
    Augustus Taveau and Wife v. John Ball and Isaac Ball, Executors of John Ball.
    The late Mr John Ball made and duly executed his last will and testament on the 22d day of May 1816, vv[lerejn jie among other things, devise and bequeath as follows: “ Item, I give, devise and bequeath my plantations called Pimlico, Mepsham and Kicklico, left to me by my brother Elias Ball deceased, and all the negroes and slaves which shall be on or belonging to the said plantations at the time of my decease, together with all the stock, plantation, tools and implements on or belonging to the same, to and amongst all my sons, barn or to be born by my said wife Martha Caroline, to be equally divided amongst them, their heirs, executors, administrators and assigns, for ever; and in case any of such sons shall depart this life before me, leaving a child or children surviving, such child or children shall take the share intended for the deceased parent or parents for ever, to be equally divided between or amongst them if more than one. And it is my will that the divisions of the said plantations, slaves, stock and other articles, shall not take place until the youngest of my said sons shall attain the age of twenty-one years.”
    
    
      A devise «to and amongst all my sons, horn or to he horn,” — “ the division not to take place until the youngest of my said sons shall attain the age of 21,” — vests the estate in those living at the death of the testator, and does not postpone the vesting till the youngest becomes 21. The additional words, “ to he equally divided amongst them, their heirs, &c. and in case any of such sons shall die before me, leaving^ child or children surviving, such child shall take its parent’s share,” (no son dying before the parent) do not create survivorship among the sons, where one dies after the testator; but the estate being vested in him, his share was distributable among his next of kin, when the youngest son arrived at 21. But the rents and profits of his share were distributable immediately, the mother’s share given to her and the shares of the minors vested in stock.
    
      1825.
    
      Charleston.
    
    Mr John Ball, the testator, died, leaving the said will and testament in full force and virtue. Since his death, on the 29th of June 1822, Mphonso Comyns Ball, one of the sons of the testator, entitled to a share in the estate so devised, departed this life unmarried and without issue. The widow of the testator and mother of the said Mphonso, after his death, intermarried with Augustus Taveau, and they have filed their bill, claiming a share in that part of the above estates to which Mphonso was entitled under his father’s will. The claim was resisted, on the ground that the devise of the plantations, Pimlico, Mepsham and Kicklico, and the slaves thereon, to the sons of the testator, by his wife Martha Caroline, did not give them any present or vested estate, but was contingent, and depended on their severally being alive and in a capacity to take, at the time fixed for the division of the estate; to wit, on the attainment of the age of 21 years by the youngest son. It was admitted by the defendants that there was no express survivorship created by the will among the sons to whom these estates. were devised. But it was contended, that survivorship was implied among the sons of the testator by his then wife.
    January 1825.
    De Saussure, Chancellor.
    This case has been well argued and many authorities cited by the counsel. The cases on this subject are multifarious, and the shades of distinction are very nice, owing, without doubt, to the endless variety of expressions used in last wills and testaments. But, after all, we must endeavour to find the meaning of the testator by the words he uses, and by giving them a natural and reasonable construction.
    In the case we are considering, the testator makes an absolute, unequivocal, devise of the estates in question, to be equally divided among all his sons by his wife Martha Caroline, their heirs, executors, &c. for ever. This devise carries as plain a vested estate amongst these sons of the testator as tenants in common as can well be expressed; and I think that no question could be raised upon it, if the testator had stopped there; but he has added two other clauses' which, it is argued, give a different character to the devise. The first is a provision, that if any of his said sons should die before the testator, leaving a child or children surviving, “ such child or children shall take the share intended for the deceased parent or parents for ever, to be equally divided amorigst them, if more than one.” Now it is evident, that this provision was intended merely for the case of one of the sons dying before the testator, and then his share in the legacy becoming lapsed, though he might have left children. This case has not occurred, and the clause can have no bearing on the question before us. The next clause relied upon is as follows: “ It is my will that the division of my said plantations, slaves, &c. shall not take place until the youngest of my said sons shall attain the age of 21 years.” It is argued for the defendants, that the postponement of the division of the estate prevents its vesting until the appointed period; or rather operates to divest what was previously given absolutely as a vested interest. On the best consideration I have been able to give this will, it does not appear to me that the clause in question produces that effect. The time of the division is not at all connected with the substance of the gift. The preceding clause,had given these estates, absolutely and unequivocally to the sons, and gave a plain vested interest. The postponement of the.division (which was manifestly a matter of convenience, on account of the nature of the property,) will not in my judgment divest that interest. To be sure, the testator might have used words which would have produced that effect, but he has not used them. Even in cases, where*the bequest is coupled closely in the same sentence with the time of the division, it by no means follows that the bequest does not give a vested interest. For, in some of them, where legacies are given to children, to be equally divided between them when they arrive at a' certain age, the legacies have been held to vest immediately, and only the time .of payment postponed. The cases decided by our own Courts have conformed to this doctrine. But it is argued that though there is no express provision for sur-vivorship in the case we are considering, there may be survivorship by. implication, and authorities were cited to prove this. There is no doubt of that; but it must be a plain and indeed a necessary implication. Now I do not perceive, on close examination of 'the will in question, either a plain. or necessary implication of survivorship among the devisees.
    stance of the fngls^otpost-poned to the vision. Where the time of the division is not connected ith the sub-
    To raise an pikaüonf IT' must be by a cessary implication.
    it is quite possible that if the testator had anticipated the event which has occurred,- he might have provided against it, and given the right of survivorship; but he has not done so.
    Danger of thevestinf.
    There is one view of the question also, which should make us cautious of creating the right of survivorship among the devisees by ingenious and astute ing. If survivorships were given, and one of the elder of these devisees should grow up to maturity and have children, and then die before the time of division, to wit, the attainment of the age of twenty-one years by the youngest son, which may yet happen, this right of survivorship, now so eagerly contended for, would carry away the rights of his children to the survivors. Upon the whole, I am of opinion, that the interest given by the will to these devisees was a vested interest, and transmissible to the representatives of any of them who might die before the time of division, and that no right of survivorship is' expressly given, and there is none by plain or necessary implication. With respect to the time of division, I am clearly of opinion that it is definitely fixed by the will, and that we cannot alter that. Mrs Taveau, and the other representatives of Mphonso Ball, must be contented to wáit till the arrival of the period appointed by the testator for the division.
    It was contended for Mrs Taveau, and the other representatives of Mphonso Ball, that if they were not entitled to an immediate division, they were entitled at least to an account of the rents and profits, past and future, of his share of the devised estates, and to receive them annually. The testator has directed accumulations as to other parts of his estate, but he has not made any provision for accumulation as to this part of his estate; and though it will be the duty of the executors and guardians of these devisees to invest the surplus income in productive property, that does not take away‘the right of complainants to an account, and to receive their share of the rents and profits till the division.
    
