
    John Myers and Others v. David Myers, Executor or Jacob Myers and Others.
    A devise to grand-children, without any definite future period fixed for distribution, vests only in such grand-children as are in esse at the death of the testator. When the father is in indigent circumstances, and his children wealthy, the court will allow for maintenance; otherwise the parent must support his children. Expenses of education allowed, being charged on the estate of the child. There may be cases where the court may look beyond the will for the meaning of the testator. In a devise to children, if there is no definite period for distribution, the legacy vests at the death of the testator, and none can lake but those in esse at that time. 13ut where there is a fixed period, all the children born before that time will be let in, and none others. A legacy may be vested, though the time of payment is postponed. All who can entitle themselves under the description of the devise at the time of distributing the fund, may claim a part; as well as those born after the death of the testator, as before. To let in children born after the death of the testator, there must be some subsequent period of distribution fixed, or it must depend on some contingency, and not left indefinite. If Left indefinite, none but those born before the death of the testator can take. The period of distribution is indefinite in this case. And the devise vested only in those born at the death of the testator. The words of the will, “now bequeathed,” shewed intention to vest on the death of the testator. So appointing a guardian to manage the property. Where the devise is indefinite, a legacy of a slave to a third person for life, and at the death of the tenant for life, to fall in the general division of the estate to children, will not postpone the vesting after the death of the testator. The general bulk of the estate will not be affected by a trilling legacy falling in at some subsequent period. If there is an intention that the distribution, should take place at some future period, yet if the period is indefinite, none can take but those born at the death of the testator. The age of twenty-one cannot be assumed as the period, because it is the most suitable period to complete one’s education. Reason for the general rule. An exception to the rule is where there are no children at testator’s death. Where a parent directed his property to be equally divided among his children, a posthumous child, not provided for, before our act, would have been excluded; as in Yiner v. Francis. The gift being y>er verba in yrcesenti could only vest in those in esse at the death of the testator. A devise of u all my landed estate,” with a particular description following of the tracts devised, does not comprehend a town lot not enumerated, and the heir at law takes it by descent, though excluded from all testator’s estate with a shilling legacy. The construction aided by the residuary clause comprehending personal estate only. The court will not allow a father, who is trustee for his child, for maintenance unless the parent is in indigent circumstances. Expenses of education allowed, being charged on the child’s estate. A trustee (executor) is entitled to be remunerated for the actual amount of money'or labor bestowed on such improvements as are necessary to preserve the property, or to render it permanently more beneficial; but not on ideal or unsuccessful experiments. All purchases made by a trustee with the funds of the trust estate belong to the cestui que- trust. It is no answer on the part of the trustee that he has so mixed up the two funds that he cannot distinguish his own from that of his cestui que trust. A person by mixing the estate of another with his own, may sometimes subject himself to the loss of both. Where the trustee refuses to account, the court will adopt the most rigid rule for calculating interest. Compound interest sometimes allowed on that ground, and calculated on short rests. If the property purchased by the proceeds of the trust estate cannot be ascertained, the court will charge the executor with the rents of land and hire of negroes, and with interest on the annual balances. Many cases in which compound interest is allowed. As where interest is ordered to be paid annually for maintenance and education, interest was allowed on the annual balances. It is often a matter of discretion with the court. Where the annual income is appropriated to the education of the cestui que trust, the trustee must pay interest on the annual balances. Deduction allowed for improvements, education of the children, and for the maintenance and taxes of the young negroes. And reference ordered to ascertain at what age of the young negroes maintenance should cease. Reference ordered to ascertain if property given to one child, on marriage, was intended as an advancement in marriage, or a payment of the legacy.
    Jacob Myers, late of Lexington district, South Carolina, made and executed his last will and testament on the 16th of February, 1804. He was possessed of a considerable real and personal estate, and died soon after making his will : and the defendant, David Myers, his only child, on the 6th of August ensuing, qualified as executor. The questions in this case arose upon the construction of this will. The testator, in the first place, devised as follows:
    
      “ I give and bequeath unto my dear and beloved grand-children, being the lawful issue of my dear son David Myers, to them and their heirs forever, all my landed estate, which consists together of three thousand seven hundred and fifty acres, fyc., fyc., [here followed a description of the tracts, not mentioning a lot of land in the town of Columbia, which will hereafter be alluded to] as appears by the plat thereof, and which said land, I do hereby direct, may be divided, &c., in manner and form following : Item, if only one grand-son and two *granddaughters, I give and bequeath the one-fourth of the said land to be divided equally between the two grand-daughters, and the remainder to the grand-son. If more than two grand-daughters, in such case the said grand-daughters shall be entitled to one-third part of the said land, to be equally divided, share and share alike, and the remainder to the grand-son. But if two or more grand-sons, 1 direct the said lands shall be divided in equal proportions amongst them, my said grand-sons; the swamp land in proportion with the pine land, and my grand-daughters are then in such case not to inherit any part of this my real estate, but shall be provided for as hereinafter directed.
    2. “ Item, All my negroes [except a devise hereinafter mentioned,) together with all future increase of the family, I give and bequeath unto my said dear and beloved grand-children, to be divided equally amongst them, share and share alike.
    3. “Item, I also give and bequeath unto them, my said dear beloved grand-children, all the rest and residue of my personal estate, of every species, kind, and denomination whatsoever, to be divided equally amongst them, share and share alike.
    4. “ Item, I give and bequeath unto my dear and beloved son, David Myers, one shilling sterling, as full compensation, and as his full share of all my estate, both real and personal.
    5. “Item, I give and bequeath unto my dear beloved daughter-in-law, Talby Myers, wife to my son David Myers, one shilling ster-ing.
    
      6. “ Item, In case of the total dissolution of my son and his issue, lawfully begotton of his body, I bequeath all the aforesaid property, real and personal, to be divided equally btween the children of my brother Conrade Myers and the children of my sister Magdalina Theus, to them and their heirs forever.
    
      “ Item> 1 g*ve and bequeath unto my esteemed friend, Mrs. Elizabeth her natural life girl named Rachael, at this time about ten years age: and at her decease the said negro and such her increase, if any, shall be deemed as part of my personal estate, and go in division with my other negroes, as part of the bequest made unto my dear and beloved grand-children, to them and their heirs forever.
    8. “Item I hereby appoint and constitute my dear and beloved son, David Myers, to be sole executor of this my last will and testament, and do hereby direct him to call in all and every of my outstanding debts, and to pay all and every of my just debts, dues or demands, that I may be justly indebted, but at present I do not recollect of any; in consequence, I leave a clear and valuable estate to his management, and I earnestly exhort him, my said dear son, David Myers, to be a true and faithful guardian and protector of this valuable properly, which is for the sole benefit, in the end, of his dear children. I request him to have them well, educated out of the profits arising from this estate now bequeathed unto them; for a good education is a valuable blessing: and I now earnestly recommend him, his wife and his dear children, to the protection of Almighty God,” &c., &c.
    At the execution of the testator’s will, his son, David Myers, had two children born, the complainant Dr. John Myers, and the defendant Mrs. Clendenin ; his wife, then being pregnant, was delivered of another son, the defendant William Myers, previous to the death of the testator. Since the death of the testator, and before the filing of the bill, the defendant, David Myers, had six other children born. This bill was filed by the complainant, Dr. Myers, against the executor for an account and for a division of the estate, according to the will of his grand-father. It appeared in evidence that the defendant* had kept no accounts, but had mixed up the property with his own, and with the proceeds of the whole had purchased other estates, and had greatly increased the property. That at the time he qualified and took into his possession the estate of his father, he was worth little or nothing, but he had now an immense estate, which he claimed as his own, mingled with the trust estate. He never made any returns to the ordinary, and upon the whole had acted with regard to, and so conducted, the estate, as if the same were entirely his own. The defendant in his answer contended that he had a right so to manage the estate. That the will was made at his particular request and suggestion. That the property was intended for the benefit of all of his children, and that he had intended to divide this estate, as well as his own, equally among all his children; and that by the will he was authorized to keep possession of it, and to manage it in such manner as he saw proper, during his own lifetime : and that it was not the intention of the testator to have it divided before that period, at which time all such children as he might then have, would be entitled to come in for their portion, under the will.
    
