
    Susannah Tisdale vs. Benjamin Mitchell and others.
    
      Will — 1‘ Children.”
    Testator, by one clause of Ms will, gave Ms plantation and some personalty to Ms wife during life or widowhood. He next declared that certain property which he had given by deed to Ms daughter S. and her cMldren she should have “in lieu of any further share or part of his estate.” Tó his six other cMldren, byname, he then gave parts of his estate; and, finally, he directed, that if any of Ms children should die before arriving at twenty-one years of age and without issue, that his part or share revert back to Ms estate, and be equally divided among his “surviving children,” and that the remainder or residue of his estate, when Ms youngest child should arrive at age, or at the death of Ms wife, be equally divided among “his cMldren: — Held, that 8. was not included in the terms “ survivmg cMldren” and “ children,” as used by the testator, and consequently that she was entitled- to no part of the estate.
    BEFORE CARROLL, OH., AT SUMTER, JUNE, 1863.
    Tbe testator, Stephen Mitchell, died in August, 1820, leaving his wife and children named in his will surviving him. Daniel Clark Mitchell died shortly after the testator, intestate, a minor, unmarried, and without issue. Winney married William McCoy, and she is dead, leaving issue. Stephen A. Mitchell, son of testator, is also dead, leaving issue. Abigail married Minor McCoy, and is now a widow. Abigail Mitchell, widow of testator, died in 1860. Of the negroes bequeathed by the testator to his widow for life, Luna and fifteen of her descendants survived her, and the bill was filed against Benjamin Mitchell, James Mitchell, Samuel Clark Mitchell, Abigail McOoy, Chapman L. McCoy, administrator of Winney McCoy, and James C.’ Hicks, administrator of Stephen A. Mitchell, for partition of Luna and her issue, and also for an account of Samuel C. Mitchell of their hire, he having taken possession of them at the death of Abigail Mitchell.
    The Circuit decree is as follows :
    Carroll, Ch. The questions presented by the pleadings depend upon the construction of the eleventh and twelfth clauses of the will of Stephen Mitchell, deceased, which bears date August 24:th, 1820. After providing for payment of his debts, by means of his crop then growing, and so much of his stock as might be necessary in addition, the testator, in the second clause of his will, gives to his wife for life or widowhood the use of his farm, plantation tools, household and kitchen furniture, all his stock of horses, cattle, and hogs, not otherwise disposed of, “ and three female slaves.” In the third clause, the testator refers to a deed whereby he had given to his daughter, the plaintiff, and her children, ua tract of land, a negro girl, and a stock of cattle,” and declares it to be his “ will and desire that she shall have the said property in lieu of any further share or part of his estate.” The testator then directs that his sons as they marry, or arrive at the age of twenty-one years, shall “ have an equal dividend of his plantation, except that part whereon his dwelling-house is situate, which he wills to his youngest son, Samuel, as his part of said land, subject, however, to the use or support of his mother, during lifetime or widowhood.” The six succeeding clauses contain specific bequests of negro slaves to his children, exclusive of the plaintiff, to be deliverecl to them as they respectively may marry or attain to the age o'f twenty-one years. Then appear the clauses of the will out of which the controversy arises, and they are expressed in the following terms:
    “11. Also, it is my will, should any of my children die before they arrive to age of twenty-one years, or without leaving issue, then in that case that their share or part revert back to my estate, and be equally divided among my surviving children.
    “ 12. Also, should any of the negroes die which are named as legacies before the child to which it is named arrived at the age of twenty-one years,-then the loss to the chip so losing its legacy shall be made good out of my estate; the remainder or residue, when my youngest child arrives at the age of twenty-one years, or at the death of my beloved wife, to be equally divided among my children.”
    The' will was admitted to probate September 15th, 1820. One of the testator’s sons, Daniel 0. Mitchell, died soon after his father, an infant, unmarried, and without issue. The widow, Mrs. Mitchell, died in March, 1860. Of the negroes bequeathed to her for life, all have died, except the slave Luna, whose descendants, born since the testator’s death, are now fifteen in number. Upon the death of the life-tenant, Mrs. Mitchell, her son, Samuel 0. Mitchell, took possession of those negroes. The bill seeks a partition of them, and also an account of their hire since her death.
    The questions to be considered are, whether the plaintiff is embraced within the description, “my children,” in the twelfth clause, and “my surviving children,” in the eleventh clause of the will. If included within the former, she takes one of the original shares in remainder, after the death of her mother, in the slaves and their descendants that had been bequeathed to her for life. If included in the latter description, then she in addition takes of her brother Daniel’s share in remainder of those slaves an equal portion with his other sisters and his brothers who survived him.
