
    Frierson vs. Van Buren and others.
    
    Testator devised as follows: I leave to my beloved wife, all the above stated property during her life or widowhood: she is to pay my debts out of the property, also school my children and clothe them: my wife is to have an equal poition of the property with the children: if she marries, there is to be an equal division with her and my children of the whole property: there is to be a division each time that cither of my children arrives at the age of twenty-one years, or marries, with them and my wife: if she marries, she is not to share with the children in their separate divisions: — should either of them lose their breath entirely, she is not to share with my children neither,” &c. Held, upon the construction of this will,
    1. If the widow continued sole, she was to share equally with the children, and as any one became of age or married, the property was to be divided, and such one take its portion absolutely; and that the residue should remain in common until another like event, when the same process was to take place, and so on, until at last, the mother and remaining child, unmarried, and an infant, would share equally in the residue.
    2. If the widow married, then the property was to be equally divided with the children, and she was to take her share out of the common stock, leaving the portion of the children undivided.
    3. That in the event of the widow’s marriage, as any one of the chil— dren became of age or married, their joint property was to be divided, and the portion of such one separated from the common stock and vested in such child absolutely.
    4. That if the widow married, and any one of the children should die before arrival at full age or before marriage, the portion of such child would vest in the survivors, the mother having no share in such portion; that it was, in effect, a limitation of the estate to the survivors, upon the death of any one of them, before arrival at full age or marriage.
    Where an aggregate fund is bequeathed to children as a class, they take as tenants in common; and in such case, if one die before the period limited for a division of the fund, the estate or fund survives to the others.
    James Pain, on the 8th of June, 1817, made his last will and testament as follows: “In the name of God, I, James Pain, do declare this to be my last will and testament; whereas I disposeth of my real and personal property. I leave to my beloved .wife, all the above stated property during her life or widowhood: she is to pay my debts out of the property, also school my children and clothe them: my wife are to have an equal portion of the property with the children: if she marries, there is to be an equal division with her and my children of the whole property: there is to^be a division each time that either of my children arrives at the age of twenty-one years, with them and my wife: if she marries, she is not to share with the children in their separate division: should either of them lose their breath entirely, she is not to share with my children neither. My wife shall be at liberty to remove the property to any part of the country that she may think proper. I leave my wife Mary W. Pain, my executrix, John Alexander, John Taylor, Richard Taylor and Phineas Willis, my executors. In testimony whereof, I have hereunto set my hand and seal, this 8th day of June, 1817. James Pain.”
    Shortly after the will was executed, the testator died, leaving his widow and three children surviving him. Mary W. Pain, the widow of the testator, married the defendant, Van Burén, on the 5th March, 1822, and Robert A. Pain, one of the children, died on the 23d January, 1823, about twelve years old, and unmarried; and Sarah W. Pain, another of the children, died in Febru- ’ ary, 1830, about sixteen years old, and unmarried; and Mildred N. Pain, the only surviving child of the testator, intermarried with the complainant, Frierson. Upon the marriage of Van Burén and wife, a fourth part of the estate of the testator Pain was allotted to them, leaving the other three-fourths undivided. Before the death of Robert, his half sister, Caroline Matilda Van Burén, was born; and before the death of Sarah, her mother had two other children, Martha A. and Lucy R. Van Burén, all of whom were then in life. These sisters of the half blood, claim an equal share with the sister of the whole blood, of the estate of Sarah; and Caroline Matilda Van Buret), claims to share equally with her sisters Mildred and Sarah, of the estate of Robert; and such was the Chancellor’s decree.
    
      F. B. Fogg, for complainants.
    The property, in case of the death of either of the children before marriage or coming of age, vests by the will in the survivors, it being an aggregate fund, and bequeathed to children as a class. The portion of each child does not descend or become liable to distribution as an intestates estate, but vests by virtue of the will itself; for the wife would, by law, be entitled, but she is excluded.
    He cited and commented upon 1 Turner & Russell Rep. 413, 415; 3 Atkins’ Rep. 78; 3 Brown’s Chan. Cases, 465; 2 Roper on Legacies, 289, 309; 1 Roper, 33; 2 "Wms. on Executors, 763.
    
