
    John D. Pritchett and others vs. William H. Cannon and others.
    
      Limitation of Estates — Wills and Testaments.
    
    Testator bequeathed as follows: “ I give and bequeath to my daughter, A. N., two negro girls, to wit: Hanna and Dina, which is intailed to her brothers, she leaving no lawful issue — Held, that the limitation to the brothers was valid, and that they took transmissible interests, which became absolute upon the death of A. N. without issue.
    BEFORE DUNICIN, CH., AT DARLINGTON,
    FEBRUARY, 1858.
    Dunkin, Ch. The principal question in this cause arises on the ninth clause of the Will of Zachariah Nettles, deceased, which clause is in the following words, to wit: — “ 9th. Also, I give and bequeath to my daughter, Anna Nettles, two Negro Girls, to wit: Hanna and Dina; also, I give her one Feather Bed and furniture, one stock Cattle, mark (thus) Poplar Leaf in the Right Ear, and Crop and Slit in the left Ear, and one gray Horse, which is intailed to her Brothers, she leaving no lawful issue.” The will bears date 16th November, 1803, and and was admitted to probate 30th December, of the same year. Anna Nettles received the property bequeathed to her, and intermarried, in the first instance, with Jordan Sanders, whom she survived, and subsequently with William H. Cannon? whom she also survived. She departed this life in May, 1854, never having had issue.
    At the time of the execution of the will, and of the testator’s death, he had four sons, to wit: Robert, James, Zachariah and John, brothers of the Legatee, Anna Nettles. These brothers all died, intestate, in the lifetime of their sister,, and letters of administration on their respective estates have been granted to the plaintiffs, in the manner set forth in the pleadings. The object of the bill is to recover from the defendants (who are volunteers under William H. Cannon or his widow) various slaves, descendants of Dina, bequeathed to Anna Nettles. The plaintiffs gave in evidence a copy of the will of Zachariah Nettles, under the Act of 1823, (6 Stat. 209.) In the progress of the cause the original will was also introduced, and the record of the proceedings in the Court of Ordinary when the same was admitted to probate. In the original will the words (in the ninth clause) “which is intailed to her brothers, she leaving no lawful issue,” were evidently interlined, and it is doubtful whether they were in the same hand-writing Avith the body of the instrument. But, at the close of the instrument and before the signature of the testator or the attesting clause, Avere the Avords, “interlined before signed.” There was no other interlineation, except this. . The will, as interlined, was admitted to probate, and so recorded, immediately after the testator’s death. In this proceeding I should regard the judgment of the Ordinary as conclusive. (Jarman on Wills, 23.) But if it were not conclusive, I should not be disposed, after the lapse of more than half a century, to disturb his conclusions if they seemed less well sustained than they are by the circumstances of the case. (See l Greenleaf Ev. § 564.) It appears from the will of the testator that he left a widow, four sons and four daughters, of whom Anna was the youngest and only unmarried daughter. The will, throughout, bears evident marks of care and deliberation.
    For his wife, an apparently proper provision is made during her life, and at her decease the whole of his property not disposed of by his Avill is directed to be distributed between his four sons and his daughter Anna. In the several clauses bequeathing property to the sons, the desire of the testator is clearly manifested, that in event of the death of either without leaving lawful issue, his share should pass to the surviving brothers. Whether his efforts to accomplish this purpose would have proved successful, it is not important to inquire-To his three married daughters, each, he bequeaths one negro ■without qualification or restriction, except that the slave bequeathed to Lucy Smith is to be held by her only, until her son, Samuel Smith, becomes twenty-one years of age, when the slave was given to him absolutely.
    In the tenth clause, three slaves, (by name,) are given to testator’s grand-daughter, Martha Nettles, “but if she should die and leave no lawful issue, then the three negroes to return to his surviving sons or their heirs.