      The testator, at the time of making his will, owned a lot in the town of Columbia, which was not mentioned in the will. The complainant contended that it passed under the first and last clauses of the will, and that the defendant, David Myers, was expressly excluded from any part of the estate by the fourth clause in the will, and that, therefore, it was not to be presumed that the testator intended to die intestate as to this piece of real property.
    It was admitted on all hands that the estate was a very large one, and as Dr. Myers was of age and had a family to support, Chancellor DeSaussure, on motion and upon reading the bill and answer, and exhibits* and affidavits on behalf of both parties, ordered the defendant, the executor, to pay over quarterly to Dr. Myers an annuity of §1,600 until the future order of the court, and the sum of $5,000 as an outfit. This order was, at a later stage in the cause, extended to William Myers, who had, in the meantime, also come of age and married, so far only, however, as to the annuity.
    On the hearing of the cause the following points were made.
    1. Were the children of David Myers, born since the death of the testator, entitled under the will with those born before his death?
    2. Whether the lot in Columbia ivas included by the will, or whether it descended, as undevised, to David Myers?
    3. Whether the defendant, David Myers, should be allowed for the education of the nine children, if all were entitled; and if only three were entitled, whether he would be made such allowance for those three ?
    4. Whether David Myers should be allowed for the improvements on the lands of the estate?
    5. Whether David Myers should be allowed anything for his services?
    6. Whether David Myers should be charged with annual rests, or, in other words, with the interest on the funds he had received, compounded ?
    7. Whether the estate of Jacob Myers included the purchases of property made by David Myers since the death of the testator, or, in other words, whether David Myers was bound to account for the profits of that estate, or only for the rents and liens?
    8. Whether David Myers should be allowed for the raising and maintenance and taxes of the younger negroes until they attained the age of fourteen ?
    9. Whether David Myers should be allowed for advancements* made to Dr. John Myers, William Myers, and Mrs. Clendenin?
    Preston, for the complainant, John Myers.
    The question is, who are entitled under this will? The cases on the subject are very numerous. The general rule applicable to this case is as to its vesting. The earliest period is always adopted. 2 Ves. Jun. 689. The earliest period is adopted, because the law sees no other at which the party may not have children. Horsly v. Chaloner, 2 Ves. Sen. 83. When given to take effect at an indefinite period, it vests at the death of the testator. Stapleton v. Palmer,4 Bro. C. C. 490. Hutchin v. Manning-ton, 1 Ves. Jun. 366. This is rather a rule of law than one of construction. Whatever may be the meaning, if it be indefinite, it will be confined to that period. An intention to extend the provision to persons beyond the period of the testator’s death, unless clearly expressed, will be inoperative. The court will not make such construction unless compelled. Ellison v. Airey, 1 Yes. Sen. 111. An express, immediate disposition is not to be altered by a subsequent inference. Collet v. Laurence, 1 Ves. Jun. 268. If this case can be brought under any one of these rules, it will be sufficient. It is deemed possible to bring it within all of them. The first rule laid down is one of policy. It is injurious to property to hang it up. The policy of the country is, to circulate and render it serviceable to the happiness of the people at all periods. What period is contended for by the defendants? The death of Colonel Myers? That is indefinite. So the coming of age of the children generally is indefinite. But the will in neither case says any such thing.
    The third rule is, that the intention must be clearly expressed, and that the court must be compelled by the clearness of the expression to suspend the distribution *beyond the period of this rule. The law presumes that David Myers may have children to the period of one hundred years. The counsel for the defendants have contended that the period of Myers’s life was intended, and the chancellor, notwithstanding their argument, seems disposed to fix upon the period of twenty-one. Certainly, then, the expression of intention is not clear to extend the period beyond the death of the testator, when the party can fix no period when it does vest. They argue various periods. That shows it to be uncertain and indefinite; and if they cannot shew at what period, the general rule then applies, and restricts it to the death of the testator.
    The other rule is, that an immediate disposition in a will is not to be altered by subsequent inference. 1 Yes. Jun. 269. Whenever this rule is extended, it is only in cases where a father gives to his children, but never where any other person gives to the children of another. Here is a distinct immediate devise to the children, and no inference is to suspend it till any period subsequent to the death of the testator.
    The defendant was living in North Carolina, and he had, at the time of the testator’s making this will, paid a visit to his father with his family. His wife then had two children, and was enciente with a third. The testator’s words then, doubting the number of his grandchildren, were owing to this circumstance. He might have contemplated the possibility of his son’s wife having twins. The thing was very possible, and he intended the will not to operate the day he made it, but when he died, which he might have considered would not happen for several years, when his son might have had several children. And it is evident that the defendant looked to a subsequent state of things to change the construction of the will, instead of construing it under the circumstances existing at the death of the testator. The *will speaks for that period. It is immaterial how many children were contemplated; if five hundred, it did not vary the rules of construction contended for. The testator looked to this contingency, and the period of his death, says the law, shall settle the contingency, unless the testator, by express words, fixes some future or other period. David Myers is barred. He is expressly excluded. The children alone are to take, and it vested in them immediately upon the death of the testator. It was a stronger case than those which give the interest and the principal, differently. The mode of division is prescribed, but nothing is said about the period. Out of the profits of the estate now bequeathed to them, he orders the children to be educated. The son, David Myers, was as rich as the father at that period, as he contends. If so, the testator had no necessity to provide for all of David Myers’ children. David Myers could provide for those afterwards born as he pleased. The order to educate the children is urged as a reason for fixing the period at the time of the oldest arriving at the age of twenty-one. But appointing David Myers guardian was nothing more than the law had already done, and it was only done to direct as to the education. For although the children being minors could not sue for their shares until they were twenty-one, yet that did not prevent their right vesting, as in every case of minors. As to the argument about Mrs. Dutilly’s negro girl, it would scarcely be contended that the great body of the estate was to be kept together until that lady should die, to wait for the distribution of such a trifle. In Ellison v. Airey, 1 Yes. Sen. Ill, the legacy was held to be contingent, as the reason why it was extended beyond the period of the testator’s death. It was suspended until the death of Elizabeth, the previous tenant for life. In Coke v. Coke,2 Vern. 545, the general principal is laid down. It is one of the oldest cases. *il Ml the children” meant such as were born at the death of the testator. So also in Stapleton v. Palmer, 4 Bro. C. C. 490. 1 P. Wins. 196. To a younger child or children, at twenty-one, vested in those in esse, at the death of the testator, Horsly i>. Chaloner, 2 Ves. Sen. 83, which case is referred to as authority in Devisme v. Mello, 1 Bro. C. C. 540, a leading case. Chaloner and Horsly is precisely like the present case. In that will too there was a remainder over, which was relied on in that case. There the period of twenty-one years was mentioned, and, notwithstanding, the court held none could take but those in esse at the death of the testator. But here this testator fixes no period. It is only to be inferred. 14 Yes. 576. Where property vests in interest, and the possession is postponed, those only take when it vests an interest. In Singleton v. Singleton, 1 Bro. 541, in the note, a legacy to “every th*e child or children,” — none were allowed to take that were not in esse at the death of the testator. In Whitbread v. St. John, 10 Yes. 152, the words were “born or to be born,” none born after the first arriving at twenty-one, that being the time they were to take, were admitted. So in Prescott v. Long, 2 Ves. Jun. 690. In Isaacs v. Isaacs, Amb. 348, the testator, living in the East Indies, gave to such children as his niece had in England, to be divided between them at twenty, and if his niece had no children, it was to go to her husband ; yet, all the children not born at the death of the testator were excluded, though the testator was at a great distance, and did not know the number of the children. Ml and every of the children, was held to vest only in thos'e born at the death of the testator. Heathe v. Heathe, 2 Atk. Rep. 122. The defendants here first assume that the period of distribution is postponed, and then argue that the rights do not vest till then. A legacy given in prsesenti, solvendum in futuro, vests nevertheless in prsesenti. This is not *a gift in futuro. This is a devise of real property. It cannot be said of it, that it is given in prsesenti solvendum in futuro. 
      The court is called upon to presume a contingency of the real estate until it vests. But this cannot be done of real property. The rule as to personal property was introduced by the ecclesiastical courts from the civil law. But they cannot apply it to real property in contradistinction to the common law. The exceptions to the general rule are in cases of a trustee to support the estate till some future period, or where a life estate is first carved out, or where no children are in being at the death of the testator. All the cases of these exceptions are collected in 2 Fonbl. 375, note. Heathe v. Heathe, 2 Atk. Rep. 122, (Edit Saund.) 1 Roper on Legacies, 71.
    The next question is as to the method of computing interest.
    The argument upon that question will be put in such a shape as not to conflict with decided cases. It will be argued that the interest vested at the testator’s death, but that it would open and let in others. If so, the shares of those born at the testator’s death have a different rate of interest from the others, should they be admitted, as was decided in Hodges v. Isaac, Ambl. 348. The elder children are entitled to their share from the testator’s death, with interest on their shares till the birth of the others; and the English courts give interest with annual rests against an executor, who should have put the fund out to interest; and the interest again should be put out. 4 Bro. 359. Raphael v. Boehm, 11 Yes. 108. In the latter case the interest was calculated with semi-annual rests. It is necessary that some fixed rule should be adopted in this State; for it is literally better to be executor than legatee, and it is, as Lord Coke has said, “giving the iamb to the wolf.” It became so notorious, that the late act renders t^e commissioners and even the chancellors *!iable if guardians and trustees are not called to account every year. It is absolutely necessary that some severe rule should be adopted by the court of chancery to prevent these frauds of executors. They must be compelled to put the profits out at interest; or be made to pay interest with annual rests, if they have received profits, or might have made them by a proper use of the estate. In this case the executor has kept no accounts. He is answerable for not keeping them. That which he had now rendered for the occasion was got up fraudulently. The order made by Chancellor DeSatjssure, granting an annuity to Dr. Myers, &c., was upon a discussion and review of the accounts, and that order will satisfy this court that the account is fraudulent. The executor refused to discover, and exceptions were taken and decided against him. He has denied that he ever made any purchases, and refused to disclose his profits: which is the only way to avoid paying compound interest. The executor has been guilty of every sort of evasion to avoid it. A trustee is not allowed to make a profit for himself, and if he make a profit and will not disclose it and account for it, he is chargeable with compound interest. Schieffelin v. Stewart, 1 Johns. Cha.-Rep. 620. Bowles v. Drayton, 1 Desaus. Rep. 496. If a person confounds his property with another’s, he loses his own. Hart v. Ten Eyck, 2 Johns. Cha. Ca. 108. Lupton v. White, 15 Yes. 432. The executor is bound to use his industry and care, and is paid for it by his commissions. Here there was nothing more required. Admitting that he was worth half as much as his father, and their estates have been confounded, the law will at least give the legatees and devisees one-half of his present estate, including that of the testator. But it is a great question, whether the defendant was not insolvent at the death of the testator. Compound interest, it is believed, would be less than the true amount of profits.
    *As to the lot in Columbia, it was evident the testator intended to exclude the defendant in favor of his children. The lot being regarded as worth nothing, the testator supposed it would pass with the rest of his estate.
    W. Thompson, for the executor.
    The defendant, David Myers, not only claims the estate for himself, but for his children. The first view that will be presented is, that if the benefit under the will was to take effect at the death of the testator, the will was void, because there were not persons at that time existing capable of taking under the different provisions of the will. The testator says, “if more than two daughters;” and nothing in the will shews what the disposition would have been if he had known there would be but one daughter. The will is therefore void for the want of a devisee. Suppose the testator had left only a daughter, could the will have had any operation ? There was no such case contemplated. Unless all the persons contemplated by the testator be living, the will is void. The presumption is, that, unless the particular state of events happened as he had anticipated, he intended to die intestate. If there are but two sons to take, how will they take under this will? Suppose there had been but one daughter and one son, would she have taken a third ? The will evidently contemplates the existence of two daughters, Powell on Devises, 411. In Richardson on Wills, 155, 103, the word issue is held to be so general, that it being difficult to say whether it meant children or grand-children, the heir wras let in. Richardson on Wills, 100. A mistake cannot be rectified. 1 Yes. 302, there being nothing to shew what the intention would have been, 2 Eq. Ca. Ab. 342. Whenever the will is doubtful, the heirs at law, in this country, should be more favored than in England, as all the children inherit under one *statute of distributions. Supposing this position to be wrong, r*2gg the question will be then considered in relation to the vesting of *- the right in the lands. Does the interest vest immediately upon the death of the testator? If not, it remained in the heir at law, and the devise is void.
    As to the question relative to the interest of the children, it has been said that the rule laid down in Heathe v. ITealhe is a rule of law, and not of construction. The distinction is incorrect. It is always a question of intention, and of course one of construction. It is not like the case of a question of remoteness, which is one of law, and not of construction ; for if it be too remote it is against law, Wilde’s case, 4th Reports, 16. In Congreve v. Congreve it is said, that Ellison v. Airey puts the case upon the contingency, whether they should be born before the period of paying over to the oldest at his arriving at twenty-one. In Stanley v. Baker, Moore, 220, the intention, though not very plain, was held to comprehend future children. In Devisme v. Mello, the words, it is said, must have their whole effect, and must comprehend as many as possible. The gift comprehends all who are in esse before the gift takes effect in all its consequences. Andrews v. Partington says, when a precise time of payment is fixed, all can come in that are born before that time. In Norris v. Mills, all were included on the ground that there was a limitation over, and the testator cou Id not have intended it to go over until all the issue failed, thereby comprehending all the possible children.
    The rule is said to comprehend all in esse before the necessity of a division. This rule prevents all the mischief spoken of. No mischief can result by delaying thus long. In Middleton v. Messenger, the interest, though vested at the death of the testator, was extended to those born after. In Whitbread v. St. John, a period was fixed for the division. There must be a period *fixed for division, to exclude any born afterwards, Leake v. Robinson, 2 Meriv. Rep. 863. Shepperd v. Ingram, Amb. 444. The testator in his will looked forward to considerable lapse of time; but he was ill at the time, and must have contemplated dying very soon, and that his son’s family therefore would have changed after his death. Besides, the legacy to Mrs. Dutilljr shews clearly that he looked to some length of time after the period of his death for distribution. The testator also contemplates the total dissolution of issue of David Myers in the subsequent part of the will, and could not mean that the property should go over upon the death of these three children to the exclusion of others that might be born afterwards. The will says the estate is in the end for the defendant’s children. Suppose the children born before the testator’s death had died before their becoming twenty-one, what would become of the property? Would the other children take it according to this construction? No! The limitation to Conrado Myers’s children is not too remote, and they would have come in. The legacies would have vested upon the death of the testator, if interest had been given, but not in this case where only allowance and maintenance is given. This case was important, as it was the first of the kind that had come up in this country. It was therefore of some weight, whether the reason of the English rule would apply; for under our act of distribution the inclination of the court should always be to include all the children who would come in under the statute. In this case a guardian is appointed over the property to provide for the education of the children, and therefore the testator did intend to postpone the vesting until they became twenty-one, the|period when the guardianship would expire.
    As to charging the executor with annual rests, in the case of Raphael v. Bcehm, 13 Ves. 407, the will expressly ordered the fund to be put out on interest. He cited *Black v. Blakely, decided in this court at jtg jast session, {ante, page 1.) As to Chancellor De-Saussure’s order, it can have no weight with this court, as there had not been an account before the master.
    As to the lot in Columbia which is said to pass by implication, such implication must be necessary and inevitable. All that is given in the will is most specifically described, which precludes the possibility of such a presumption.
    M’Cord, for the complainant, and for Clendenin and wife.
    Where the words are not clear, none other than a necessary implication can prevail. Upton v. Ferrers, 5 Ves. 801. “Clear words in the operative clause should not be affected by ambiguous words used in other parts.” Orford v. Churchill, 3 Ves. & Beames, 67. Where there are any persons to answer the description, no others can be let in; but where there is a total want of persons properly answering the description, others who do not so completely answer it may be let in, if, as soon as one can take, all must take or be excluded. The vesting cannot be suspended. Walker v. Shore, 15 Yes. 124. If John Myers had been twenty-one when the testator died, could he not have demanded his share? Nothing but infancy delayed him. If all possible children are comprehended, the oldest son might die before the father, without receiving one cent even to pay his debts. He might starve while the executor has the estate. Keeping the accounts open to an indefinite period would involve the courts in great difficulties in adjusting the various rights which might arise. No case can be found where children born after the death of the testator were admitted, where there was not some future period fixed for their taking; or some trust established to postpone the taking ; or an intervening life estate, where future children alone are intended to be provided for; or * a provision to survivors, to tie up the estate to children alone, to prevent the father’s coming in, or the next of kin, in case one dies before the period of distribution, for the share of one so dying, or where future children are expressly provided for. The real and personal estate must vest at the same time. If the real estate does not vest at the testator’s death, is it in abeyance? Not to the heir, for he is excluded with a shilling. Madison v. Andrew, I Ves. 57, and Ellison v. Airey, 1 Ves. Ill, are the two strongest cases in favor of the executor, D. Myers. But these two cases, as well as all others in the books, fall under one or other of the classes of cases which have been mentioned. Madison v. Andrew is badly reported as to this point. The opinion of the chancellor is stated in one sentence. But the case was a trust to executors to pay three hundred pounds, at twenty-one or marriage, to any child of his sister Sarah, who, the testator knew, had but one, and to the survivors. And it did not appear that an j children were born after the first became twenty-one, as it is likely the question was made then, and all born up to that time were admitted; the distribution or vesting, or in other words, the execution of the trust being delayed till then. No one could take sooner. No partial distribution could have been before that time. It is evident that these were the grounds on which that case was decided, because the same reasons were assigned by the same chancellor in Ellison v. Airey, decided but one year afterwards, in the report of which the reasons are fully stated. It was a contingency till twenty-one. 2 Mad. Cha. 14. In Wilmotu. Wilmot, 8 Ves. 10, it is said that “surviving” or “survivors” meant “others,” and this explains still further the construction in Madison v. Andrew. And in Hodges v. Isaac, Amb. 349, Madison v. Andrew is referred to, and the reasons of that decision are there stated, as they are conjectured to be, for the purposes of *this argument. r*230 I will confine myself exclusively to the question, who took un- *- der the will. That none others took but those in esse at the death of the testator, (there being none in ventre sa mere,) there will be an endeavor made to show, by a classification of all the cases under the heads heretofore stated.
    The first class is, where the gift or legacy has no time fixed or expressed for its distribution or vesting. Under this class the present case falls. The trifling circumstances in the will, which have been seized upon, are not such as to take the case out of this general and leading rule. The other classes of cases form the exceptions to this rule. In Heathe v. Heathe, 2 Atk. 122, the legacy was confined to children in esse, because it might as well be extended to children bom twenty years afterwards, and that, the court said, would produce great coufusion in unravelling accounts. In Hutchinson v. Manningham, 4 Bro. C. C. 490, it was decided that, though the testator did not intend the legacies to vest immediately, yet, having fixed no time, they vested at the death of the testator. Would it be required of the complainant to wait until the death of his father, as it was impossible to fix upon a period at which he might not have another child, as in Godfrey v. Davis, (i Yes. 49, where no child existed at the time, anti, therefore, it was contended that a child in future was embraced.as none other could be meant? The chancellor said, “all the lumps must be burning at the same time.” The arguments of Messrs. Alexander and Cox in that case contain a correct view of all the cases. Roberts v. Highman, note to 1 Bro. C. C. 532, is a case like the present. In Singleton v. Singleton, cited in 1 Bro. C. C. 541, the decree is in all respects conclusive upon this case. The devise was to u every child, or children if more than one, and in case failure of issue of all such children, or if but one such child and in default of such issue, he gave it over. The ^chancellor said, there was no time fixed, and that none could come in who were not born at the death of the testator. In Vi-ner v. Francis, 2 Bro. C. C. 658, the death of the testator was held the time for vesting, though the legacy was given to be divided in the lifetime of his brother, the father of the children, or at his death, none but those in esse at the testator’s death took. The same case is reported in 2 Cox, 190. The devise was to the father for the children, which made it a stronger case. In Horsly v. Chaloner, 2 Ves. Sen. 83, the gift being immediately to be paid to the children at twenty-one, a child born after the death of the testator was excluded. This last is a strong case. The gift was to the younger child, if more than one, and if any die before twenty-one, to the survivor and for want of such child, then over. This case was decided on the authority of Madison v. Andrew, and serves as a comment on that case. It would seem, from the manner in wliich that case is spoken of, that it was not thought to be correctly reported; for it is said in this case, that the children took at the death of the testator to avoid the inconvenience ofkeeping children out of the provision expressly appointed to be paid at twenty-one. In Baldwin v. Karver, 1 Cowp.312, Lord Mansfield said, the great point in all these cases was the time when the legacy is to vest, for that is the period when the testator looks forward for the property to pass from one channel into another. The court there refers to Ellison v. Airey as a leading case, and says that if the gift be immediate, none but those in esse could take at the testator’s death. All are let inhere at the expiration of the intermediate estates. In Northy v. Strange, 1 P. Wms. 340, even a child in ventre sa mere was not let in. A will is not to be construed as if the testator was speaking in his last breath. In the case before the court the testator calculated on his son’s having more chi 1-dren before his dying, and the possibility of those *livjng dying before him, as in Thornhill v. Thornhill, 3 Mad. Rep. 377. In Freemantle v. Freemantle, 1 Cox’s Ca. 248, which is an important and pointed case, South Sea annuities were given to trustees in trust for the testator’s great grand-children. The interest in the meantime was given to Frances, their mother, for their support and education, andón each attaining the age of twenty-one to pay him or her their share. A child in ventre sa mere at the death of the testator was excluded, as well as another child born subsequent to the death of the testator. In Jee v. Audley, 1 Cox’s Ca. 324, the distinction is well drawn by the chancellor, between cases where the devise is immediate and where there is an interest in remainder. In the former case, only the children living at the testator’s death take; in the latter, those born before the interest vests in possession. He also cited Burke v. Wilder, 1 M’Cord’s Cha. Rep. 551.
    Secondly. It is proposed to review the cases accompanied with a power of appointment, a trust to pay, and a contingency to happen at some period future to the death of the testator.
    