    In support of the plaintiff’s claims, it is urged that she is as clearly embraced within the terms of description referred to as any one of the testator’s other children; that the words in question are not words of art, or of dubious import, but are plain and unambiguous in their sense; that they comprehend her too clearly and palpably to admit of the supposition that her inclusion was the result of inadvertence or misconception of the meaning1 of the words employed; and that the supposed inconsistency between the clauses in question thus construed and the testator’s prior declaration that the plaintiff should hold the property given her by deed, “ in lieu of any further share or part of his estate,” may be entirely reconciled by understanding that declaration to refer, not to any interest in his estate expectant merely or postponed in possession, but to any interest in the same coupled with the right of immediate enjoyment. The testator has certainly employed wide and sweeping terms of exclusion in regard to his daughter, the plaintiff. The clause of his will referring to her declares, that what he has already given her by deed she should have “in lieu of any further share or part of his estate.” He appears to have been fully aware of the true import of the words employed. The entire mass of the subject of property belonging to him, and which he was about to dispose of by his will, in the introductory paragraph of that instrument, he terms his “ worldly estate.”
    The construction which would interpret the words, “ any further share or part of my estate,” as meaning any further immediate share or part of my estate, finds nothing to support, but much to oppose it, in the language of the sequel of the will. The parts of his plantation which he devises to his five sons were surely regarded by the testator as not unimportant portions of their' “ shares or parts” of his estate, yet possession is withheld from the four elder sons until they respectively married or attained the age of twenty-one years, and it is expressly provided as to the youngest son that “his part of the said land” should be subject to the “use or support of his mother during life dr widowhood.” Seven out of the ten slaves disposed of by the will are given by the testator to his seven younger children, exclusive of the plaintiff. Yet it is expressly directed that those slaves are not to be given up to the legatees respectively until their marriage or majority. Undoubtedly these slaves composed material portions, and, in respect of the daughters, the great bulk, of their “ shares or parts” respectively of their father’s estate.
    It does not admit of question that the interests of the younger children in the slaves bequeathed to their mother for life come within the operation of the limitation over contained in the eleventh clause of the will. But those interests are there designated only by the words, “their share or part.” Those words appear therefore to be repeatedly employed by the testatoT in describing interests, not immediate or in possession, but expectant and deferred in enjoyment. There is also something of significance in the form of the limitation over expressed in the eleventh clause.
    In the contingency there specified, the portion of the deceased child was not to pass directly to the ultimatedonees, but first “to revert back to his estate,” from “any further share or part” of which the plaintiff is expressly exclude!. The construction which the plaintiff proposes to place upon the words of exclusion in the third clause of the will is regarded as inadmissible.
    It is undoubtedly an established rule in the construction of wills that, when two clauses are irreconcilable, so that they cannot possibly stand together, the clause which is posterior in local position shall prevail. “ But the rule referred to is not to be applied until after the failure of every attempt to give tbe whole such a construction as will render every part of it effective.” 1 Jarm. 115. It is added by the learned author whom I cite that, “ in the attainment of this object, tbe local order of the limitations is disregarded, if it be possible, by transposition of them, to deduce a consistent disposition from the entire will.” The conflicting clauses, it is conceived, may be reconciled by reading the words descriptive of the donees, under the limitations of the eleventh and twelfth clauses of tbe will, as referring to the testator’s children, exclusive of the plaintiff, if such construction shall seem warranted by the context. General words in one part of a will may be restrained, when it can be collected from any other part of the will that the testator did not mean to use them in their general sense; 2 Yms. Exrs. 790. After designating a fund out of which his debts are to be paid, and making a provision for his widow, the testator addresses himself to the task of disposing of the entire residue of his estate in respect of bis children. The remaining clauses of the will are devoted to this purpose solely. e
    His first step in that direction is to consider the claim of his daughter, the plaintiff, upon his bounty, and to reject it, declaring in effect that she had received an equivalent for her portion already, and should have no further share or part of his estate. After such a preface, to which of his children would we naturally and at once infer that .the testator intended to give the remainder of his estate ? Surely not to the child w'ho bad already been satisfied as to her portion, but to his other children, who as yet had been wholly unprovided for.
