt is to create an executory devise, upon the preceding limitation in tail, yet we do not contend for this here; but that it arises upon an event independent of the estate tail, having no connection with it, and which may happen before it. In short it is a mere alternative devise altogether. If a child was born and lived till 21 in the case of a son, or of 21 or marriage in case of a ^daughter, then the estate tail was to arise; which is one alternative: But if no child was born, then in that event, which is the other alternative, the executory devisg to the mother was to take place. It is admitted that the remarks relative to the personal estate are correct, but then it said that ought not to prevent her taking the real estate. This however only proves what I contended for, that the construction goes to disappoint the will of the testator.
    The lease and release was a sufficient convej'ance. For the recital of the lease in the release made both of them the wifes deed. Besides the tenant was rightly in under the husband, and therefore the release operated to enlarge the estate: Or if the husband had no authority, then it was a discontinuance, and the release past the right.
    The reversion was well conveyed by Joseph Selden to John; for the bargain and sale passed it. 1 Bac. abr. 275; 2 Black. Com. 290; Plowd. 154; and that another was in possession will make no difference, unless it had been adverse to the remain-derman himself. The passages from Coke prove nothing to the contrary, as they only shew, that the remainderman may consider himself as disseised, if he will; but they do not oblige him to enter. The opinions, : there stated, were introduced merely for the sake of the assize of novel desseisin; and therefore it was expressly held, in Taylor v. Hord,'Cowp. 689, 703, that the remainderman might elect to consider himself disseised or not. Besides there could be no disseisen here, as the verdict states, that Sarah Hilliard parted with her right to Kirby, and that he parted with his to King; so that King was lawfully in possession and therefore could be no disseisor.
    That a descent was cast makes no difference ; for that doctrine onlj’ applies against one having a right of entry; which the re-mainderman here had not. Therefore the remainder, in the present *case, was well conveyed; and the right is not barred by the statute of limitations.
    Cur. adv. vult.
    
      
      Wills — Construction.—-The principal case is cited in Hayes v. Goode, 7 Heigh 496.
    
   ROANE, Judge.

This case depends tipon the construction of the will of Joseph Achilly dated on the 11th of March 1699-1700. And, before I go into this construction, I will mention two or three principles, which I hold to be incontestible, and, under the influence of which, I think that construction ought to be made.

1. Then it is a rule, that in construing a will the intention of the testator should be collected from the whole instrument taken together; every expression should have its due weight; and, as is some where said, every string should give its proper sound.

2. It is also a rule, that the construction ought to be made as at the time of the death of the testator; and ought not to be differed in consequence of a contingency, therein contemplated (but the event of which was unknown to the testator at the time,) having afterwards happened the one way or the other. This principle will take into the consideration of the present case the devise to the son (although none was in fact born,) and the consequences resulting therefrom; which must be supposed to have been in the contemplation of the testator.

3. That where the testator does not use proper technical words to express his meaning, the court may supply them, in order to effectuate the manifest intention of the testator; and for such purpose only.

Under the influence of these principles a difficulty arises, as to the words which are to be supplied after the words, if the child should die, in the ultimate devise to the wife; it being evident that some must be supplied, as a dying simply is not a contingent event, but naturally certain. *The words, “without issue;” and “under the age of twenty one;” or in the event of there being a daughter “before marriage,” have all been assumed; and the question is, which of them shall be adopted?

In the devise to the son, if the words, live to the age of twenty one years, be considered as only extending to the time, when the privilege, as to the house and part of the land, is to commence (notwithstanding the mother may be alive,) but not as a condition precedent to the vesting of his interest in the land on the death of the mother, the words in the same clause “and after the decease of his mother then” will have their full effect; whereas by a contrary construction those words will have no-effect, in case of the son being under age at the time of the death of the mother. Eor, notwithstanding her death, he could not have succeeded under that construction ; because not of the age of twenty one years.

But it would be improper to construe a provision in his favour, predicated upon the event of his mother being alive at the time of his coming of age, to narrow a right given by the same clause to succeed to the whole land, upon the death of his mother.

The intention of the testator relative to-both his son and daughter (for the material words in both the devises are substantially alike as far as concerns the present question) is to give a provision by way of support, when they respectively arrive to lawful age, or the daughter marries; but he never could have meant, nor can we so expound the will, without rejecting some of his words as above, that their interest in the lands, after the death of the mother, should be postponed to the same period; and, in the event of their not attaining to lawful age, be lost. This, in the case of the son, would be to pretermit his children, if he died under age leaving any, in ^favour of the heirs of the testators wife (perhaps by another husband;) which it is presumed the testator cannot be supposed to have intended: Especially as the wife, on my construction, has a present interest for life in the whole land, and a remainder in fee expectant upon the extinction of the testators lineal descendants.