    By the ninth clause, as it originally stood, the property bequeathed to his daughter, Anna Nettles, is described with great particularity. The gift was absolute and the clause complete. The tenth and concluding paragraphs followed, and the instrument was perfect, or ready for the formalities of execution. It appeared as if on re-perusal of the paper it had occurred'to the testator to make some such provision in regard to the bequest to his unmarried daughter, Anna, as he had made in relation to the bequests to her brothers and to his grand-daughter, Martha Nettles. But there was no room except by interlineation. To borrowv the language of the defendants’ counsel, “ these words were then crowded in.” As the Court has already remarked, it is not clear in whose hand-writing the interlineation was made. But it was manifestly the expression of an after-thought — was doné hastily, and in looseness and uncertainty — is in striking contrast, not only with the other part of the clause, but with all the other clauses of the will. It is necessary to analyze the language, and to give effect to the intention, if it may be fairly inferred, however inartificial or technically inaccurate may be the terms employed. The gift to the daughter is, in the first instance, absolute: no other words were requisite to define the amplitude of her estate. In order to qualify, restrict or defeat this absolute interest, the intention of the testator must be manifested by other and further provisions. The rule on this subject is very well established. In favor of vested interests a Court of Equity not only requires the events which were to divest them to happen with certainty, and in strictness, but must be satisfied as to the ulterior intention, and that such intention can be accomplished. “ When” (says Mr. Roper) “the event upon which a legacy is limited over, is not so clearly conceived and expressed by the testator as to satisfy a Court of Equity of his intention, or if understood, to enable it to carry that intention into execution, the bequest over will be defeated, and the primary legatee will take an indefeasible vested interest at the death of the testator.” (I Rop. Leg. 604.) So, Mr. Justice Wiiliams, “ an original vested gift shall not be qualified by a subsequent gift engrafted on it, which the law will not allow to take effect, as by a gift over, which is void by reason of being too remote, and the rule is general that an absolute interest is not to be taken away by a gift over, unless that gift over may itself take effect.” (2 Williams, Ex’ors 1087.) The authorities cited in the text show that, although the intention to make some restriction on the absolute interest was sufficiently manifest, yet if the purpose was not definitely expressed, or could not be carried into effect, the whole interest remained according to the original gift.
    The inquiry is not testacy or intestacy, but of cutting down or qualifying an absolute bequest, clehrly created, upon the happening of a particular event, and for a particular purpose. Let us apply these principles to the qualifying terms of the bequest to Anna Nettles. Assuming that the event described is sufficiently specific, and is not too remote, the inquiry is what meaning shall be attached to the terms “which is intailed to her brothers,” and that ascertained, secondly, can the purpose of the testator be accomplished. It is manifest that the testator did not intend an absolute gift to the brothers, in the event supposed, or he would have said so in plain terms. He meant what he said. If his daughter should have no issue, he meant to create an estate tail in her brothers. It is not that he has used language from which the Court would imply an estate tail. The testator has left nothing for implication. He has declared his purpose to create an estate tail in the personalty in the brothers of the legatee. It is scarcely necessary to cite the authority of Mr. Fearne to show that “chattels, whether real or personal, cannot be entailed.” (2 Fearne, Rem. 307.) Whether the testator would have given an absolute estate to his sons, if he had been advised, that he could not create an estate tail, is a speculation of very difficult solution, and upon which the Court has no authority to enter. The declared purpose of the testator, and for which alone he was willing to cut down the absolute estate of his daughter, cannot be accomplished, and her estate remains absolute. (See Winckworth vs. Winckworth, 8 Beav. 576.) In the events which happened no interest could have been vested in either of the sons, as they all predeceased the principal legatee, although in the view adopted by the plaintiffs, the interest might have been transmissible not to their issue, but to their personal representatives. Giving any significant interpretation to the language, used by the testator, this was clearly not the purpose which he sought to accomplish.