    In Devisme v. Mello, 1 Bro. C. C. 538, it is said nothing will postpone the vesting but a prior interest, a power of appointment, or a contingency. A trust, with a power to pay at some future period, might have been added. It is also said it will vest, unless something in the will prohibits the gift from taking effect, “ immediately in all its consequences at the death of the testator.” Now, what is there in Jacob Myers’ will to prohibit the gift from taking effect as to those in esse at his death? No act of the executor is necessary to effectuate or complete their rights. No future period is fixed. It is indefinite, and, therefore, void, if not to take effect at the death of the testator; for no time, act, or circumstance, after the death of the testator, is necessary to complete the rights of those in esse. In 1 Plow. 345, it *is said, the devise is void if the devisee be not ine.sse, with capacity to take, atthe same time when it ought to vest. Otherwise the fee would be in abeyance. There is no trust to support it. Jernynham v. Wells, 2 Ves. Sen. 198, was a trust of a term, and was for children to be begotten and a future time of payment directed. There it was continued until the time for payment. In Coleman v. Seymour, 1 Ves. 209, the legacy was to younger children. None but those that were younger children when the testator died, were admitted, though younger children were born after his death; and this, although the wife had a power of appointment, which would seem to imply the intention of extending the period during the life of the person having the power, which is generally executed by will. Besides the word survivors was used, which indicated all the children. Congreve v. Congreve, 1 Bro. C. C. 580, was of a trust to pay at twenty-one. Graves v. Boyle, 1 Atk. 509. A mere trust, without a power of appointment, or some estate carved out of it for a particular purpose of the trust, will not postpone the vesting; as in Roberts v. Highman, 1 Bro. C. C. 532, where a devise to trustees to sell and pay debts, and the overplus to his daughter’s children was held not to include any child born after the testator’s death. So ordering money to be paid “when received,” “when got in,” “when recovered,” “ when laid out.” Stapleton v. Palmer, 4 Bro. C. C. 493, (Eden’s ed.) Hambling v. Lyster, 13 Ves. 336. Sitwell v. Bernard, 6 Ves. 520. Steuart v. Bruere, cited by Eden. Gaskill v. Harman, 11 Ves. 484. Wood v. Penoyre, 13 Ves. 325.
    In Singleton v. Gilbert, 1 Cox’s Ca. 68, the devise was to trustees for a term of 500 years, for the use of two persons for life, and after their deaths “to all and every the child, and children of her brother if more than one, to take, &c., at twenty-one, the term to be for their ^benefit on failure of such issue to Richard, her brother. The chancellor “ saw no circumstances to take this case out of the general rule.” It is an estate given directly, although given charged with the terms, and therefore I cannot consider the after-born as entitled.”
    Thirdly. The cases where future children were expressly provided for by the word “survivors,” &c., formed but few cases of exception to the general rule. In Hodges v. Isaac, Amb. 348, is a strong case. The testator being in the East Indies, and his friend in England, gave legacies to be paid in bank for the children of his niece, to defray their learning, and at tivenly to be divided equally between them, and if she had only one child, it should have the whole, but if his niece had no children, it was to go to her husband. The legacies were held to vest at the death of the testator, and subsequent children were excluded. Here was a devise over on failure of issue, and the testator did not know that there were any. The case cannot be distinguished from the present, except that it was somewhat stronger from the fact of the legacies in the former case being to be paid at twenty, which indicated a postponement till that time. Madison v. Andrew was a trust, payable at twenty-one or marriage, and was to be paid to children, or any child, when the testator knew there was but one and was to go to the survivors of them, and upon failure of such, over. It may, therefore, be ranked under this head. In Spencer v. Bullock, 2 Ves. Jun. 687, the devise was to Jane for life, and after her death to her child and children; if more than one, share and share alike. Provided his son or daughter died without any lawful issue, he gave their share to the survivors. Those born up to the death of the daughter were let in. The principle tvas there laid dowm, that there was a difference between a direct gift and a trust, where the onty thing constituting a gift is the distribution directed. Ellison v. Airey *comes under this head 0f cases. It is like that of Madison v. Andrew. Besides, it would have vested in that case at the death of the testator, but for life estate given to the parents of the children. Staughton v. Harrison, 2 Atk. 329.
    Fourthly. Cases wherein the legacy is payable at twenty-one, or at some other period, or marriage.
    