Besides I hold it to be a circumstance of some weight, in ascertaining the testators intention, that my construction of it conforms to a very usual mode of settlement, limiting an estate for life, remainder in tail, remainder in fee.

With respect to the operation of conditional words, by way of condition, precedent or otherwise, it is not necessary to go-into that doctrine: as, in this case, the intention of the testator restricts the conditional words to the privileges contemplated, and does not extend them to affect the right to the land, on the death of the mother: But if so, then upon the birth of the daughter, she had a vested remainder in tail, remainder in fee to the wife; and upon the death of the daughter, without issue, the wife, and the defendant claiming under her, became entitled to the land in question. Therefore I think the judgment ought to be affirmed.

CARRINGTON, Judge.

In the construction of wills, the testators intention should be the rule of decision. By that standard, courts should be governed, and the intention should be pursued, as far as the rules of law will permit.

To effect this object, the words of the will are in general to be attended to; but it is sometimes necessary, in order to fulfil the manifest general intention of the testator, to supply such words, as, from the general complexion of the will, compared with the situation of the testator, and of the legatees and objects of his bounty, are absolutely necessary to effectuate the purposes and dispositions intended by him.

*In doing this, too great latitude of construction on one hand, and too scrupulous a regard to the strict limits of legal rules on the other, are equally to be avoided, and a just medium observed.

In the present case, the testator, a century ago, being possessed of an estate both real and personal, and probably without relations, but having a wife supposed to be pregnant, made his will; and thereby, after reciting that he means to dispose of all his temporal estate, manifests an intention to make provision for his wife, during life in the first place; next to preserve his estate to the heirs of his own body; and, failing those, to give the whole to his wife; who, next to his own issue, was 'the favourite object of his bounty.

Let us consider the mode by which he intended to effect this :

First then, I am of opinion that the son, if one had been born, would have been entitled to a vested remainder in tail at his birth, to take effect, in possession, upon the death of his mother. But he would, in the mean time, on his coming to the age of twenty one, have had a right to the use of part of the lands, during the lifetime of his mother. Any other construction would have disinherited the issue of the son; which never could have been intended, by the testator.

In like manner I think the daughter, by the same rule of construction, likewise took a vested estate tail at her birth to take effect, in possession on the death of her mother. But, as she married and died without issue, a doubt arises as to the meaning of the testator by the words, if the child die &c., in the subsequent clause of the will.

The question is whether he meant a dj'ing generally? or before his age of twenty one, if a son, or marriage, if a daughter? or, as Mr. Call supposed, before the birth of the child? or lastly without heirs of the body?

*TIe could not have meant the first, because he knew death was certain: nor the second, because the sons issue would have been disinherited, as before observed, if he had died before twenty one; nor the third, because the general tenor of his will shews he contemplated tne childs being born alive: Therefore he must have meant the last.

According to which idea, the true construction is, that the testator by the latter words, if the child should die, referred to the preceding devise to the daughter in tail, and meant to add the words, without heirs of her body, but inadvertently omitted them. Therefore, in order to fulfill his intention, and carry the dispositions, he was making, into effect, it is necessary to supply those words: And then, upon the death of the daughter without issue, the remainder in fee took effect in possession in the wife.

Being of this opinion, it is unnecessary to trace the title of the plaintiff any further; or that of the defendant at all. For the defendant being in possession must remain so, until a better title is shewn. But I will add, that the defendant and his ancestors having been so long in possession, I should be extremely unwilling to disturb it, unless compelled thereto by positive law.

I am for affirming the judgment of the District Court.

LYONS, Judge, concurred that the Judgment should be affirmed.

PENDLETON, Presiden*.

We are all agreed, that death being certain and not contingent the testator must be supposed to have meant some other event added to-the death, which was really contingent, and which the Court in construction must supply ; but we differ about the extent of that supplement. I think he meant, the contingency of the sons dying under twenty one without leaving issue, or a daughters dying under that age, not having been married. My worthy brethren add a ^further contingency; namely that of a general failure of issue of the children, which does not appear to me to have been contemplated by him.

I would observe, that, in supplying words on such occasions, we are not at liberty to form guesses or conjectures of what we would have intended in such a case, but to supply the omitted words, as necessary from the complexion of the whole will, as is said by Ld. Mansfield in Watson v. Sheppard, Dougl. 28. On this view, I have formed my opinion.

