
    John H. Wilson and Wife vs. Maria Freer, and others.
    Heard before Chancellor Desaussuke, Charleston, January Term, 1837.
    William Stanyarne, the testator, died on the 5th May, 1783, 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 1783, or 1784. The sots Charles, also died soon after, under age and without issue ; then the daughter Frances died unmarried. Elizabeth, mairied 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 3811, 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, un= married. 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 forever. 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 plant, ation 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 forever.
    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 the testator or otherwise.
    It is certainly an obscure will, and • it is not easy to form an opi? mion 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.
    Then it is a case of intestacy ; and as such, is descendible to those who were the heirs at law, or is distributable under the statute of 1791. On the death of Charles Stanyarne, the first devisee, un. married and without issue, the devise to him failing, the fee descended to his heirs at law, to await the contingencies provided for by the will. These not having occurred, the question recurs, who are those heirs 1 Charles, the first devisee, died after his mother and sister Frances, and before the enactment of the statute of February, 1791, 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.
    HENRY W. DESAUSSURE.
    
      Ground of Appeal.
    
    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,
    DUNKIN', Solicitor.
    
   Chancellor D. 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 the John’s Island plantation, — 1st, To his son Charles in fee, but if he should die under 21, and without issue, then, 2dly, To be kept for the use, profit, and maintenance of the testatator’s wife, and unmarried children, until the day of their marriage, and then, 3d]y, To be sold, and the proceeds divided equally between his wife and his surviving daughters.

Charles died under 21, 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 descrip, tion at the death of Charles, or the death of Anna, are entitled to take.

Dunkin, for motion.

Fetightj, contra.

Filed 21st March, 1837.

The devise to Charles, is in terms a fee simple, defeasible in the event of his dying under twenty-one, and without issue, and on his death under 21 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 1 think is very clear. In Monkhouse vs. Holme, 1 Bro. C. C. 298, Lord Ellen-borough says, that when the time is not annexed to the form, hut 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 (hey 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. Consequently, none can take, but those who an. swered 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, aiterwards, her interest vested of course, in her surviving sisters. The children of Elizabeth Wilson, their heirs, or devisees, are, therfore, entitled to one third of the estate; the children 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 ap. peal is, therefore, dismissed,

DAVID JOHNSON,

We concur,

WILLIAM HARPER,

L JOHNSTON.  