
    DEN on the demise of ARRINGTON and others, against ALSTON.
    testatorby^ one clause of sed knd'toVl* his three dsu^btcrSj 8c provides that tberh^should die before thauhiTiand devised to such one should go to Mancase⅜ they should marriage, that the lands go devised •should go to ⅜ &’ G c - & by a subsequent clause of the will he bequeaths to the same daughters a number of slaves and other personal estate, and then adds a general clause of all the rest and residue of his estate both personal, real and mixed, to be equally divided amongst them, when the two eldest arrive at the age of 18 or marry ; but adds that if either of them should die before their arrival at 18 or marriage, then the share of the one so dying should goto the survivors; but in case they should all die before they arrive at 18 or marry and have issue, then he directs the said personal estate, and all other property which they are entitled to by his will shall go to B B, G B, T & M P, E J!, MB&RR&MA ;—it was held that upon ope of the daughter’s arriving at 18 and marrying and dying without issue, the part of the land devisedto her vested in her, and upon her death descended to her heirs at law j that the latter clause of the will does not affect the devise of the lands ; and even if it flid, it must be ,construed copulati vely, so that a remainder to the surviving sistgta not take place, but upon a dying unmarried, under 18, and -without issue.
    
    
      Micajah Thomas, having three illegitimate children by Ann Jackson, viz. Mourning, Margaret and Temperance, made his Will in 1788, and died without altering or re-yoking it. By it he devises as follows. “ I give unto my daughter, Mourning Thomas Jackson, all that part of my manor» plantation, &c. containing about two thousand five hundred acres; also, another tract of land lying on the North side of 1 ar-river, containing 420 acres, known by the name of the Kerseu, &c. t,o her and her heirs for ever.!* # J Then he devises other lands to Margaret⅝ and in fee sim-P^e ’ anc^ a third estate to Temperance, jn fee simple, and then comes the following clause. “■ Item, my will and desire is, that if either of my three children, Mourning ’j'fl0mas Margaret Thomas, and Temperance Thomas ’«s ’» i ** Jackson, daughters of Ann Jackson, should die before they marry, the lands of the deceased shall go to and be equally divided between the surviving two and their heirs for “ ever, and in case two of the said children should die before they marry, then the whole of their lands shall go to the surviving one and her heirs for ever; and in case that all three of my children, Mourning Thomas, Margaret., and Temperance Thomas Jackson, daughters of Ann Jackson, shall die before they marry, then and in that case, it is my wish and desire that all the lands willed to them, should goto and be equally divided between Bennet Bod-die, George Baddie, John Crudup and George Crudup, to them and their heirs for ever.” Then follow several legacies and devises to other persons, after which comes the following clause. “ Item, I give and bequeath unto my three daughters, Mourning Thomas, Margaret Thomas and Temperance Thomas Jackson, daughters of Ann Jackson, the following negroes with their increase (here follow the names of 64 slaves) together with all my cash in hand, certificates, stock in trade, debts due by bond or otherwise, all and every thing else of my estate, real, personal, or mixed, that is not heretofore by this, my last will bequeathed, to be equally divided between them, when they, the said Mourning Thomas, Margaret Thomas and Temperance Thomas Jackson, daughters of Ann Jackson, arrive at the age of eighteen years, or marry, to them and the heirs of their body for ever: but if either of the said children should die, before they arrive at the age of eighteen years or marry, then and in that case, my will and desire is, that the estate of the one deceased, should be equally divided between the surviving two, to them and the heirs of their bodies, for ever, and if two of the said children should die before they arrive at the age of eighteen or marry, then that the parts of the two deceased, shall descend to the surviving one, and the heirs of hey body for ever : But if all my daughters should die%efore they arrive at the age of eighteen years or marry, and has issue thereby, then the said negroes with their increase, *aoney, certificates, stock in trade, and all other property which they are entitled to by this will, shall go to and be equally divided between Bennet Boddie George Boddie, Temperance and Mary Perry, daughters of Nathan Bod-die, Elizabeth Boddie, Mourning Boddie and my two nieces, Rkoda Ricks and Mourning Arrington, to them and their heirs for ever.
    
      Mourning Thomas Jackson, arrived at the age of eighteen, married and died without issue, in 1805.
    