    In these cases all are admitted that are born before the oldest arrives at twenty-one, but none born after that period, as in Hughes v. Hughes, 3 Bro. C. C. 352, 435. S. C. 14 Ves. 246. Andrews v. Par-tington, 3 Bro. C. C. 401. Pulford v. Hunter, 3 Bro. C. C. 416. So in Gilbert v. Boorman, 11 Ves. 238, though the legacy was for “all the other children hereafter to be born.” It was also said in that case, that where a partial distinction is to take place, future children cannot come in. Gilmore v. Severn, 1 Bro. C. C. 582. Congreve v. Congreve, 1 Bro. C. C. 530. Prescott v. Long, 2 Ves. Jun. 690. Horte v. Pratt, 3 Ves. 730. Barrington v. Tristram, 6 Ves. 344. Whitbread v. St. John, 10 Ves. 152. Manning v. Hubert, Amb. 575. In Stapleton v. Palmer, 4 Bro. C. C. 490, although the legacy was to all his sister’s children alive at the division, which he directed to be made in three years, it was held the legacy vested at the testator’s death, and none were allowed to come in not then in esse. In Ringrove v. Ringrove, 1 Cox, 384, the legacies were to children when they came of age, yet none were admitted but those in esse when the testator died. The argument, then, in this case, that the gift did not vest till the oldest son came of age, would apply to all cases; for in all cases they are minors. But in Davids on v. Dallas, 14 Yes. 9, 576, which was the case of a legacy to children, and if either of them die before twenty-one, his share to go to the “survivors,” it was held the legacy was immediate, and none but those in esse when the testator* died were let in, notwithsanding the word “ survivors,” as to which term the chancellor said, there liad been a forced construction adopted.
    Fifthly. Cases of gifts to children after a gift to a previous tenant for life. Those only take who are in being at the death of the tenant for life. Walkerv. Shore, 15 Ves. 123. Congreve v. Congreve, 1 Bro. C. C. 530, which in Hughes v. Hughes is said by the chancellor to be a strained case. Bartlett v. Hollister, Amb. 334, wherein the master of the rolls refers to the case of Madison v. Andrew, as a similar case. Devisme v. Mello, 1 Bro. C. C. 538. Marlborough v. Go-dolphin, 2 Yes. Sen. 61. Harding v. Glin, 1 Atk. 470. Attorney General v. Crispin, 1 Bro. C. C. 386. Malim v. Baker, 3 Ves. 150. Taylor v. Langford, 3 Ves. 119. Ayton v. Ayton was first heard by the master of the rolls, whose decision is reported, 1 Bro. C. C. 542, and reheard by the lord chancellor. The latter decision by the lord chancellor is now referred to, and will be found in 1 Cox’s Ca. 326. Paul v. Compton, 8 Ves. 375, is a very strong case. Middleton v. Messenger is a strong case and affords a complete answer to the argument derived from the legacy to Mrs. Dutilly. Annuities continuing after the life estate were held not sufficient to suspend the vesting of the estate, and none not born during the life estate were let in. The annuities falling in afterwards were divided among those who had received the rest of the estate. So in Godfrey v. Davis, 6 Ves. 42, a case likewise of annuities. So in Will v. Chapman, 3 Bro. C. C. 391, the dropping in of annuities at different periods was held to have no effect upon the bulk of the property devised. The case of Jee v. Audley, 1 Cox’s Ca. 323, is a very strong case, and is a complete an swer to the argument derived from the words in the will in relation to the dissolution *of David Myers’ issue. Haughton v. Harrison, 2 Atk. 328, is a case like Ellison v. Airey.
    As to the cases relied on by the opposite counsel, Shepperdtt. Ingram is not a case in this connection. Mills v. Norris is a case like Shepperd v. Ingram. They were both questions of interest on shares falling in at different times. So Difflis v. Goldschmidt, 19 Ves. 566, is not a case like this. It is on a different subject. It was only a question with the executor. The mother there too had a life estate, and all the children could take during that time. Leake v. Robinson, 2 Meriv. Rep. 363, was a devise to trustees to pay at twenty-five.
    O’Neall, for the executor.
    The question is, whether the will does not closely show an intention to comprehend all the children. As to the rules of construction, he cited 4 Ves. 312, 329. 1 Ves. 270. After the use of a general term, a term still more general will extend it. Suppose the word children stricken out, would not the word issue give it to all the children ? The issue could not be known till David Myers’ death, and at that period those who answered the description may take. It is the duty of the court to comprehend as many as possible. 1 Roper on Legacies, 107. The word issue would be a word of purchase. 2 Yes. Sen. 195. Hanbury v. Hanbury, 3 Ves. 257. Merryman v. Merryman, 5 Munf. 440. The limitation over is to take effect after a total failure of issue, and by implication would give a share to all the children. The property could not go over till David Myers’ death, and the death of his issue. The court must come to the conclusion that the testator meant to divide the property between two grand-sons and one grand-daughter, before they can give it to them to the exclusion of others. But the will shows no such intent’on- The testator provided for a *state of things entirely different from that now presented to the court by the complainant. Collet v. Laurence was relied on by the complainant’s counsel to show, that the testator after giving cannot modify the legacy in a subsequent clause. The case does not support that position. The last clause is regarded always as most obligatory in a will ; but in this case the clauses are perfectly consistent. It is a mere amplification of the intention. The clause limiting it over on a total failure of issue is parallel with Madison v. Andrew. The court there, because it was limited over on a failure of issue, let in all the children. The only difference is a clause of survivorship in it, which can make no difference in the construction. The management enjoined upon the executor is prospective, “ which in the end,” says the will, was for the benefit of his children. This must have been intended a management until his death; that during his life he should keep the estate together, and after the executor’s death to be divided among his children.
    It has been contended on the other side that David Myers was insolvent when his father died. If so why should the grandfather not provide for all his children, as he was young, and the probability was that he would have a large family ? In case David Myers lived until many or any of the children became of age, the court will give the profits and income of the property to those thus coming of age. There are the same reasons for the construction in marriage settlements as in wills. In Ellison v. Airey, it is said, slight circumstances will vary the construction. In Devismev. Mello, the devise was extended to ail children before distribution. Hutchinson v. Manningham. Tbellusson v. Woodford, 4 Ves. 336, 337. In Defflis v. Goldschmidt, I Meriv. 417, it is said, the intention not being to exclude any of his sister’s children,* they would all be let in, though it should be necessary to impound the whole estate ; and in this case they must all come in, though it impound the whole estate until the death of David Myers. Admit the intention to be doubtful. When is the time for distribution fixed by the will? If the time of the eldest child’s coming of age be the period, any might take before John Myers became twenty-one. If the argument was correct that the issue take, then it follows that each may come in for their share at their arriving at twenty-one. At law John Myers could not claim this property before twenty-one. His father had the custody of his person until twenty-one, and the guardianship over the property created by the will extended to the same period. 1 Ves. Sen, 89, 90. The devise is given for a particular purpose, and no arrangement could be made that would alter that purpose. The testator intended the profits to educate the children, and therefore the estate is to be kept together until the children became twenty-one.
    As to the bequest to Mrs. Dutilly. The negro given to her is not to go, as the counsel has contended, but the testator contemplated a division subsequent to that period, and spoke of that property forming a part of the partition to be made, and certainly at a period subsequent to her death, and it is immaterial whether the period of distribution be fixed at her death or the coming of age of John Myers, the oldest child. Wherever a legacy is given to a particular class of children, any coming within the description at the period of distribution, may take. In Congreve v. Congreve, all were permitted to come in that were born before the oldest became twenty-one. He cited also De-visme v. Mello, 1 Bro. C. C. 537. Hughes v. Hughes, 1 Bro. C. C. 352. The cases of gifts to a tenant for life with a remainder to children are exactly applicable to the legacy given to Mrs. Dutilly, and all the children born during her life *may take. In Viner v. Travers, 2 Bro. Cha. Rep. 658, chií-dren who died before the distribution were held not to be included. Barrington v. Tristram, 6 Ves. 345. Andrews v. Partington, 3 Bro. C. C. 60, 401. Bartlett v. Hollister, Amb. 334. The general rule is said to be an artificial one, and that the convenience of the court gave it importance. If there be no better reason for it, the sooner it is got rid of the better. A legacy may be said to vest, and yet open to let in subsequent legatees arriving at the period when they may take. It is a shifting use which is allowable. Attorney General v. Crispin, 1 Bro. C. C. 386. Singleton v. Gibbert, 2 Cox’s Ca. Crane v. Odie, 1 Ball & Beat. 459. 1 Cox, 72, 326. In Coleman v. Seymour, 2 Ves. Sen. it is said the circumstances, the particular words, &c., should give construction to the will. If all were excluded but three, then the court should allow the expenses not only of education, but maintenance also. Hughes v. Hughes, 1 Bro. C. C. 387.
    As to allowing for the improvements, he contended, that the lands were much improved, and of course the executor should be allowed for it. The improvements are permanent, not only increasing the annual rents, but rendering the lands permanently more valuable.
    If Myers applied the funds of the estate to buy property, it can only be decreed a resulting trust, which cannot be raised unless clearly proved. 2 Fonbl. 118,119. The rate of hire, with interest compounded, would amount to an incalculable sum. It is out of all reason. One negro might become §9,000. The trust in this case did not require an investment. In Raphael v. Boehm, 13 Ves. 407, the will directed the fund to be put out for accumulation. Besides then the testator could have put the fund out, but how could he do it here ? The case of Crenshaw v. M’Morris, Harper’s *Eq. Rep. 224, directed the fund to be and the interest to be collected annually. The case of Bowles v. Drayton, 1 Desaus. Rep. 489, was the case of an annuity for maintenance, and the maintenance having been withheld, the court granted an account against the executor with annual rests. It is impracticable, in most parts of this State, to effect loans or to invest funds in any way that wilJ produce interest, payable annually. No honest man would undertake a trust if such a doctrine could he supported.
    As to the lot in Columbia, it must have been forgotten, and the legacy of one shilling and no more cannot exclude David Myers from property not given in the will. It was only inserted to exclude him, from some notion of necessity, from the lands devised to his children. Snelgrove v. Snelgrove, 4 Desaus. Rep. 274. As to the case of Va-chell v. Breton, 5 Bro. Par. Rep. 51, (Edit. Toml.) two of the children, to whose legacies the words “ and no more ” were attached, were allowed to take. The others were excluded for illegitimacy.
    Gregg, for the executor.
    Did the testator intend to confine his bounty to the children born at the time of his death? It is not pretended that the testator could not, by express words, have extended it to the after-born. It has now become a question of construction, whether he has not done so. This intention is to be collected from the circumstances and from the whole context of the will. The state of the testator’s family will be looked into. 8 Com. Dig. 422, Devise 9, sect. 17. 2 Rob. on Wills, 27. Rob. on Frauds, 28. Goodinge v. Good-inge, 1 Ball & Beat. 481. Powell on Devises, 508. Cole v. Rawlin-son, 1 Salk. 234. Fonnereau v. Poyntz, 1 Bro. C. C. 472, and Powell’s observations on that case, Pow. Dev. 513, 519. Selwood v. Mildmay, 3 Ves. 306. Lyton v. Lyton, 4 Bro. *C. C. 459. 2 Ev. Poth, 212. 3 Hen. & Munf. Rep. 283. 10 Mass. Rep. 303. Cowp. 312. 1 Wash. 55. Haughton v. Harrison, 2 Atk. Rep. 329. This rule is stronger when the testator himself refers to the state of the family. The testator knowing that he had but two grandchildren, and his son’s wife being pregnant, yet makes provision for more than four children. He could not have expected three children at a birth. He speaks of his “grand-claughters inheriting,” “if there be more than two or more grandsons’’ He could not have contemplated more than one birth before his death, because he declares in the will that he expected soon to die. The limitation over to the children of Conrade Myers, upon the total dissolution of David Myers’ issue, showed clearly that the testator meant all children born or to be born. Madison v. Andrew. He declares the property to be for the sole benefit in the end of David Myers’ children. This certainly showed an intention to comprehend all the children to the end. There could have been no special attachment to the two children born at the making of the will. It must have been for the whole family. Will it violate any principle of law to comprehend all the children ? It is a leading rule that if the period of distribution is fixed at some time future to the death of the testator, that all born by that time will be admitted. 1 Roper on Leg. 71. 2 Fonbl. 348, note. Devisme v. Mello, 1 Bro. C. C. 537. Viner v. Francis, 2 Bro. C. C. 658. S. C. 2 Cox, 191. Congreve v. Congreve, 1 Bro. C. C. 529. Gillmore v. Severn, 1 Bro. C. C. 582. Godfrey v. Davis, 6 Ves. 49. Walker v. Shore, 15 Ves. 135. Andrews v. Partington, 3 Bro. C. C. 401, and note. Ellison v. Airey, 1 Ves. Sen. 111. Barrington v. Tristram, 6 Ves. 345. It has been lamented that the construction had not been established upon the footing of marriage settlements, by comprehending all children. Andrews v. Parting-ton.* Hill v. Chapman, 1 Ves. Jun. 407. Ellison v. Airey. The rule excluding all children after the death of the testator is arbitrary, artificial and unsatisfactory, and the court will go as far as it can to comprehend all children. Andrews v. Partington. Hill v. Chapman. Leake v. Robinson, 2 Meriv. 312. Hoste v. Pratt, 3 Ves. 733. The ruléis not applied to wills made by parents to their children. 1 Rep. Leg. 90. Matchwick v. Cock, 2 Ves. 609. The testator in this case stands as a parent to his grand-children. David Myers was the only child he had. The time of distribution means the time of vesting in possession. 1 Bro. 537, note. The distribution could not take place at the death of the testator, if contrary to his intention, which was evident from the provision for more than four children, there being but three. So the limitation over on failure of issue to Conrad’s children. So the direction in relation to the girl given to Mrs. Dutiiiy, “to go in division with his other negroes” to his grand-children, showed he did not intend the distribution to take place at his death. So the declaration, that the property was for the sole benefit of his grand-children in the end. So the directions to have the children well educated out of the profits of the estate. The case of Madison v. Andrew is like this, and the lord chancellor let in after-born children, because the testator gave to children, knowing there was but one child, and limited the property over on failure of issue. Haughton v. Harrison, 2 Atk. 329. As it is manifest the testator did not intend the distribution to take place at his death, nothing but a technical rule of law will confine it to the time that John Myers, the eldest child, arrives at twenty-one. Andrews v. Partington. Prescott v. Long, 2 Ves. Jun. 692. Hoste v. Pratt. Gilbert v. Boorman. Defilis v. Goldschmidt, 19 Ves. 57Ü. A legacy to A. for life, and to her children at her death, *goes to all the children as they come r.. in esse, though liable to be divested to let in others. 2 Madd. Cha. L 4 15. Spencer v. Bullock, 2 Ves. Jun. 687. Walker v. Shore. Skey v. Barnes, 3 Meriv. Rep. 343. It is not the vesting in interest, but the period of vesting in possession or time of distribution which fixes the time after which after-born children are excluded. Unless the devise is to take effect immediately in all its consequences after-born are admitted.
    
