
    RICHARD CULBERTSON, EX'R, against SAMUEL FROST AND OTHERS.
    A bequest to J., “to go to her after her husbands’s death, and if she dies before him, I allow her part to go to her sons (naming them) when they come to the age of twenty-one ” passes a present light to be enjoyed at the death of the husband with a limitation, over to the sons in the event of her dying before her husband.
    Cause removed from the Spring Term 1854, of the Court of Equity of Rowan.
    The hill was filed by the executor of Henry Robertson to obtain a construction of the testator’s will, and for instructions as to the disposition and management of the fund arising from the sale of the estate. Samuel Frost the husband of the legatee Jane, and the children of the said Jane, as well as the -other legatees in the will, are made parties defendant.
    The .clause in the will upon which the advice of the court is ashed, is sufficiently set forth in the opinion of the court.
    
      Osborne for plaintiff.
    
      Orange for defendants.
   Peakson J.

The testator-left him. surviving,his brother John, the children of a deceased brother', George, and his sister Jane, the wife of Samuel Frost. He directs that all his estate should be converted into money, and after payment of debts and funeral expenses, the fund is divided into three equal parts. He gives to his brother John one part; to the children of his brother George one part, and in regard to the other part, he expresses his intention in these words : “I give and bequeath to my sister Jane, one third of my estate, to go to Tier after her husband’s (Samuel Frost’s) death, and if she dies before him, I allow her part to go to her sons, Franklin R. Frost, James D. Frost, Ebenezer C. Frost, when they come to the age of twenty one years.”

The paramount intention tvas to give to his sister Jane one third of the fund. But he had a secondary intention, e. i. to exclude her husband from any benefit or control over her part. To effect this double purpose, he gives to his sister a present right to the fund, but poslpones the time of enjoyment until the death of her husband, and makes a limitation over in the event of her dying before her husband. Ilis right to make this restriction as to the time of enjoyment, and the validity of the limitation over, are fully settled by the authorities.

It must be declared to be the opinion of the court, that the executor is to retain the fund (upon investments so as to make interest.) to he paid over to the wife if she survives her husband : or to the children named (if she dies first) upon their arrival at the age of twenty one.

Per Curiam. Decree accordingly.  