    Had the third clause of the will immediately succeeded the twelfth, would not the former have necessarily qualified and restricted the meaning of the words, “ my children,” and “ my surviving children,” in the preceding clauses ? When a testator makes a bequest to a plurality of persons, describing them not nominatim, but as a class, and in the clause immediately following declares that one of the persons composing that class shall have no part or share of his estate — • this, it is conceived, amounts to declaration plain that the person excluded by the latter clause is not intended to be embraced within the former. It is not perceived why less effect upon the construction of the limitations in question should be assigned to the third clause, standing where it does. Perhaps it derives even greater significance,; in that regard, from its actual position in the will, operating, as it does, as a distinct premonition that the words descriptive of the donees in the limitations of the eleventh and twelfth clauses of the will should be read' in a restricted and not in a general sense.
    That the words in question are used in other portions of the will in the limited sense imputed to them may be easily shown. In the second clause of that instrument, the testator gives to his wife certain portions of his estate during life or widowhood, to be held (in his own language) “for her use and benefit and for the maintenance and education of my children.” Assuredly the plaintiff was not intended to be included in the description, “ my children.” She was at the date of the will a wife and a mother, dwelling with her husband and children apart from her father, and having already received a provision out of his estate, which he at least deemed competent.
    The persons who are to take, after the widow’s death, the most valuable portion of the property bequeathed her for life, are designated by the same description which is employed to denote those who, during her lifetime, are to be provided out of it with maintenance and education. Having ascertained who the latter are, is it an irrational construction to conclude that the same persons were intended by the testator to be designated by the same description in the further disposition which he afterwards makes of the same property ?
    It may be inferred from the will that the testator’s children, exclusive of the plaintiff, were all in their minority at the date of the will. The words, “my children,” where they first occur in the eleventh clause of the will, undoubtedly do not include the plaintiff, and the “ surviving children ” afterwards mentioned, it is apprehended, should therefore be construed to mean the survivors, exclusive of her. In general, words occurring more than once in a will should be presumed to be used always in the same sense, unless a contrary intention appear by the context.
    After no little hesitation the judgment of the Court is, that the words, “ my surviving children,” and “ my children,” in the eleventh and twelfth clauses of the will, respectively mean the younger children of the testator — those for whom he had not antecedently provided — and do not include the plaintiff.
    It is ordered and decreed that the bill be dismissed.
    COPY WILL.
    “ State of South Carolina, Sumter District :
    “In the name of God Amen: I, Stephen Mitchell, of the State and district aforesaid, being weak in body, but sound in mind and memory, do make and declare this my last will and testament, in manner and form following: first, T resign my soul into the hands of Almighty God, hoping and believing in a remission of sins, by the merits and mediation of Jesus Christ, and my body I commit to the earth, to be buried at the discretion of my executors hereinafter named ; and my worldly estate I give and devise as follows:
    “1. I will that my debts be paid out of my crop now growing, and, provided the crop is not sufficient, that so much of my stock as may be necessary be sold to pay the balance of the debts.
    “ 2. Also, I give and devise unto my beloved wife Abigail Mitchell, the use of my farm, plantation tools, the house where I now live, household and kitchen furniture, all my stock of horses, cattle and hogs, not otherwise disposed of; also the following negroes: Sally, Sarah and Luna, and their future increase, during her lifetime or widowhood, for her use and benefit, and for the maintenance and education of my children; and provided my beloved wife Abigail should or does marry again, in such case I will and bequeath unto her, during her lifetime, a negro woman called Sally and a bed and furniture, all of which I give to my beloved wife Abigail in the foregoing manner in lieu of dower.
    “ 3. In consequence of a deed of gift made to my daughter Susannah Tisdale and her children, of a tract of land, whereon she and her husband Christopher Tisdale now lives, also a negro girl called Lucy and a stock of cattle, it is my will and desire that she shall have the said property in lieu of any further share or part of my estate.
    “4. Also, I will that my sons, as they may marry or arrive at the age of twenty-one years, have an equal dividend of the plantation where I now live, except that part whereon my dwelling-house is situated, which I will to my youngest son Samuel Clark as his part of the said land, subject, however, to the use or support of his mother during lifetime or widowhood.
    