      As to maintenance, if the estate belonged only to the three children born in the testator’s lifetime, yet the executor should be allowed for maintaining them. 1 Bro. C. C. 387, note. Hoste v. Pratt. The same rule would apply if the property belonged to all the children.
    
      As to improvements in the land. Trustees are always allowed for necessary and beneficial improvements. Green v. Winter, l Johns. Cha. Rep. 39. Fountain v. Pellett, 1 Ves. Jun. 337. The improvements were of that character here. The management was left to the executor, and with no further directions as to the profits than in relation to the education. The expenditures for improvements were made entirely out of the profits.
    David Myers should certainly be allowed for his services, if it be decreed that the purchases made since the death of the testator belong to his estate.
    
      Jis to the question of interest. Formerly no interest was allowed against an executor. Scheiffelin v. Stewart, 1 Johns. Cha. Rep. 624. Darrell v. Eden, 3 Desaus. Rep. 242. Simple interest is now only allowed. 1 Johns. Cha. Rep. 510. Manning v. Manning, 1 Johns. Cha. Rep. 535. Darrell v. Eden. Benson v. Bruce, 4 Desaus. Rep. 463. Walker v. Bynum, 4 Desaus. Rep. 556. Jenkins v. Fichling, 4 Desaus. Rep. 369. Compound interest has never been allowed but in cases of gross breaches of trust, and of detaining the funds of *the estate improperly. Scheiffelin v. Stewart. Piety v. Staee, 4 Ves. 620. Pocock v. Reddington, 5 Ves. 794. Raphael v. Boehm, 11 Ves. 92. Dornford v. Dornford, 12 Ves. 127. The executor here had neither abused his trust, nor improperly detained the funds.
    The answer avers that none of David Myers’ purchases were made with the proceeds of the estate of Jacob Myers, nor for that estate. His answer is not contradicted, and therefore is conclusive on the question. According to the answer, and the proof, David Myers owned as much property at the death of the father, as the father did. The complainant claims the purchases and compound interest besides. How can he claim both ? The court can do no more than to require compound interest on the rents and profits. It will neither compel the defendant to account for profits, nor deprive him of Iris purchases. Scheiffelin v. Stewart. Raphael v. Bcehni. It is immaterial to the children whether the interest be paid by David Myers or by a stranger. The funds could not have been made to yield more. He was not authorized by the will to invest the proceeds of the property. He has not confounded the capital of the two estates. Was it possible to have made more than the rents of the lands, the hire of the negroes, and the interest thereon ? As he has committed no breach of trust, he cannot be made to account for more. To raise a resulting trust, the complainant must not only show, that the purchases were made with the funds of the estate, but for the estate. Perry v. Phillips, 4 Ves. 108. 17 Ves. 173. Lench v. Lench, lOVes. 511. In all cases where
    a resulting trust has been declared, there were directions to invest the funds. There were none here.
    
