
    Mifflin against Neal administrator of Mifflin.
    Monday, April 16.
    , A,bequeatheri t° her two sons the rt. sidue of her personal estate, (t and in case either of them should die without will or lawful issue, then the property of such s<m desoendingfromt and gi\en in the life time by the testatrix, to descerní to the survivor, his heirs and assigns, for ever.” One of the legatees having died intestate, unmarried, and Sving^bc-6’ vvs ^ already mentííer'añd sister of the half blood, am! the issue of two sisters ofthe half blood, who died in it was mid, That the survivor was entith'd to the whole of the principal of the personal property bequeathed to his deceased brother, but tha> the accumulation or savings of the income were to be distributed equally between him and the brother and sisters of the half blood, and their representatives, according to the 7th section of e act of 4th April, i 7lJ7.
    
    THE parties entered an amicable action, and agreed to submit the following case to the Court, without argument: ° * °
    
      Samuel E. Mifflin, died intestate, unmarried, and without issue, leaving one brother of the whole blood, the plaintiff, a brother and sister of the half blood, and the issue of two sisters of the half blood, who died in his life time. The brother and sister of the half blood were the issue of the father of Samuel E. Mfflinhy a former marriage.
    
      Samuel E. Mfflin died possessed of personal property derived under the will of his mother, Ann Mfflin, and of the accumulation or savings of the income of the property so derived, the whole of which is in the hands of the defendant as administrator. ‘
    By the will of Ann Mfflin, she bequeathed to her two sons, ^ plaintiff, Lemuel Mfflin, and the intestate, Samuel E. Mifresidue of her personal estate, “ and in case either of them died without will or lawful issue, then the property of suc^ son descending from, and given in, the life time by the testatrix, was to descend to the survivor, his heirs and assigns, r 7 ° 7 for ever,”
    . The questions submitted to the Court were—.
    1st- Whether, under the circumstances above stated, and t|le will Qf Jlnn Mifflin, the plaintiff was entitled to the whole dJ > r of the principal of the personal property derived by Samuel E. Mfflin from his mother, or whether the same was to be distributed am<?ng the brothers and sisters of the whole and the half blood?
    tion or savings of the income, or only to a distributive share? 2d. Whether he is entitled to the whole of the accumula-
   The opinion of the Court was delivered by

Tilghman, C. J.

It appears by the will of Ann Mifflin, mother of the intestate Samuel E. Mifflin, and of the plaintiff, Lemuel Mifflin, that she bequeathed the residue of her personal estate to her said two sons, “ and in case either of them died -without will or lawful issue, then the property of such, descending from, and given in the life time by the testatrix, was to descend to the survivor, his heirs and assigns, for ever.” The dying without lawful issue, is to be understood, dying without lawful issue living at the time of such son’s decease, because the property of the son tso- dying was to go to his surviving brother; which.shews that the testatrix did not look forward to a failure of issue indefinitely. The property was to go to the surviving brother upon two contingencies, viz: that the deceased should have died without a will, and without lawful issue living at the time of his death. If he had made a will, or had left lawful issue, the property would not have gone over to the surviving brother. As these contingencies were of such a nature, that the time of their happening, if they should ever happen, must necessarily be at the death of the son who died first, and could not be protracted beyond that period, the executory devise to the surviving brother was good, being within the time allowed by law for such devises to take effect. But the next question is, what property passed to the-survivor; the .principal which had been given to the first taker, or the principal with the profits or interest which had accrued during the life of the first taker ? I think there can be no doubt that the principal only \vent over to the survivor—There is nothing in the will which • looks like an intent to deprive the first taker, in any event, of the profits during his lifetime ; and to strain the words of the will in order to come at a construction^ that kind would be unjust and unnatural. The expressions in the will, are : “ the property descending from, and given in life time, by me, shall descend to the survivor but the.profits of the personal property given by the testatrix, which accrued after her death, were not the property which descended from her, or were given by her in her life time, but a different property which did not exist till after her decease. Besides, these profits might have been necessary for the comfortable support of each of the sons, as long as they lived, and, therefore, should not be kept in suspense, and thus rendered in a great measure useless. I am clearly of opinion, therefore, that nothing more than the principal passed to the survivor by the execulory devise. This principal belongs to the plaintiff solely, because he takes it by his mother’s will. But the case is different as to the savings or accumulation arising from the profits of the principal. That is to be considered as the estate of Samuel E. Mifflin, and distributable according to our intestate laws, in the same manner as any other personal property acquired by him. In that distribution, the brother and sisters of the half blood, and their representatives, come in equally with the plaintiff. It is the exact case provided for by the act of 4th April, 1797, sect. 7. “Where the intestate dies possessed of personal estate, leaving neither widow nor lawful issue, father or mother, but brothers and sisters of the whole and half blood, or their representatives, it shall be distributed equally between the brothers and sisters, both of the whole and half blood, or their representatives.” Upon the whole, then, I am of opinion,

1st. That, under the circumstances stated in this case, and the will of Ann Mfflin, the plaintiff is entitled to the whole of the capital or principal of the personal property bequeathed to his deceased brother, Samuel E. Mfflin, by the will of the said Ann Mfflin.

2d. That the plaintiff is not entitled to the whole of the accumulation or savings of the income, but only to his distributive share.  