      “5. I will to my son James a negro woman named Hannah. I will to my daughter Winney a negro girl named Grinny.
    
      “ 6. I will to my son Stephen a negro man named Shadrick.
    “7. I will to my daughter Abigail a negro girl named Eliza.
    “8. I will to my son Benjamin a negro boy named Adam.
    
      “ 9. I will to my son Daniel Clark a negro boy named Samson; and
    
      “ 10. I will to my son Samuel Clark a negro boy named Nat.
    
      “ Those legacies to be paid over or given up to the heirs as they may arrive to the age of twenty-one years, of as they may marry.
    " 11. Also, it is my will, should any of my children die before they arrive to age of twenty-one years or without leaving issue, then in that case that their share or part revert back to my estate, and be equally divided among my surviving children.
    “ 12. Also, should any of the negroes die which are named as legacies before the child to which it is named arrives at the age of twenty-one years, then the loss to the child so losing its legacy shall be made good out of my estate; the remainder or residue, when my youngest child arrives at the age of twenty-one years, or at the death of my beloved wife, to be equally divided among my children.
    “13. Lastly, I constitute and appoint my son James Mitchell and Hartwell Macon my executors, t.o carry this my last will and testament into execution and effect.
    “ Witness my hand and seal this 24th August, 1820.
    “ STEPHEN MITCHELL, [l. s.]
    “Test: Charles'E. Cordon.
    “0. Miller.
    “ Zachariah McKinney.”
    The plaintiff appealed, and now moved this Court to reverse the decree of his Honor, on the grounds:
    1. That the plaintiff is as clearly and unequivocally designated by the words, “my children,” used in the twelfth clause of the will, as any other child of the testator, and the argument upon which it is contended that the testator did not intend to include her is altogether conjectural, and therefore insufficient to sustain the decree.
    2. That it is equally as clear that the plaintiff is included within the words, “my surviving children,” used in the eleventh clause, and therefore if the provision of that clause defeated the share of Daniel 0. Mitchell in the “ remainder or residue” mentioned in the twelfth clause, then the plaintiff is entitled as a remainderman designated by the words, “my surviving children,” to a share of the share in the “remainder or residue” to which Daniel 0. Mitchell would have been entitled to had he lived to be twenty-one years old.
    3. But it is submitted that Daniel 0. Mitchell’s interest in the “remainder or residue” has not been defeated, and therefore that the plaintiff is entitled as his distributee to a share of the share in the “remainder or residue” to which he was entitled.
    