      As to the lot in Columbia. The lands devised, being specific, pre-eluded all presumption that this lot *was intended also to be in-eluded. The construction is favorable to the heir at law.
    The defendant is entitled to have refunded to him the expense of raising, &c., the younger negroes, if he be made to pay more hire than according to the ten pound act. It is also equally reasonable that he should be allowed for advancements to the three elder children.
    Harper, in reply.
    In relation to the matter of advancement it will not do for the court to decide upon it, as the questions have not been heretofore made and there has been no reference on the subject. The advancements are said to be gifts. So also the question as to improvements is prematurely raised. It cannot be settled before the accounts are finally taken. In Briggs v. Bolton, the defendant was not allowed for improvements. That case was decided by the late court of equity. A trustee is not allowed for improvements, unless in particular cases; and no evidence having been taken on this subject the question is premature. As to the lot in Columbia, the latter clause in the will, “I leave a clear estate for my grand-children,” gives them afee in this lot. The case from Plowden was that of a devise to the heir at law after the death of the wife : it gave the wife a life estate. There the implication was necessary, as no one could take in the meantime. But here David Myers is excluded expressly: therefore in that respect it is stronger than the case in Plowden of the estate by implication.
    The general principle on which the accounts are to be made up will produce questions of more importance. The defendant has used the property as his own, confounded it with his own; kept no account; and now lays claim to it. In Pocock v. Reddington, 5 Yes. 194, the executor vested the stock in his own name, but sold it and accounted for it with the dividends; but it was held *a fraud, and if he had made more than interest he should be charged that, for he should not have risked the fund by keeping it. Roach v. Hart, 7 Ves. 57, decides that the executor should pay the interest he makes, and if he does not vest it, the presumption is that he made legal interest. Ex parte Shakeshaft, 3 Bro. C. C. 198, decides that the fund must be replaced. Massey v. Davis, 2 Yes. Jun. 317, that no profits can be retained made by a breach of trusts. The complainant is entitled to the profits the executor made if they can be ascertained, and it is the fault of the trustee that the profits are not known. But if the fund can be traced to property in the hands of the executor, the title to that property will be good to the cestui que trust. The right will not be by way of resulting trust, but the cestui que trust will be entitled to his share of the profits, and if the executor has confounded the funds and profits, it is his fault, and equity gives the whole to the cestui que trusts, unless the trustee can point out his own. The defendant has said in his answer that he has confounded the estates ; for he took it as his own. The statement of the defendant must be false; for this estate was as large as his own, and consisted of equally valuable and excellent lands; and yet he tells the court, that although lie has made a large fortune with his half, yet this estate has made nothing. In Lupton v. White, 15 Ves. 402, the defendant was held to lose his property by mixing it with another’s, though he was not to blame himself, but his under lessee. That was a case of mines. So in Chedworth v. Edwards, 8 Ves. 45, the same principle as to confounding funds is laid down. Hart v. Ten Eyck, 2 Johns. Cha. Rep. 93. Upon whom should fall the burthen of separating this fund? Was it the fault of the infants? Whoever was in fault should take the burthen — such is the law — and if the rule be a hard one, it is the fault of the defendant for bringing himself within its application. Can the defendant not show what property *he has purchased with his own fund ? If not, how can the complainant shew it? The cases are col-Jected in 2 Madd. 115. In ail such cases the cestui que trust is entitled to compound interest. Schieffelin v. Stewart, 1 Johns. Cha. Rep. C24. Stoughton v. Lynch, 2 Johns. Cha. Rep. 209. Evertson v. Tappen, 5 Johns. Cha. Rep. 497, says the rule is made for cases where profits are made, and the trustee will not disclose ; which is the present case. Brown v. Rickets, 4 Johns. Cha. Rep. 303. 4 Dow. Rep. The executor in England has some rights of Ins own as to the residue, but the provisions of our act, which constitutes him a trustee, entirely put it upon the footing of the executor in the case of Raphael v. Boehm, 11 Yes. 91. 13 Ves. 408. Interest with annual balance is to be the same as compound interest. But in Raphael v. Brehm it was granted with semi-annual rests.
    As to the main question, he laid down these positions :
    
      First. If there be a devise to children without a future period fixed, only those in esse at the death of the testator can take, however clear the intention of the testor may be to extend it to all the children ; except where there are no children at the death of the testator.
    
      Secondly. That if it was not a fixed rule, yet none but those at the death of the testator could take, unless it was impossible to put any other construction upon the words than by letting all in.
    
      Thirdly. That this was simply the giving to children without fixing any period of distribution.
    As to the first position, he was not aware that it was contested; but he would refer to that class of cases, Ellison v. Airey, and Devisme v. Mello. In Gilbert v. Bodman, a devise to one child by name, and to all the children hereafter to he born, being payable at twenty-one, none could take born after that period. The intention to provide for future children will not postpone the period for vesting. Whitbread v. St. 10 Yes. *52, was to the children born or hereafter to be born, as many as might be at twenty-one, yet none but those born at the oldest becoming twenty-one could take. In Ayton v. Ayton, 1 Cox, 326, the devise was to tenant for life, and to all the children of that marriage, which was plainly the intention, yet the court would not postpone the rights after the death of the tenant for life, and before an actual distribution. In Hoste v. Pratt, the devise was to trustees, which is material, and “to all and every the children,” yet it did not comprehend those born after the period of distribution. In Pulsfovd v. Hunter, 3 Bro. C. C. 401, the estate was to the daughter for life, and “to all the children begotten, or to be begotten,” and money legacies at twenty-one, yet none of those born after the eldest became twenty-one could take. Barrington v. Tristram, the devise was to “all and every the child or children,” which was not held to comprehend all the children. There were but two cases at all equivocal, Madison v. Andrew and Norris v. Mill. Godfrey v. Davis, 6 Ves. 43, was cited on the other side, but it seems to sum up the whole case in our favor. As soon as it vests, the parties who take must be in esse. Cook v. Cook, 2 Vern 545, had nothing to do with this case, except the dictum of the chancellor expressly in our favor, that a subsequent child could not take. Defllis v. Goldschmidt has been a good deal relied on. The children were let in there; but not on the principles contended for here. The principle expressed by the master of the rolls is in our favor; for he said, the reasons there did not apply in cases of distribution. In Leake v. Robinson, the legacies were payable at twenty-five, and all born before that period were let in of course. In Northey v. Strange, 1 P. Wms. 340, it is said none but those born at the making of the will were let in by the old rule. In Hughes v. Hughes, 1 Bro. C. C. 386, the rule of distribution was when the youngest* attained twenty-one; the others, being born after the death of the testator, and before the then youngest attained twenty-one, were let in.
    As to the second position. In Heathe v. Heathe, a life estate was given first to the wife, and after her death to all and every the children of that marriage, and yet none were suffered to come in after the death of the tenant for life. In Baldwin v. Karver, Lord Mansfield says the rule is correctly laid down in Ellison v. Airey, and that the. period was when the estate passed from one channel to another. It was some time before the rule was extended to let in any child after making the will, though born even before the death of the testator; the reason for confining it to the death of the testator is, that to extend it to the period of the father’s death would render the property valueless. In Horsly v. Chaloner, it is said, if the testator had been asked, if he intended all to come in, he would have said yes; but if asked whether he intended to postpone it till some were fifty, he would have said no. As to the policy of the rule, Lord Thurlow expressed a doubt, whether it should not be put upon the looting of marriage settlements; but would the court shut up the property without its making profits, or let each legatee come in as thy may arrive at twenty-one? To do the former would be in violation of all the cases, and would defeat the intention in favor of the eider children for others which may never be born. The older children may live and die in poverty, and in debt, for the purpose of accumulating an estate for them. Being entitled to the rents and profits is a vesting of the estate not only on interest but in possession. And the vesting in possession is merely the period of distribution. And suppose in the second place, that each child may be sufibred to come in and get their share of the rents and profits as they become twenty-one, how are such of the children to be controlled? The estate vests in no trustee,* and would the court say they could not enter and occupy ? Could their rights of occupancy and use be restrained in any way ? Because the executor is their father, are they to remain under his tutelage all their lives ? As executor he has nothing to do with the lands. In character of guardian to his minor children he might manage their estate as such, but now they are twenty-one, is he still to hold it as their trustee ? There is no mode prescribed how they are to receive the rents and profits. Will the court now appoint a trustee for the complainant against his will ? He has the right to manage for himself, and having that right the court can appoint no agent for him without his consent. The profits must accumulate, or the complainant be entitled to receive his share. Both are utterly impracticable. Can the court prevent a partition ? The children are absolute owners. That is admitted; and the only question made is that the others can come in. It has never been suggested that part owners cannot make partition and hold their lands in severalty. Can the court prevent it? Can the court prevent John Myers from selling his interest ? Lord Thurlow decided, that even in the case of a vested legacy, the court will not order security in favor of the remainder-man. How' will the court apply that rule to this case ? The whole estate might be destroyed before the objects of the testator’s bounty were let in by this implied trust for life in the executor. Where legacies are given payable at a future time, no rents and profits follow; but here the will gives immediately, and the executor is expressly excluded. At the period of distribution, when it is fixed, the legacy must vest. If no period is fixed by the will, it must vest upon the death of the testator. Suppose partition were now made, three of the children being twenty-one, and hereafter others are born, are they to sue those who llave taken in distribution, and have an unravelling of all the old accounts ? *Would not the court order bonds to account afterwards on such contingency? If so, would not the whole property be tied up subject daily to such new distributions and fresh arrangements and settlements ? But Lord Eldon says the rule is one of necessity, and must be confined to the testator’s death unless a future period is fixed. Rules, which seem at first to be harsh, when examined, often result in a conviction of their propriety and justness. Necessity requires it to be so, and this rule is one of that sort. No evil after all is likely ever to result, for it is often the case that the life estate is given to the father unless as in this case the father is opulent, and then the father may by will conveniently make an equality among his children by a proper distribution of his own property. To extend it to all the children in this case would be imposing a hardship ; for there could be little doubt the father would give the whole of his own estate to the rest of his children, which will be giving them two-thirds more than the three elder will get. As to marriage settlements it must be for future children, as there are none others contemplated by such instruments. They are always prospective. In Horsly v. Chaloner, 2 Ves. 81, because the gift was immediate, those in esse at the testator’s death only were suffered to come in. Coleman v. Seymour, 2 Ves. 209, was the case of a power of appointment, to be made of course during the life of the person having the power; yet it was held that none could take but those in esse at the death of the testator. Hodges v. Isaac. Freemantle v. Freemantle, 1 Cox’s Ca. 248. Ordering interest to be paid vests a legacy. Norris v. Mills, 5 Ves. 386, is thought to be incorrectly decided. Lord Rosslyn was not a chancellor of great discernment. Shepperd v. Ingram, Amb. 448, was a case where there were no children in esse, and therefore those born after the death of the testator must e% necessitate come in. It is *said the gift is direct, but that the words “ it shall be divided in the manner following” meant a state of things which has not happened, and that the testator did not intend a disposition, unless those circumstances occurred. But the fact was that the testator looked to the pregnancy of his daughter-in-law, and to the possibility of her having twins. The first clause certainly only looked to the result of the next birth making two grandsons and one grand-daughter. In the next clause the whole provision could have been complied with by the next birth. It was possible that the wife of the defendant might have had two daughters. Then there would have been one son and three grand-daughters.
    As to the argument, from the gift to Mrs. Dutilly, and the circumstance that the estate is left to the care of David Myers, in the end, for his children, it is frivolous indeed if urged to prevent the vesting of the estate which was an immediate gift to the children. As to Mrs. Du-tiliy’s legacy, the gentlemen have not been so good even as to shew how that circumstance was to fix the period. If they meant at her death, it might be after David Myers’ death. But in Singleton v. Singleton there were annuities given which were to return to the estate, and yet the court did not suspend the vesting of the legacies on that account, but ordered a division, also, of this interest in reversion or ex_ pectancy. So in Hill v. Chapman, which was a similar case of annui ties. In Middleton v. Messenger, annuities were given to continue after the death of the tenant for life, yet that estate was divided among all who were in esse before the annuities fell in, at the death of the tenant for life. If educating the children would suspend it till twenty-one, then it would suspend the distribution till the youngest, at the death of the testator, is educated, and then any born before that period might come in, and so any born before he is educated may come in, and so all may be comprehended, which would be suspending *it r#£>_ . to David Myers’s death; then, after his death, should he have a L child not yet educated. The testator left the estate to David Myers’ management and so he has managed it. But does that mean forever, or only until the children could manage it for themselves ? He was their natural guardian. The testator probably thought the division would not take place till the children grew up ; but that was very different from giving directions about it, and will not vary the nature of the estate given to the children.
    As to the argument upon the limitation over, after a total failure of issue of David Myers, if it shews that all the issue take as tenants in common, it would shew that David Myers also took. In Norris v. Mills the issue was to stand in the place of the parent, from which Lord Rosslyn concluded that the death of the parent was the period for the legacy to go over. Here the limitation is too remote. It could not go over at David Myers’ death, but upon the total failure of his issue, no matter how remote. The same kind of limitation was in Singleton v. Singleton, and in Barrington v. Tristram, which was held not enough to suspend the vesting. The court cannot divest the right of the complainant, and tie it up till a future period. It would be, in fact, taking away the property given by a proper legal title, and making other dispositions of it.
    Feb. 1827. Thompson, Chancellor, who heard the cause, decreed that all the children of David Myers, born before the oldest child John Myers came of age, should be admitted. Ordered the shares of John and William Myers to be paid over to them, they having arrived at the age of twenty-one. The defendant was not allowed for the maintenance of the children, but was allowed for the expenses of education. On this subject the chancellor said: “This is a subject altogether within the discretion *of the court, which will be governed by circumstances; as if the father is in low and indigent circurn-stances, and the children are wealthy, there the court will allow for maintenance, but where the parent is in circumstances to allow it, the first law of nature makes it his duty to do so. The court is of opinion that the circumstances of the defendant were amply sufficient for that purpose, and therefore will not allow him any compensation for maintenance. But with respect to the expenses for their education, the case is different. The testator having provided that the expenses of their education should come out of the profits of his estate, created a charge thereon, and the defendant must be. allowed a discount out of the rents and hire, pro tanto.” The. defendant was also allowed for all the necessary and permanent improvements and repairs made upon the estates, and for the support and taxes of the younger negroes until they became fourteen years of age. The charge for his personal services as a steward over the estates, was rejected. The chancellor, also, refused to allow compound interest, or an account with annual rests against the executor, but ordered the accounts to be taken for the rents and hire, with usual rate of interest, without the defendant’s accounting for the profits in any other way. It was also decreed that the testator died intestate as to the lot in Columbia, which of course descended to David Myers. The defendant was also allowed for all advancements made to John and William Myers, and to Mrs. Clendenin. The costs to be paid out of the profits of the estate.
    From this decree John Myers, William Myers and Clendenin and wife (the children born before the death of the testator) appealed. The grounds made were the same as those taken before the chancellor and the case was again argued at length.
    *Preston, Harper, M’Cord and Chappell, for the appellants.
    Gregg, O’Neall and Thompson, for the appellees.
   Curia, pier