      Ann Jackson, had four children, named Munroe, who were born out of wedlock, and survived Mourning; she had also a daughter named A ary, wife of Joseph Arring-ton, one of the lessors of the Plaintiffs, born out of wedlock ; and John Arrington, Martha, wife of Lawrence Battle, and William Arrington, all lessors of the Plaintiffs, born in wedlock, who survived Mourning; Margaret Thomas Jackson married John Alston; Temperance Thomas Jackson married Janies Alston: the former is in possession of the premises in question, claiming them adversely to, and denying the title of the lessors of the Plaintiffs.
    It is submitted to the Supreme Court, to say who are entitled to the real estate acquired by Mourning Thomas Jackson, under the will of Micajah Thomas ? If Margaret and Temperance Alston, then judgment to be entered fot the Defendants. If all the brothers and sisters of Mourning, legitimate and illegitimate, then judgment for the Plaintiffs, on the demises of each of his lessors : if only the illegitimate, then judgment for the Plaintiffs on the demise of Joseph Arrington and wife : if only the legitimate, thett judgment for the Plaintiffs on the demises of John Arrington, William Arrington, and Lawrence Battle and wife.
    The case was elaborately argued at January Term 1817, by Mordecái, for the Plaintiffs, and Browne for the Defendant, bút as the leading ca$es cited on either side, áre noticed in the opinion of the Court, the arguments of the counsel are omitted.
   Seawell, J.

By the first clause of this will, the testator devises to his daughters several tracts of land, and provides in the same clause, that if either of them should die before marriage, that the lauds devised to such one, so dying, should go to the survivors ; and in case they should all die before marriage that the lands so devised should go to the Boddies and Crudups.—By the latter clause the testator devises to his same daughters, a number of slaves, together with other specified personal estate, and then adds a general sweeping clause of all the rest and residue of his estate, both personal, real and mixed, to be equally divided amongst them when the two eldest arrive at the age of 18 or marry ; but adds, that if either of them should die before their arrival at 18 or marriage, then the share of the one so dying should go the survivors, but in case they should all die before they arrive at 18 or marry and have issue, then he directs the said personal estate, particularly specifying it, and all other property which they are entitled to by his will, should go to the Boddies, the Perrys, the liixesy and the Arringtons.

Mourning, one of the daughters arrived at 18 and married, but died without issue; and the question is, do the lands devised to her, pass to the surviving sisters, or do they descend to the heirs at law ? If the lands are not affected by the latter clause, it is clear they became vested ; and I confess that upon looking into both clauses, it appears to me plain that it was not intended by the testator they should be subject to it in any manner. The first is a plain limitation to the Boddies and Crudups upon a default of the daughter’s arriving at 18 or marriage—The other clause respecting the personal estate is limited to a different set of persons, and not upon the same contingency as respected the lands, but upon a default of their dying unmarried, under 18 and without issue ; ¿o that it se ns impossible to suppose he could have intended, consistently, with all he had declared, to have made the lands subject to that clause : nor can we be brought to under-stantl him so, by any thing short of downright and posi-* tive declarations ; these he has not made, but it is certain that he has used terms which comprehended them within their scope—he has said all the other property; but as they do not otherwise than by construction embrace the lands, such construction must stand controlled by the other clause, whose peculiar office it was to dispose of them. The case therefore is not like those of the same identical thing being devised to two different persons, by different clauses ; there, it was impossible to understand the testator otherwise, on account of the same thing being both times devised—here there is a general term used. But even if it should be proper to consider the lands as subject to the latter clause, yet I think that according to a just and proper construction of tlmt clause, a remainder to the surviving sisters was not to take place, but upon a dying unmarried, Under 18 and without issue ; for though the words of the will are “ if she shall die under 18 or un» married and without issue,” yet the u or” must be understood “ and,” otherwise a dying with issue under 18 would not prevent the estate from passing to the survivors : And surely it Was the intention of the testator to provide for the issue, if we respect his declarations.

But it has already been decided in this Court upon this Will, and this very clause* that such construction should be put upon the words. And 1 Wils, 140. 3 Term Rep* 47. -4 Term Rep>, 441¿ cited by the Plaintiff’s counsel in this case, are direct authorities in support of such construction. But it has been insisted, that though this should be the proper construction in relation to the personal esp fate* yet in respect to the real, the same words may be tonstrued differently ; and Forth and Chapman in P. Wil-Hams is cited as an authority ; but this case has been ful-answered on the other side by the case from Vernon, which determines that wherever the real and personal are fo go oyer together, that the same construction shall bs applied to the words in relation to each. And this case is noticed in 2 Fearne page 195, by way of note to Forth and Chapman. I think therefore, whichever way this case is considered there must be judgment for the heirs at law. And the act of Assembly 1799 having made bastard brothers and sisters capable of inheriting to each other in like manner as if they were legitimate, there must be judgment for their lessees also.

Hall, Daniel & Ruítfin, j. concurred. 
      
      
         Richards v. Burgaveny.
      
     