      J. S. G. Richardson, for appellant.
    1. “ Merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object.” 2 Jarm. 741. The plaintiff is not only a child, but she is one of .the heirs or next of kin. The negative words do not exclude her, and the words of gift clearly embrace her as one of the objects of gift.
    2. If two clauses of a will are so inconsistent that they cannot be reconciled, the last shall prevail. Fraser vs. Boon, 1 Hill, Ch. 360. As the terms of gift clearly embrace the plaintiff as one of the objects of gift, would it not be better to hold that the testator changed his mind, as he had a perfect right to do, than to adopt the view taken by the Chancellor ?
    3. Gleabury vs. Beckett, 14 Beav. 583 ; cited 4 Chit. Eq. Dig. 3572.
    4. One of the general rules of construction as laid down in 2 Jarm. 742, is, “ that an express and positive devise cannot be controlled by inference and argument from other parts of the will.”
    5. In Smith on Real and Personal Property, 776, 16 Law-Lib. 6th Series, 504, the third and fifteenth rules of construction of wills are thus stated: “ 3. An express disposition, though probably involving an oversight or mistake by the testator, cannot bo controlled by inference which is not necessary or indubitable.” “15. "Where an estate or benefit is conferred in one part of an instrument in terms which are free from all doubt, such estate or benefit cannot be taken away except by equally clear words in another part of the instrument.” These rules would seem to be conclusive. The twelfth clause of the will - contains an express and positive bequest; it confers an estate in terms which are free from all doubt, and it may be conceded that it probably involved an oversight or mistake by the testator, but then on the other hand it must be also conceded that it can only be controlled, if it can be controlled at all, by inference and argument .from another part of the will; that the inference that there was an oversight or mistake is not necessary or indubitable, and that the words upon which it is attempted to take away the estate conferred by the use of the words, “ my children,” and “ surviving children,” are not equally clear.
    6. We submit that the different clauses of the will can be reconciled, and the thirteenth rule of construction, as stated in Smith, 779, is, that “mistakes in a will are never to be intended if a reasonable construction can be found out.” We say that the testator, when he wrote his will, had two leading purposes in view: the first was, to make some provision for his wife and children to be enjoyed immediately, or within a reasonable and proper time after his death ; and the second was, to provide for certain contingencies and to dispose of the remainder in the negroes given to his wife for life; and that in the third clause of his will he had reference only to his first purpose. Upon this point see Rivers vs. Fripp, 4 Eich. Eq. 276, which'shows, we think, that the direct legacies to the children vested immediately upon the death of the testator, and that the delivery only was postponed, and not the right of property or the right to the profits.
    
      F. J. & M. Moses, contra.
   The opinion of the Court was delivered by

Dunkin, J.

By the third clause of the testator’s will it is substantially declared that he had already, by a deed of gift to the plaintiff and her children of certain real and pe/sonal estate, given to her what was to be regarded as her share of her estate. Eecognizing the validity of that gift/the testator ordains that it shall be held “ in lieu of any further share or part of his estate.” The plaintiff held the property which had been given to her under a title independent of the will, and beyond the control of the testator. Any attempt on his part to engraft on the title any contingent limitation, as was done in relation to the bequests to his other children, would have been manifestly inoperative and futile. When, therefore, he provides, in the eleventh clause of his will, that, in the event of the death of any of his children under twenty - one years of age, or without leaving issue, their share should revert back to his estate, and be equally divided among his surviving children, he had no intention to exceed his powers, and cut down the estate already irrevocably vested in the plaintiff. Her absolute rights could not be thus abridged, and the Court would not readily impute to the testator any such intention. When, therefore, he declares that, “ should any of his children die,” &c., “their share shall be divided equally among his (testator’s) surviving children,” he referred to those children of whose shares he had authority to dispose, and not to the plaintiff, (although one of his children,) but whose share was beyond his control. As, in the event of the plaintiff’s death without leaving issue, the surviving children of the testator would (under the provisions of the will) take no part in her share of the estate, so, in the correlative contingency, the plaintiff' is not entitled to participate in the share-of a deceased brother or sister.

Such is the construction adopted by the Chancellor, and by it the several clauses of the will are rendered consistent and harmonious.

It is ordered and decreed that the appeal be dismissed.

Wardlaw and Withers, J. J., concurred.

Decree affirmed.  