    But it maybe said that this provision should be construed in connection with the other clauses and provisions of this testament. Perhaps this is peculiarly proper, considering the character of this interlineation, and the circumstances under which it seems to have been made. The will was evidently prepared with care and attention. The interlineation subse-quentíy engrafted on it was hasty, incomplete, and aiming apparently at conforming this bequest to others of the same character. But if you are to look at the other clauses for the interpretation of any part of this interlineation, you must look to them for the construction of all the terms used. If the general scheme of the testator’s will is to guide the Court, the whole scheme should be regarded. By reference to all the principal disposing clauses of the will, it may be seen that while the testator makes elaborate provision for the issue of the first taker, he uniformly provides that, on failure of issue the property should return to “the surviving brothers,” or testator’s “ surviving sons.” Such are not only the provisions of the several devises and bequests to his four sons, Robert, James, Zachariah and John, but also to his granddaughter, Martha Nettles. After all this is done, and in sufficiently apt and proper phraseology, the testator qualifies the bequest to his daughter, Anna Nettles, by the terms “ which is entailed to her brothers, she leaving no lawful issue.” It was properly argued that these latter words meant: “ If she should die, and leave no lawful issue at the time of her death ” — such was the language used in all the preceding clauses.
    But who were the brothers for whom in that event provision was made? If his intention may be sought by collating this with the other clauses, if his general scheme is to prevail, he meant her survivirig brothers. Nor is the language inconsistent with this construction, assuming that the testator always looked at the same ulterior objects of his bounty. But, in that view, as is shown in Eaton vs. Barker, 2 Coll. 124, the gift over, in derogation of the absolute bequest, to testator’s daughter, having failed by the events which have hap-' pened, the bequest remained, and remains absolute.
    In the consideration of this cause, the Court has experienced the embarrassment arising from the attempt to ascertain the meaning of a testator, using technical lauguage, without fully understanding its import, and, very probably, without having any very definite idea of his own intentions. But his primary object is clear. The absolute bequest to his daughter is in simple and plain terms, and with a minuteness of description, which precludes misapprehension. All the doubt and difficulty arises on the parenthetical qualification afterwards introduced. The Court is of opinion that the principal absolute bequest should not be impaired by what, at most, Mr. Fearne terms, “ a presumptive construction of an undetermined or illiterate testator’s intention.”
    It is ordered and decreed that the bill be dismissed.
    The complainants appealed, and now move this Court to reverse the decree for error in this, to wit: That,by the terms of bequest, contained in the concluding part of the ninth clause of Zachariah Nettles’ will, the absolute interest in the property mentioned in the said clause including the negro Dina, which, in the direct bequest, is given to the testator’s daughter, Anna, is effectually cut down to a life estate, she leaving no lawful issue surviving at her death, and an absolute estate jn remainder expectant upon that contingency is well limited over to the brothers of the said Anna, living at the testator’s death; that this contingent interest, being certain as to the persons, and uncertain only as to the event, was transmissible, and upon the subsequent successive deaths of the said brothers, their several shares devolved upon their respective personal representatives, which representatives the complainants are; and, the contingency having happened, upon which the said remainder was to take effect in enjoyment, his Honor ought to have decreed for the complainants, and to have ordered the defendants severally to deliver up Dina and such of her issue as are in their possession respectively to the complainants, and also the other relief as prayed.
    