Nott, J.

At the death of Jacob Myers, the testator, David Myers, had three children, two sons and a daughter, now Mrs. Clendenin. He had several born afterwards. The question submitted to our consideration is, whether the children in ease at the time of the death of the testator are exclusively entitled to the property, or whether the after-born children are entitled to participate with them.

I concur in opinion with the chancellor, that in the construction of wills the intention must govern, and that the intention must be collected from all parts of the will taken together, and not from particular parts or expressions. And 1 am willing, in this case, to adopt the other part of the proposition, that we must judge of the intention from the will itself, without regard to extraneous circumstances; though I am inclined to think that there may be cases where we may look beyond the will for the meaning of the testator.

I also agree with the chancellor, that “the general rule upon this subject is, that where there is an indefinite period for distribution, the legacy vests at the death of the testator, and that none can take except those in esse at that time . But where there is a fixed period when the distribution is to take place, as when the legatee shall arrive at the age of twenty-one, then all the children born before that time will come in for a distributive share, and such as are subsequently born will be excluded.” But although I concur in the rule as thus laid down, and think that it contains the true principle *upon which this case must be decided, I do not think that it is well illustrated by the case put by the chancellor.

A, says the chancellor, gives his estate to B and C, the children of D, to be divided between them when they arrive at the age of twenty-one years. A dies, and D has six other children born before B and C arrive at that age. A and B (I presume it was intended to say B and C) do not take the whole estate at the death of the testator; but the other six children of D, born before the distribution is to take effect, will come in, and are entitled to a distributive share.

Now, with the utmost deference for the opinion of the chancellor, I should presume that B and C would take a vested legacy, although the time of payment was postponed until they arrived at the age of twenty-one, and that the after-born children would not be entitled to participate with them in the distribution. Where a legacy is given to children, generally, without the specification of any in particular, all who are in esse at the time of distribution may come in ; but where it is given to two or more individuals by name, the postponement of the time of payment, or of distribution, I should presume, would not affect their rights. After-born children, therefore, could have no claim on a legacy thus given, though born before the time of distribution. I am constrained, therefore, to withhold my assent from the case put by the chancellor, although I concur in the general principle which it seems intended to establish.

I also further agree, that where legacies are given to a class of individuals, payable at a future period, as to the children of B when the youngest shall attain twenty-one or to be divided among them at the death of C, any child who can entitle himself under the description at the time of distributing the fund, may claim a part of it, as well the children, living at the period of distribution,* though not born till after the testator’s death, as those born before, and living at the happening of the event.” But then the period of distribution must be fixed, or it must depend upon some contingency, and not be left indefinite. For when the period of distribution is indefinite, those living at the death of the testator alone can take, according to the rule first laid down by the chancellor. And that distinction will be found to run through all the cases. And in every case relied on by the chancellor it will be seen, that a time of distribution is expressly fixed by the testator, or some contingency, upon which the property is to go over, is expressly mentioned in the will, except the case of Hughton v. Price, said tobe decided by lord Redesdale, but as it does not appear from the decree where that case is to be found, nor the principle decided, I am unable to determine how far it is applicable to the case now under consideration. In the case of Ellison v. Ai rey, the property was given over to the younger children of F. E. upon the death of C. P, before twenty-one, or marriage ; it was held that all who came within the description at the time the contingency happened, should take. 1 Ves. Sen. 111. In the case of Bartlett v. Hollister, 1 Bro. C. C. 530, the property was given to the testator’s daughter H. for life, with the remainder over to the children of his sister, upon the contingency of H.'s dying without issue. She did die without issue, and it was held that all the children of the sister, born before the termination of the life estate should take. So in the case of Congreve v. Congreve, 1 Bro C. C. 530, where property was given to all the children of A. at their respective ages of twenty-one, it ivas held that all were entitled who were born before that time, though after the death of the testator. So where property' is given *to a parent, or to other for life, with a limitation over, as in Wild’s case, 6 Coke 17, and the case of Stanley v. Baker, Moore’s Rep. 220, it vests in all the children in esse at the termination of the life estate, or the happening of the contingency', because that is the time they are to take, and not before. The same observations apply to the cases of the Attorney General v. Crispin, 1 Bro. C. C. 386, and Congreve v. Congreve, 1 Bro. C. C. 530. For in both of those cases there is a fixed period when the legacies shall vest. The case under consideration, therefore, does not come within the principle of any of the cases relied on, because there is no time fixed for the distribution of the property, nor does it depend on any future contingency. The words of the will are, “I give and bequeath unto my dear and beloved grand-children,” without any qualification or limitation of time or circumstances. The legacy to his son, David Myers, is in the same words, and it will not be pretended that that did not vest at the death of the testator. The testator appoints his son, David Myers, “guardian of this valuable property,” and unless he had considered it the property of his grand-children, it would have been unnecessary to appoint a guardian to manage it for them. But he even goes farther, and “requests him to have them well educated out of the profits arising from this estate noiv bequeathed unto them.” It would seem, therefore, that from the very words of the will, the grand-children took an immediate and vested interest; for the possession of the guardian was the possession of his wards. And whatever latitude we may indulge in looking for the meaning or intention of a testator, where it is not expressed, we are not authorized to presume an intention contrary to his express declarations.

It is admitted that there is no time fixed for the distribution to take place. But two circumstances are relied on, one to show that the testator had some future period in contemplation, and the other to show when that period* was. The first relates to the negro girl given to Mrs. Dutilly during her life, and at her decease to go over with her increase if she had any, in the same manner as the other property. It is said that “it is obvious a considerable time must elapse before a negro girl of ten years old could have increase.” But the limitation over of the negro girl did not depend upon her having increase. She would have gone over at the' death of Mrs. Dutilly if it had happened the day after the death of the testator. It is a circumstance which goes rather to show that the other property had already vested, because at her decease it is to “ go in division with the other negroes as part of the bequest made unto his dear and beloved grand-children.” The property given to Mrs. Dutilly could not be distributed until her death, but that cannot affect the property given to the children. The bequests are not at all dependent on each other. The life estate of Mrs. Dutilly might terminate before either of the other legatees arrived at the age of twenty-one, or it might not happen for many years after. But let us suppose that the circumstances relied on by the chancellor go to show that the distribution was to take place at some future period, yet as the period is indefinite, the result will be the same, according to the first rule laid by the chancellor himself. The circumstance relied on to fix the period of distribution at twenty-one, is that sixteen years of age is the period at which a young man must enter college, and that it requires two years after the termination of his college life to acquire a profession. Now there is no law requiring a young man to enter college at sixteen, nor prohibiting him from entering at an earlier period. Neither is there any requiring him to finish his professional studies at twenty-one, nor even requiring him to study a profession at all. Both of those periods therefore are equally arbitrary and conjectural. I cannot authorize an-r su°h conclusion. If the *court may gratuitously adopt such a rule, the time of distribution can never be indefinite, because then if the testator fails to fix a period, the court may. I am of opinion therefore that according to the legal construction of the will, the children in esse at the testator’s death are exclusively entitled to the property in question. And I think that all the authorities concur in that construction. Mr. Maddock lays down the rule, that “where a legacy is given to take effect at an indefinite period it will be considered as vested at the death of the testator.” And he adds, “the court will not conjecture against the general rule.” 2 Madd. Cha. 18.