As there was no son, but a daughter only, I disregard the clause for that event, as a supposed case which never happened; altho’ there is no material difference, except that the devise to the son is upon condition, that he attain the age of twenty-one, and that to the daughter, of her attaining that age, or being married.

The case of a son was mentioned, for the sake of observing, that if the limitation to the wife was upon the son’s attaining 21, and he had died under age leaving issue, they would be disinherited, contrary no doubt to his apparent intention. I answer, that if that case had happened, from the plain intention to provide for the issue, I would have interposed the words in the limitation to the wife, if my son die under 21 without leaving issue; confining it to the event at that period, and not extending it to a general failure of issue.

But however necessary this might be in the case of the son, it could not be so in the case of a daughter, who could not have issue before her marriage; which was a performance of the condition.

That the daughters attaining full age, or her marriage was a condition precedent to the vesting of any estate in her, appears to me evident; since although the cases shew, that the words when and as may be applied to the time of possession, and not to the vesting, I believe it never was, nor can be doubted, but that the word if must make such condition.

*Upon the will in the case before us, the condition applies to the whole; as well the remainder in tail after the death of the wife, as the moiety of the personal estate she was to have on marriage or coming of age, being coupled together by the word and. Thus making both to depend on the same condition, though to come into possession at different periods. So that the daughter on her coming of age, took a vested 'interest in half the personal estate in possession, and a vested remainder in tail in the real estate after the death of the wife. So far the reversion in fee is undisposed of; and, if the will had stopped there, would unquestionably have descended to the daughter. We come then to the enquiry whether that reversion is disposed of to the wife in the next clause. That a man may devise to A for life, remainder to B in tail, remainder to A in fee, is not questioned; but the true question is, whether this testator designed to make such a disposition?

That he intended his wife should have his whole estate, in case a child should be born, and die under age arid unmarried, is apparent; for this might be beneficial to her whom he preferred to any other, having no collateral relations of his own: But that he looked forward to the remote possibility of a failure of issue, at any time after, is what I cannot discover a hint of, in this will; and therefore, although he might have made such a limitation, and if he had done so, the court could not have controuled it, the case is quite altered, when we are to supply words, supposed, from apparent intention, to have been omitted.

I can easily conceive that although he meant to provide for the case of his children dying in their infancy, when they could not make any disposition of their estates, yet when they came of age and had families of their own, they should take the estate in tail with the remainder in fee, subject to all the legal consequences of such an interest; that is to say, they could not alien in ^prejudice of their issue, unless by a legal mode the estate tail was defeated, but might do so if their issue failed.

As death is naturally opposed to life, there was great force in Mr. Call’s observation, that the testator used the word die in opposition to living; that is, if 'the child die before the time I have required it should live to be entitled to my estate, then I give it to my wife.

My interpretation will make the two clauses consistent, but the other will produce inconsistency. For the half of the personal estate is given to the daughter absolutely, not to her and the heirs of her body; but the limitation over to the wife comprehends the whole personal estate with the lands, and if he meant the limitation to be on a general failure of issue, it would have contradicted the devise of the personal estate. If he had expressly so limited it, then it would have either been good as to the land, and void as to the personals, or good as to both by applying them to each in different meanings. But let it still be remembered, that we are supplying words for him, and should not make him contradict himself.

A question was asked, could the testator mean if his daughter died the day after marriage that his wife should not have the estate? I answer, he has fixed her marriage ' for vesting the estate in her, without hinting a difference in her interest, whether she lived a day or an hundred years. But I think I am warranted by the will, in saying, that if the testator had been asked, whether if his child had issue and that issue failed a thousand years after, the estate should go to the heirs of his wife, (the consequence of the limitation on a general failure of issue,) or to those claiming under his child or issue? He would have answered, that he cared nothing about it.

Upon the whole, the only supplement, which I think myself at liberty to make, will leave the *clause to read thus “Item, it is my further will and pleasure, that if the child, wherewith my wife now goes withal, die (if a male before he attains the age of twenty-one or have issue, or if a female before she shall attain that age or be married,) then I give and bequeath to my said dear and loving wife Mary Achilly and' her heirs, all my lands, houses, negroes, stocks, goods and chattels and debts due:” Making it an executory devise of the fee to the wife, upon the contingency of the sons dying without issue under age, or a daughter dying under age unmarried, which I conscientiously believe was his intention.

However as the other Judges are of a contrary opinion, the judgment must be affirmed.

Judgment affirmed.  