
    John Ballard and Wife, and others, vs. Thomas H. Connors, and others.
    
      Limitation of Estates — Wills and Testaments.
    
    The testator, as to certain lands, declared that, should they not bé sold by himself, “ then I wish my executors to dispose of them to the best advantage, and when in funds for the same, I wish for them to divide the money among the whole of my surviving children, share and share like, to them and their lawful heirs forever — Held, that the testator, by the term “ surviving,” meant the children who survived him, and not those who were living when the funds arising from the sales were in the hands of the executors.
    BEFORE DUNKIN, CH., AT SUMTER,
    JUNE, 1858.
    This bill was for settlement of the estate of Charles Connors, who died on the 5th March, 1843, leaving a last will and testament. The plaintiff, Unity Ballard, was the administra-trix of Jared B. Conners, one of the children of testator, who died in April, 1848. So much of the Circuit decree of his Honor Chancellor Dunkin, as relates to the only question made in the Court of Appeals, is as follows:
    Dunkin, Ch. In the last disposing clause of the testator’s will, it is provided as follows: “ It is my will and desire that, should any of my children die under age., or without leaving lawful heirs, such property as they received by my will to be taken and divided equally among my surviving children,” &c. None of the children died under age before they received their property, and it was assumed,(as the Court thinks justly,) that the contingency did not occur upoq which the property which they had received should be taken and divided among the survivors. The clause proceeds: “ Should my Mill Plantation and that tract of Land on Black River, bought of William Lloyd, be not sold by myself, then I wish my executors to dispose of them to the best advantage, and when in funds for the same, I wish for them to divide the money among the whole of my surviving children, share and share alike, to them and their lawful heirs, forever.” The Lloyd tract of land was sold in 1848, and the intestate, Charles P. Connors, received his full share of the proceeds, as appears from his receipts to the executor, of June 3, 1848, and 23d January, 1850. As to the mill tract, Charles P. Connors, on 28th December, 1844, by his conveyance under hand and seal, and duly attested, for valuable consideration, transferred to the defendants, Tho. H.-Connors and Matthew H. Connors, all his right, title and interest in the plantation known as Charles Connor’s Mill Land, on Taw-Caw, &c. The plaintiff, Unity, then the wife of the said Charles P. Connors, duly relinquished all claim of dower in the premises, before the proper officer. Part of the mill tract was sold by the executors in 1853, and the remainder on January 1, 1857. No part of the purchase money was paid until 1856, and for the greater part the term of credit has not yet expired Any one claiming under Charles P. Connors is estopped by the deed of 28th December, 1844. But in another point of view, it may be important to determine among whom the sales of the Lloyd land and mill plantation were divisible. At the time of the execution of the testator’s will, and also at his decease, all his children were alive. The lands are directed to be sold by his executors, “ to the best advantage,” and “ when in funds for the same, he desires them to divide the money among the whole of my surviving children.” The testator left children by two marriages, and in his will he had, in another clause, used the same expression “ whole,” so as to include both sets of children. But the term “surviving” must refer to the children alive at the sale, or at the receipt of the purchase money. The Court adopts the construction, that the children of the testator alive at the receipt of the sales money of the tracts respectively, were alone entitled to participate' in the proceeds. See Hoghton vs. Whitgreave, 1 Jac. and Walk. 146; Brograve vs. Winder, 2 Ves. Jr., 634. The effect of the Stat. 25 Geo. 2, is only to enlarge the shares of the class. 2 Wm’s Ex’ors, 1258. Several issues are presented by the pleadings, and the facts and dates are numerous and complicated. Not without some effort to be accurate, the Court may not have entirely succeeded in stating all the important facts, or discussing the several points submitted by counsel. With the exception of the testimony of the Rev’d. Mr. Ma-honey and of Mr. Rhame, taken at the hearing, all the evidence is in paper, and any omissions on the part of the Court may be easily supplied, and any inaccuracies corrected. After a review of the whole subject matter, the Court is of opinion that the bill of the plaintiffs should be dismissed, and it is so accordingly ordered and decreed.
    The plaintiffs appealed from so much of the decree as relates to the distribution of the proceeds of the sale of the Lloyd plantation and mill tract, on the grounds:
    1. That, at the hearing on circuit, when the point was made as to said tract of land, and the position assumed by plaintiffs’ counsel that said proceeds were distributable among all the children who survived the testator, the defendants’ counsel conceded the point, and so admitted.
    2. That, by a proper construction of the will, the Court should have held the proceeds of .said lands liable to distribution among all the children who survived the testator.
    
      Moses, for appellant.
    
      Blanding, contra.
   The opinion of the Court was delivered by

Ward law, Ch.

The single question on this appeal relates to the time to which words of survivorship should be referred. The testator says: “ Should my mill plantation and that tract of land on Black River, bought of William Lloyd, be not sold by myself, then I wisli my executors to dispose of them to the best advantage, and when in funds for the same, I wish for them to divide the money among the whole of my surviving children, share and share alike, to them and their lawful heirs forever.” Some of the children of testator who survived him, died before the executors sold the lands and collected the proceeds, (the latter particular is not yet completed,) and the controversy is whether their representatives be entitled to take shares of the proceeds of sale.

The first ground of appeal asserts that at the hearing the counsel of the other party yielded the point. This is not admitted before us, and no agreement in writing is produced. If it were, surely a Chancellor is not bound to misdecide a question of law, such as the construction of a will, on any consent of counsel.

The second ground of appeal, however, squarely presents the point of construction. It is probably superfluous in respect to any difficulty in the question — it is certainly impracticable in the demands on my time, to discuss this matter elaborately. Some plain propositions seem sufficient for the judgment.

In general, words of survivorship are significant of the death of testator, but when a future period of distribution is fixed by a will, such as the termination of a life estate, or when a legatee shall attain twenty-one years, then for Ihe benefit of the legatees and in increase of the objects of bounty, the terms are referred to the period of distribution. When the enjoyment of the estate by those ultimately entitled, is absolutely postponed to a future day by a supervening estate, it is natural and just to make the chances pf survivorship applicable to such future day.'' But in this case no estate whatever is given to the executors, and a mere power or trust is conferred on them to sell, in the event the testator did not sell, as expressly he contemplated. On the death of testator, the land descended to his heirs or devisees, and it would really enable the executors to make his will by their caprice as to the time of sale, to hold that all 'his childz’en, living at his death, were not entitled to shares of the proceeds of sale.

It is ordered and decreed that the second ground of appeal be sustained and that the Circuit decree be modified accordingly.

Johnston and Wakdlaw, C. C. concurred.

Decree modified.  