In the case of Ellison v. Airey, 1 Ves. Sen. 111, Lord Hardwicke says, “ the court generally take it that there ought to be a legatee in being, and therefore will not construe a will to extend to persons not in being, unless the testator shows his intention to be such from his will.” In the case of Heathe v. Heathe, 2 Atk. 121, the testator gave a legacy among all the children of his sister Catharine Heathe, share and share alike. Lord Hardwicke held that it went to the children then in esse, and excluded an after-born daughter. That is a much stronger case than the one now under consideration, because the legacy was given to all the children of the testator’s sister. In the case of Horsly v. Chaloner, 2 Ves. Sen. 84, the testator gave a legacy to the younger child of his son William, or if more than one, then to such younger children, &c. to be paid at their respective ages of twenty-one. The master of the rolls said, “the not keeping demands of this sort open, had very properly induced the court to confine it to such children as were in being at the death of the testator, when the number is known and the portions they are entitled to and the time when they are to recover it.” He held, therefore, that it vested in those who were living at the testator’s death, although the time of distribution was ^postponed until their respective ages of twenty-one. In the case of Hutchiu v. Mannington, 1 Ves. Jun. 366, an eslate devised to be sold with all possible diligence or in a reasonable time, was considered as sold from the testator’s death, and that the legacy vested at that time. Lord Thurlow said there seemed to be some faint indications of an intention when the legacy should go over, and that it should not vest in the meantime, but that it was too uncertain to act upon. He agreed that the intention must prevail if it could be found out, but that he must have some rule to go by. In the case of Stapleton v. Palmer el. al. the rule is again recognized “ that a residue to be divided at an indefinite time vests at the death of the testator,” 4 Rro. C. C. 490; and so also when no time is mentioned, Hutchinson v. Manningham, in note. An exception to the rule is where there are no children in being at the time of the testator’s death. There it necessarily embraces after-born children, because there are none others to take. But even in those cases, those only can take who are born before the time of distribution, even though the will expressly mentions those hereafter to be born. Whitbread v. Lord St. John, 10 Ves. 152. Gilbert v. Boorman, 11 Ves. 238.

The case of Singleton v. Gilbert, 1 Cox’s Ca. 68, is so exactly like this, that it is difficult to discover a distinguishing feature between them. The testatrix gave the premises to all and every the child and children of her brother T. G., and to the heirs of their bodies. T. G. had two children at the time of the death of the testatrix, and one born afterwards. The lord chancellor said “this was given direcly, and therefore he could not consider the child as entitled.” It is indeed a stronger case than the devises still livine was were sub-when the an estate after-born the one now under consideration, because ject to an annuity, and the annuitant *youngest child was born. See also Crane v. Odel, 1 Ball & Beat. Rep. 459; Freemantle v. Freemantle, 1 Cox’s Ca. 248; and Viner v. Francis, 1 Ball & Beat. Rep. 190. In the case of Ringrove v. Braham, 2 Cox’s Ca. 384, the testator had given to the children of A. B. fifty pounds to every child ho hath by his wife to be paid them as they shall come of age. There were eleven children at the date of the will, thirteen at the testator’s death, and three born after-wards. The thirteen children living at the testator’s death, were held entitled to the legacies, but not those afterwards born. And in the case of Burke and wife v. Wilder, 1 M’Cord’s Cha. Rep. 551, where the father had given the residue of his estate to his children born or to be born, this court held that he died intestate as to an after-born child. After such a host of authorities and many more which might be adduced, all tending the same way, it would seem impossible that a doubt should remain on the subject if wc are to be governed by authority. And although the rule may operate uneqally in some cases, it is one founded in experience, and, in all probability, as a general rule, is the best that can be adopted. It furnishes certain land marks to direct our course, and prevents that litigation which would necessarily arise in every case without some fixed and determinate rule. It is also conformable with the well settled rule of law, that where a parent directs his property to be equally divided among his own children, a posthumous child not particularly provided for cannot take. In the case of Viner v. Francis, 2 Cox’s Ca. 191, the master of the rolls puts the very case. “ Where a testator gives a fund to be divided among his own children, he shall be supposed to mean such children as are living at the time of his death.” If so, why shall not the same principle apply in other cases? Wc have indeed an act of our legislature now, which provides for a posthumous child. But until the passage of that *act the property vested in those only who -were born at the death of the testator. The gift being made yier verba in prxsenti could only vest in those who were then in esse, and not in those who might never exist.

That part of the chancellor’s decree, therefore, which directs the land to be equally divided among all the sons of David Myers, and the slaves among all the children, must, be reversed. The lands must be equally divided between the two sons, John Myers and William Myers, and the slaves and other personal property must be equally divided between the three legatees, John and William Myers, and Mrs. Clendenin.

With regard to the lot in Columbia, I concur in opinion with the chancellor; for although the testator uses the words “ all my landed estate,” the subsequent specifications clearly restrict their operation to the particular lands therein described. And although the bequest of one shilling to David Myers is expressed to be as “ full compensation and as his full share of all (testator’s) estate, both real and personal,” yet as this lot is not otherwise devised, it must descend to his son as his only heir at law. And this construction is aided by the residuary clause which relates to the personal estate only. The decree of the chancellor in this respect is therefore affirmed.

The next point noticed in the chancellor's decree relates to the allowance claimed for the maintenance and education of the children. On that point the court concur with the chancellor, and the decree in that respect is also affirmed.

The next question is, whether the defendant is entitled to improvements made on the land. On that point also I concur in opinion with the chancellor. I think the defendant is entitled to remuneration for all such improvements as were necessary to preserve the property or to render it permanently more beneficial or valuable *lo the cestui que trust. But he is not entitled to remuneration for money uselessly expended in ideal or unsuccessful experiments, nor for any improvements beyond the actual amount of money expended, or the value of the labor employed.

Another question, however, of no little importance is, whether the property accumulated by David Myers, shall be considered as belonging to the trust estate, or whether lie shall be liable for the rents and profits of the land and the hire or labor of the slaves.

There can be no doubt but that David Myers, having been appointed the guardian of his children, and having- the management of their estate, must be considered as a trustee. And there, is no rule of equity better settled, than that a trustee shall not be permitted to employ the trust fund for his own benefit. All purchases, therefore, made with the funds of the trust estate will be considered for the benefit of the cestui que trust. That principal is exemplified in numerous cases where it has been held that executors, attorneys, and trustees, shall not purchase at their own sales, nor of their cestui que trusts, clients, &c. All persons acting in such representative capacities are considered in equity as trustees, and are governed by the same rules; and it is no answer on the part of the defendant, that he has so mixed up the two funds together, that he cannot distinguish one from the other. A person may sometimes by mixing the estate of another with his own, subject himself to the loss of both; for it is his own fault that they have not been kept separate. But it does not appear to me, that this is a case which will subject the defendant to the loss of all the property he has in possession, merely because he cannot show what part of it has been purchased with the proceeds of the trust estate. His refusing to account, however, furnishes a very good reason why the court should adopt the most rigid rule of calculation, which the law affords *in behalf of the cestui que trusts as a substitute for such omission. Compound interest has sometimes been allowed on that ground, and directed to be calculated on short rests. State of Connecticut v. Jackson, 2 Johns. Cha. Rep. 14, 16. Schieffelin v. Stewart et al., 2 Johns. Cha. Rep. 620. Raphael v. Bœhm, 11 Ves. 92. 13 Ves. 407, 590.

In this case if the property which has been acquired by the proceeds of the trust estate cannot be ascertained, perhaps the method adopted by the chancellor is the best, and probably the only method which can he resorted to to effect the object. I cannot, however, concur in the opinion expressed by the chancellor, that compound interest ought not in any case, nor under any circumstances to be allowed. There are many instances where compound interest has been allowed, as will appear by the cases already referred to, and without which the greatest injustice would be done. That question was settled in this State, as early as the year 1796, in the case of Bowles et al. v. Drayton, 1 Desaus. Rep. 489, a case very similar in principle to the one now under consideration. The testator gave three thousand pounds to his daughter, to be paid on her marriage or when she should attain the age of twenty-one, and that the lawful interest of the said sum should be annually paid and applied for her use, behoof, maintenance and education. The interest being more than was necessary for those purposes, a balance remained for several years in the hands of the executors. The question was whether they should pay interest on the annual balances of interest so remaining unappropriated. Chancellor Rutledge, who delivered the opinion of the court said “that it was a matter resting in the discretion of the court, and that the interest would be allowed, or not, according to circumstaances.” And the decree was, that “the master should make a statement of the ac-counb* allowing interest on the yearly balance of interest, &c.;’ The only difference between the two cases is, that in one, the annual interest on the legacy is directed to be appropriated to the use of the cestui que trust, or legatee, and in the other, the annual income of the estate is appropriated to the same use. And in every case since, where the court has had occasion to lay down any general rule on the subject, the same principle has been recognized, and particularly in the case of Wright v. Wright, decided at our last sitting in this place, ante, page 185. For although compound interest was not allowed in that case, the principle laid down was distinctly noticed and recognized. In this case the defendant has received the rents and profits of the lands, and the profits arising from the labor of the negroes. These constituted an annual fund in his hands for the benefit of the cestui que trusts, and it is incumbent on him to shew that he has employed it for that purpose, or he must pay interest upon it. He will be allowed a deduction for improvements, the education of the children, and the maintenance, taxes, &c., of the young negroes. But I do not think that the allowance for the support of the young negroes ought to be carried up to the age of fourteen. A slave, I think, must certainly be able to maintain himself by his labor before he arrives at that age. That, however, will be a matter of reference to the commissioner to ascertain. After making an allowance for the just claims of the defendant, according to the principles above laid down, to be deducted annually as they arose, the defendant must pay interest on the balance remaining in his hands. In taking an account, however, of the income of the estate, a distinction must be made between the rents and profits of the land, and the labor of the negroes. The two sons are exclusively entitled to the rents and profits of the land; and *hire negroes must be divided among the three claimants.

With regard to the property given to Mrs. Clendenin, soon after her marriage, whether it was intended as an advancement of his daughter in mariage, or a payment of the legacy, is a qestion which has not been tried. The court, therefore, can express no opinion upon it. That part of the case must be referred back to the court of equity for a hearing.

It is therefore ordered, decreed, and adjudged, that the land in question be divided equally between John Myers and William Myers; and that the negroes, together with the increase of the females, he equally divided and distributed between the said John Myers, William Myers, and Mrs. Clendenin. It is also further ordered, that it be referred to the commissioner to inquire, whether there is any, and what property in the hands of David Myers, the defendant, which has been purchased with the funds of the trust estate, and to take an account of the rents and profits of the said land, and the hire and labor of the negroes; and that after making all proper deductions for the improvements on the land, the education of the children, and the expenses of raising and maintaining the young negroes, according-to the principles hereinbefore laid down, and all other necessary expenses and disbursements incurred for the benefit of the devisees and legatees, the amount due for the rents and profits of the land, with the interest on the annual balance thereof, be paid over in the manner directed for the division of the land, and that the balance due for the labor of the negroes, to be calculated in the same manner, be paid over, and distributed in the manner as directed with regard to the negroes.

And with regard to the property received by Mr. Clendenin, that the case be referred back to the court of equity to hear and determine, whether the same was *given to him in advancement of his wife in marriage, or in payment of the legacy due her under the will of her grand-father. And that the decree be reformed so as to correspond in all respects with the principles hereinbefore laid down, and that the costs he reserved until a final hearing of the cause.

Decree modified. 
      
      
         See Taveau v. Executors of Ball, 1 M’Cords Cha. Rep. 7.
     
      
      
         See Hoghton v. Whitgrave, 1 Jac. & Walk. 146, which is probably the case referred to.
     