      Oeo. S. Yerger and Gideon J. Pillow, for defendants.
    This will is very inartificially drawn, and it is difficult to find'out what the testator’s intention really was. The complainant insists, that the testator meant,upon the death of either of his children, to give the portion of the child so dying, to the survivor. We contend that he meant merely to exclude the widow, that is, that in the distribution of the property, she was to have no share; but that such persons as might be distributees should take, excluding her altogether.
    It is probable the testator did not contemplate or foresee the probability of their being other distributees besides his own children. He knew the law would divide the part of the one dying without issue equally between the mother and the survivors; and if he had thought of there being other distributees, he probably would have provided for such a case. But it is evident, his intention was merely to exclude her, leaving the share of the one dying to go to such persons as would be entitled by law, the. widow excepted. What is bis language? “If she marries, she is not to share with the children in their the separate divisions; should either of them lose their breath entirely, she is not to share with my children neither.” This was intended to exclude her from all share; but it does not necessarily exclude others who would be entitled by law. Whatever might have been his intention, he has certainly not used words sufficient, to give the share of the one dying to the survivors.
    The rule of law is well settled, that where a testator in the disposition of his property overlsoks a particular event, which, had it occurred to him, he would in all probability have provided against, the'court cannot rectify the omission, by implying or inserting the necessary clause, conceiving it too much like making a will for the testator. 2 Roper Leg. 322; 3 Bro. Chan. Cases, 469, note; 3 Bro. Chan. Rep. 395, note; Grasse vs. Drum-mond, 1 Simon & Stuart, 517; 2 Roper, 327.
    Where the court can merely infer or conjecture what the intention is, but no words are used to effectuate such intention, they cannot be supplied. See the cases above cited. 3 Br, Ch. Rep. 469, note; 395 note; see, also, Frederick vs. Hall, 1 Vesey, jr. 396; Upton vs. Farris, 5 Yesey, SOI; Scott vs. Chamberlain, 3 Yesey, 302, 491.
    The mere attempt to exclude one distributee from the share of another dying, does not by necessary and unavoidable implication, operate as a legacy or gift to the others, of that one’s portion; because, although he intended that one to be cut out, he does not intend to cut out the children of those dying, which is the necessary consequence of such construction. The implication must be unavoidable, absolutely necessary, as there is no express limitation to the survivor. 2 Roper 309, 311; Finch’s Rep. 436; 2 Simon & Stuart, 383.
    A devise to an heir at law after the death of C, would, by necessary implication, give an estate for life to C,, because the testator prevents the heir from taking until , , ■ i *• . t C s death, and if C does not m the mean time take, no person can. But a devise to C, after the death of B, does not, by necessary implication, give an estate for life to B, for the estate in the mean time can vest in the lieir. 6 Cruise’s Dig. 205, 6; 1 Mer. Ch. Rep. 414.
    In this case, the testator could not, if he intended it, create a joint tenancy, that being abolished by the act of 1784, in both real and personal estates; the survivors, consequently, could only take by way of remainder, which must be by express limitation.
    The share of each child was vested at the death of the parent, and consequently, was transmissible to their representatives, if not expressly given over in the event of their dying, to the survivor; in which case, it would be an executory devise or bequest; and in such case, the shares which had once survived could not again survive. 2 Roper Leg1 286.
    But suppose the will had have read, should either of my children loose their breath entirely, 'his or her share to go to the survivor or survivors, and his wife to have no share of the child’s part so dying. As there is no time fixed when the death is to happen, it is settled that those general words must be confined to a death happening before the testator’s; and if the death of the legatee does not happen before that time, the interest vests absolutely, and the mother and the half blood sisters are all entitled. Lowfield vs. Stoneham, cited 8 Vesey, 13, 21, 413; .Hinkly vs. Simmons, 4 Vesey, 161; 1 Russell, 165; 2 S. & Rawle 59.
    The meaning of the testator in this point of view, is obvious. Should any of his children lose their breath, in his life time, his wife was not to have any part of that share. He intended her to have only one-fourth, but if the child survived, if is an absolute interest in the child. Any other construction would give life estates to the children only, with contingent limitations to the survivors.
    
      But can his intention to exclude the widow avail, if he has not limited or given away such portion as she would be entitled to? If the words of the will give the absolute interest to the children, upon their death intestate, the law designates how the property shall be divided. The party who gave the property cannot' alter the rule of law. He may give it upon condition, .or, upon1 the Happening of such an event, may limit it tp others. But where he has given it absolutely,.a direction that a particular distributee shall not take, is of no avail.
    The intention of a testator must prevail, if sufficient words are used, except where it violates a rule of law. Bell vs. Smith, M. & Yerger, 302.
    