      
      25 March 1825'
    It is therefore ordered and decreed, that the com-piajnants, and other representatives of Alphonso Ball, are entitled to his share of the devised estates now in question, and to have a division thereof when the youngest son of Mr Ball the testator comes of age.
    It is further ordered and decreed, that the executors do account for the rents and profits of the devised estates, and pay over to the representatives of Alphonso Ball, who are now before the Court and claiming, their share of such rents and profits as have already accrued or may hereafter accrue. The mother of the said Alphonso Ball to be entitled to a child’s share, and all the brothers and sisters of the said Alphonso, of the whole blood, to be entitled to equal shares of the remainder of the rents and profits, which should be invested for their benefit.
    From this decree there was an appeal taken up by the defendants,,on the ground that the will did not create a vested interest in Alphonso Ball.
    
    
      J. E. Holmes, for the appellant.
    This is a case sui generis. The intention can only be gathered from a construction of thé different clauses of the will. When the devise appoints a time for -the division of the estate, those who are then in esse, alone, can take. 2 Mad. Ch. 17. Hawes v. Hawes, 1 Ves. Sen. 14, S. C. 3 Atk. 524. The words, “ to be equally divided,” do not create a tenancy in common, and destroy the idea of a survi-vorship. 3 Bac. 679. The testator clearly intended Only those should take who were alive at the time the youngest came of age, by the terms used in the will, which amounted to a descriptio personis at that particular time. Godfrey v. Davis, 6 Ves. 49.
    
      
      Hugh S. Legaré,, contra.
    The words, “ to be equally divided,” created a tenancy in common, and vested the .estate. They did not permit of survivorship. The will provided for the case of a lapsed legacy, but said nothing of survivorship. The maxim, expressio unius exclusio alterius, applied. The Court have always been very much opposed to establishing survivorships. Drayton v. Dray-ton, 1 Desaus. Rep. 324. Montgomerie v. Woodley, 5 Ves. 522. Russell v. Long, 4 Ves. 551.
    GrimM, same side.
    All of our laws look rather to the distribution of property than its accumulation. Real and personal property are governed by the same rules when they are mentioned together. The general intention of the testator is to govern. The circumstances which gave rise to this suit were not foreseen by the testator, and have produced casus omissus, not affecting the general intent. The will provided for contingencies as regarded the legacies to the daughters, but not those to the sons; therefore it appeared that the testator intended the legacies to the sons to vest immediately. The words, “ equally to be divided,” make a tenancy in common. Drayton v. Drayton, 1 Desaus. Rep. 324. 3 Bac. 680. The legacy vested at the death of the testator. The time only referred to the payment. 4 Bac. 393. If the time of division be not the substance of the gift, it is only matter of regulation. 4 Bac. 394. 396. In the case of Cochran v. Cochran, 3 Desaus. Rep. 186, a survivorship was created. The cíase of Drayton v. Drayton was a much stronger case for survivorship than the present. Cro. Jac. 448. Sansbury v. Read, 12 Ves. 75. Wadley v. North, 3 Ves. 364. Cowper, 777. 3 Atk. 524.
    
      Holmes, in reply.
    In the case of Drayton v. Drayton the persons were named, and therefore it made a clear case of descriptio personis. He relied upon the case of Cochran v. Cochran, 3 Desaus. Rep. 186, which' that the legacy did not vest but upon the contingency.
    
      
       See on this subject the cases collected by Mr Eden, in his edition of Bro. C. C. (3d Volume, 404.) in a note to Andrews y. Partington, a leading case on this subject.
    
   On the 28th of March the Court gave the following certificate: The Court concur in opinion with the Chancellor in this case, and the decree is therefore affirmed.”

Decree affirmed.  