      Spain, for appellants.
    The words of the limitation should be construed to read thus: “Which I give to her brothers, she dying having no lawful issue alive at the time of her death.”
    The former words gave Anna Nettles an absolute interest or estate — these superadded words cut down that estate to a lifeestate, or defeated her absolute estate on her death having no issue alive.
    The interest of the brothers was contingent, and notwithstanding their death, in the life-time of Anna, was transmitted to their legal representatives at her death.
    
      Pinbnry vs. Elkin, 1 P. W. 563 : “ One possessed of a personal estate, devises, if his wife dies sans issue by,him, that then ¿ÉSO shall be paid to his brother, good; also good though the brother dies in the lifetime of the wife.”
    
      1 Wm. Ex’or. 638, referring to cases, says: “These cases establish the principle, that contingent and executory interests, though they do not vest in possession, may vest in right, so as to be transmissible to executors and administrators.”
    What construction shall prevail ?
    Jarman says, 1 vol. 315: “No degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author — the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together.”
    In such spirit search for the intention of Zachariah Nettles.
    1. He did not intend an absolute estate in Anna at all events, but on a contingency which happened not. This is certain.
    2. He did intend in the contingency to raise an estate for her brothers. This is also certain.
    But intention must yield, rather than violate a rule of law.
    It is conceded in the decree that the vice of remoteness does not attach to the words used in creating the limitation, for declaring the contingency on which the interest is to go over.
    If the words had been “ if she die leaving,” &c., the case would have been precisely parallel with Forth vs. Chapman, 1 P. W. 663.
    But the necessary words will be supplied — (l Jar. 427 and notes) in order to effectuate the intention.
    The word “ leaving ” as placed, may be unintelligible, being referable to no antecedent to give it effect. But it is apparent from the context that testator had in contemplation the death of his daughter, and that he meant to make “ after that time” provision for his sons. Leach vs. Micklem, 6 East., 486.
    The words “ leaving no lawful issue ” of themselves import “without leaving issue living at the death of the party,” to the failure of whose issue the words relate. Mldnson vs. Hutchinson, 3 P. W. 258, and notes; Crooke vs. DeVaudes, 9 Yes. 204; 2 Jar. 418-19. Under a bequest to A or to A and his heirs, and if he shall die and leave no issue, or without leaving issue, A would take not the absolute interest, but the entire interest of the testator, defeasible on his (A’s) leaving no issue at his death.
    If correct in the view that apt words are used denoting • intention that the bequest shall go over on a contingency not too remote, then the question arises who is to take, the contingency having occurred on which the estate was to go over ?
    The brothers — the words “which is entailed to her brothers” being construed thus,- “ which is given to,” &c.
    It is contended contra, that those words are to be construed thus: “Which I give to her brothers and the heirs of their bodies.”
    This construction makes the word “ Entailed ” a word of art, and clothes it with a technical meaning.
    2 Black. 114-115 says: “As the word heir's is necessary to create a fee, so, &c., the word body, or some other words of procreation, are necessary to make it a feetail, and to ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate tail.” Examples — A grant to A and the issue of his body, or to his seed, or to his children ; these are grants only of life estates, the technical word “ heirs” being omitted.
    “ These are the correct and technical terms-for limiting an estate tail.”
    2 Jar. 232: None others are technical, though “such an estate may be created in a will by less formal language.”
    
    The question here is not what informal words will create the estate, but whether the word here used is “technical.’’
    
    It clearly is no't. Then to carry out intention, if it has a popular meaning that should be given to it. “ To argue that the intention shall be frustrated by a rule of construction of certain words, is to say that the intention shall be defeated by the use of the very words which the testator has adopted as the best to communicate his intention, and of which the sense is intelligible to all mankind.” Note 22 to 2 Black. 381. (Christian.)
    “Entailed” not being a word of grant, or creation, it is merely one of description. It merely describes the kind of estate given to the daughter, and points out the persons to take in a given contingency. This is its popular acceptation. Courts may alter the language of a testator, and this most frequently occurs in regard to expressions, which, in common parlance, are often used inaccurately. 1 Jar. 442.
    The author gives many instances.
    But if testator is presumed to have known what a fee tail was, he must also bepresumed to have known of what property it could be predicated. He knew he could not entail personalty.
    Suppose testator meant a gift to the brother surviving the daughter — then what ?
    “Whenever the grant, in the first instance, is perfect, it is only to be diminished upon the happening of the contingency which is to defeat it.” Per Johnston, C., W. D. Kersh, Admr. vs. Younge, 7 Rich. Eq. 100.
    In this case M. conveyed to trustee property, real and personal, to apply profits to support of H. for life, and after her death to convey, &c., unto the four present children of H., or the survivor or survivors of them, &c., and to their heirs forever, the absolute title. The four children died in the life time of life tenant. “ Held that each of the four children took a vested transmissible interest, liable to be divested in the event that he or she died in the life time of H., and that one or more of the others survived H.; and as they all died in the life time of H., the contingency had not happened on which their rights were defeated. Sturgess vs. Pearson, 4 Madd. 441.
    When the contingency upon which the interest depends is the endurance of the life of the party entitled to it till a particular period, the interest itself will be extinguished by the death of the party before the period arrives. 1 Williams on Exors., 578.
    A gift to A and his heirs, of personalty, carries the whole interest; so a gift to A simply; so a gift to A and the heirs of his body.
    If the limitation over is good, and an interest vested in the brothers at testator’s death (Kersh vs. Yongue, and cases cited therein) they take though the limitation over again to the heirs of their bodies may be too remote. What rule of law does such a construction violate ?
    