    Suppose a man devises all his property to his six children, and says, if either die, my will and desire is, that my oldest son shall have no part in the share of the one so dying. Here is not a limitation of the share to the others, but an attempt to let the distributees of the one dying take, excluding the oldest son. Suppose property is given to A and his heirs, and if he-die intestate, my will is, that his distributees shall not taikte, and there is no limitation to any one else, will not the distributees take, notwithstanding.
    If the limitation is to the survivors as a class, as Mr. Fogg contends, then if one of the daughters marry and have children, and die; then one of the other children die before devisor, according to. his construction, the children of the deceased sister is cut out, and it must go to the-surviving child; which never could have been contemplated by testator.
    Such a construction will also cut out the children of all, (if they had any), who first die; for, if upon the death of either, the survivor by force of the limitation takes his share, it necessarily excludes the .children of the child so dying. This certainly never was intended by the testator. Yet such would have been the inevitable result, if his construction is correct.
   Green, J.

delivered the opinion of the court.

Although, from' the inartificial manner in which this will is drawn it seems at the first view to be difficult to comprehend the meaning of the testator; yet, upon a close examination of this instrument, the difficulty disappears. The testator, contemplating the possibility of the marriage of his wife, has made a disposition of his property as applicable to the state of things which may exist, either upon her continuing sole, or upon the event of her marriage. If she continue soZe, she is to share equally with the children, and as any one of them may become of age, or marry, there is to be a division, and such one is to take its portion, which then vests absolutely in the child so becoming of age or marrying; the residue remaining in common, until another like event, when the same process is to take place, until at last, the mother and the remaining unmarried or infant child are to share equally in .the residue. But if she marries, there is to be an equal division with the children, and she is to take her share out of the common stock, leaving the portion belonging to the children still undivided. As any one of the children may become of age, or marry, a division is to take place among them, and the portion of such one is to be separated from the common stock, and held as his or her absolute property. And if any one of the children should die before becoming of age, or marrying, the portion of such one, is to vest in the survivors, the mother having no share of such portion.

The language of the will is, “if she marries, there is to be an equal division with her and my children of the whole property: there is to be a division each time that either of my children arrives at the age of twenty-one years, or marries, with them and my wife; if she marries, she is not to share with the children in their separate division; should either of them lose their breath entirely, she is not to share with mv children, neither.” The only possible sense of this last clause, is, that as the wife is not to share with the children, if one of them die, as a consequence, the surviving children are to take the estate. To say that she shall not share with them, is, in effect, to say that they shall be exclusively entitled. Taking it for granted, that this is the plain sense of the will, it is a limitation of the estate to the survivors, upon the death of any one of them, before arriving at'full age or marrying. Although it is not expressly said, that the limitation is confined to a dying before marriage, or arrival at full age, yet, that is the plain meaning of the testator; because the estate is to vest in severalty on the happening of either of those events, and becomes absolutely the property of the holder; and because, in the clause under consideration, the testator speaks of the ‘‘separate divisions of the children,” as before stipulated, and in con-nexion with this, speaks of the death of any one of them, and says, that “in such case, she is not to share with my children, neither.” Here, then, he can only mean a death, happening before the time at which it is prescribed in the will, that'these separate divisions shall take place. It may also be observed, that this estate was an aggregate fund, and was bequeathed by the testators to his children as a class, and they took as tenants in common. In such case, if one die before the period when the division was to take place, that is, twenty-one, or marriage, the estate survives to the others, (3 Atk. 80, 1 Turner & Russell, 413, 415). The testator here clearly intended that, the estate should be kept in one aggregate mass, until the happening of some of the events upon which portions of it were to be taken out, leaving the balance still unbroken. It was the share of any one of his children, who might die before twenty-one or marriage, in this unbroken mass, that he intended to limit to the survivors. The language c.learly shows that he intended his estate should go by virtue of the will, and not be distributed under the statute. _ The very exclusion of the wife, who, by law, would have been entitled, is proof of this; and when we add to this, the plain inference from the language of the will, that in the event of the death of one, “she is not to share with ray children,” it is put beyond doubt, and fixes the limitation to those children with whom she was not to share. It would be a strange construction to say, that he intended to exclude her if she married, and yet that he designed to let in the issue of such marriage.

If this' be the meaning of the will, the next inquiry is, whether there is any rule of law which will prevent the intention of the testator from taking effect. There surely is none. The children had no power to dispose of their estates within the time limited for the death to happen. It must occur, at the farthest, in less than twenty years. Then, as the testator had the power to give his estate to his children, to be divested upon the happening of a particular event, which must occur in less than twenty years, and having, as we think, made the limitation in this case, we are of opinion that his intention ought to be carried into effect, and that the decree be reversed, and a decree for complainants.

Decree reversed.  