      Harllee, contra,
    cited 2 Jarm. 659; Perry vs. Logan, 5 Rich. Eq. 219; Hay vs. Hay, 4 Rich. Eq. 378.
    Entailed is a technical word. — Jacob’s Law Die. Title Entail; Bouv. Law Die. Entail; 1 Rich. Eq. 396.
    If the Court can’t carry out intention of testator in full, it will not in part. — Cox vs. Buck, 5 Rich. 604; Henry vs. Felder, 2 McC. Ch. 309.
    
      Largan, same side.
    
      Inglis, in reply.
   The opinion of the Court was delivered by

Johnston, Ch.

The Chancellor, remarking upon the words, “ which is entailed to her brothers, she leaving no lawful issue,” says, “ It w&s properly argued that these latter words meant, if she should die and leave no lawful issue at the time of her death.”

In this observation we concur. A person is commonly said to leave or not. leave issue at that juncture of time when he departs this life; by which event he becomes separated from his earthly connexions, and leaves them behind him. The addition of “die,” “depart this life,” or the like, could not intensify the meaning of the word “leave,” which is as significant without as with them. And to this effect is the case of Mansell vs. Grove, 21 Eng. Ch. Rep. 484; S. C. 2 Young and Collyer. The bequest, in that case, so far as it is necessary to notice it, was of a remainder of residuary personal estate “to Edward Moreton Pleydell, for his life, and his heirs male after him ; if he should not leave any son, then to go to Wm. Moreton Pleydell and his heirs male.” The Vice Chancellor said : “ The question is whether the word leaving’ and the word‘leave’ are tobe construed strictly according to the ordinary signification, as importing the not leaving issue at the death of the former taker. The ordinary, if not the universal rule of the Court, in cases of this description, affecting mere personal estate, is that such words import, not an indefinite failure of issue, but a failure of issue at the death of the preceding taker.”

The event, in the present case, upon which the property was to go over, or in other words, upon which the prior interest was to be divested, being not too remote; the only question that remains is, are the persons to whom it is limited over so described, and their interests so described, that effect can be given to that part of the will.

The limitation is to the brothers of Anna Nettles. One of these died in the life time of the testator, perhaps before the will was executed, and so he either never had any expectation of interest, or his interest lapsed, and merged in that of the other brothers who were alive when the will came into operation. As to these, the interests whatever they are that were conferred upon them, were not given to them upon condition that they should survive Anna, the first taker. They took at the death of the testator, personal interests so vested as to be transmissible, being contingent only upon the event upon which the prior interest of Anna should terminate.

What is the nature of their interests ? The testator gives the property to Anna, and if she dies without leaving issue, entails it to them. What was his precise idea of entailing to them what he had given to her, it would be difficult to conjecture, nor is it necessary to ascertain. He was inops concilia, and ignorant of the law, of which the whole will bears evidence. He probably conceived, as the popular belief is, that giving over the property from one member of his family and limiting it to other members, was entailing it. But this is of no sort of consequence whatever. Suppose upon the death of Anna he had limited over the property to the brothers and the heirs of their bodies, by words which applied to real estate would have created an estate tail in England; it is well settled that such words would have given them an absolute interest in personalty — and this is enough for this case.

These observations dispose of the decree.

Respecting one of the negro girls given by the will, and her issue, the bill admits the ignoiance of the plaintiffs as to what has become of them. No remedy is sought as to this family of slaves. The other Dinah, and her increase, are the real subjects of the suit. It is clear that the life estate of Anna, in these negroes vested in Cannon, her second husband; whether he obtained them on his marriage with her, or acquired them afterwards is immaterial. By acquisition of this property he as life tenant, per auter vie, became trustee for the remainder-men ; and his executors by a wrong distribution of the property under his will, subjected themselves and those to whom they delivered it, to the suit of the remaindermen or their personal representatives,

But we have not enough before us to^ make the decree— reference being had to the evidence, and to the situation of all parties — proper to be made in the case.

It is, therefore, ordered that the decree appealed from be reversed and set aside; and that the cause be remanded to the Circuit Court, in order that a decree be there made conformable to this opinion : and that the evidence now taken and such as the parties may offer before the Commissioner be received, in order to make up such decree: and that the Commissioner, on such evidence, report the situation of those slaves, in whose hands they now áre, and from whom they received them directly and indirectly, with their value, and all other matters necessary to ground a decree upon: with leave to report special matter.

Wardlaw, Ch. concurred.

Decree reversed.  