
    LYDIA McBRIDE and others against BENJAMIN C. WILLIAMS, Administrator, and others.
    
    A limitation in a deed of marriage settlement: to the husband and wife during their joint lives, and to the survivor, and if the wife should survive, then the trustees should, at her request, convey the property to her, and if she should die without making such request, then, to such child or children, as she might leave, and if she should die without issue, then to her next of kin, was Held to mean, that all three of the latter contingencies depended on the event of the wife’s surviving the husband; and that though she died without issue, and never called for a conveyance from the trustees, yet, as the husband survived her, the next of kin of the wife, could not come in under the deed.
    
      Cause removed from the Court of Equity of Chatham county.
    In contemplation of a marriage, about to take place between Dr. Charles Chalmers and Mrs. Mary Williams, a deed was made, dated 6th of May, 1830, wherein certain slaves (in number eighteen) were conveyed to the Messrs. McBride, her brothers, in trust, as follows: That the said Charles Chalmers, and Mary Williams shall, during the term of their joint lives, or the survivor of them, hold the said negroes in possession and in the full enjoyment of their labor (and) services, to their’ own use and benefit, and upon trust, that if the said Mary Williams should survive the said Charles Chalmers, that the said James McBride and Archibald McBride, Jr., shall, at the request of the said Mary Williams, reconvey, and transfer to her, all the right, title, and interest, which they have, either in law or equity, to the said eighteen slaves, or such of them as may be living, and their increase, and if she should die without making such request, leaving one or more children, then in trust, that the said James McBride and Archibald McBride, Jun., shall convey and transfer all the right, title and interest, which they have in said slaves, and their increase, to such child or children. And if the said Mary should die, leaving no child or children, then in trust that the said James McBride and Archibald McBride, Jr., their heirs, executors, administrators and assigns, shall convey, transfer and set over, all the right, title, and interest, which they have, either in law or equity, to the said slaves, and their increase, to the legal representatives of the said Mary Williams, their heirs, executors and administrators, according to the true intent and meaning of thesepresents.” The marriage, contemplated in this deed, took place shortly after its execution. The parties lived together as man and wife until July, 1857, when the said Mary died, without issue, leaving her husband her sur-’ viving. In October of the same year, (1857) Doctor Chalmers died intestate, and the defendant, Benjamin C. Williams, became his administrator, and took possession of the slaves in question, claiming to hold them as a part of the personal estate of said Charles Chalmers.
    
      :The plaintiffs allege that they are the mother and sisters of the said" Mary Williams, and that as there is no issue of the marriage to claim, they, as next of kin, are entitled, under the, description of legal representatives, according to the provisions of the said deed.
    To this bill, the defendants demurred, generally, for the. want of equity. >
    Joinder in demurrer; and the cause being set down for argument, was sent to this Court.
    
      .Phillips and Idaughton, for plaintiffs.
    
      Weil McKay, B. F. Moore and Fowle, for defendants.
   Pearson, C. J.

The plaintiffs, who are the next of kin of Mrs. Chalmers, put their right, on the ground, that they are entitled, as purchasers, under the description of “ her legal representatives,” contained in the limitation of the deed of marriage settlement.

The Court is of opinion that the limitation, under which the plaintiffs claim, was subject to the contingency, that Mrs. Chalmers should survive her husband, and as she died first, it never took effect.

This deed differs from the marriage settlements that are usually executed, in several respects: There is no express restriction upon the husband’s ñglú jure mariti, in case he survives J. nor any restriction upon the wife’s right to dower and a distributive share of the husband’s estate, in case she survived; there is no absolute provision made for the children, of the marriage, if there should be any; and there is no separate estate reserved for the maintenance of the wife. These peculiarities lead to the the conclusion, that it was the intention, if the husband survived, that he should take all; and if the wife survived, she should not be restricted to her dower and distributive share, including a part of these slaves, but should, in addition to her dower in his estate, have an absolute estate in all these slaves, if she requested the. trustee-to. convey them to her. In default of such request, at her death, the trustees were to convey: the slaves to her. child or children, and if there should be no child - or- children, the ¡trustees were to convey to her legal representatives — these' dhree limitations, i. e., to her absolutely, rf she requested — if not, to her child or children, and if no child or children; toller legal representatives, being all equally subject.to the contingency of her surviving her husband.

This general view is supported, and in fact, is required-by the grammatical and literal construction of the words. The limitation to her, of the absolute estate, if she request it, is expressly subject to the contingency of her surviving; the limitation to the children is connected with, and made to depend on that to her by the alternative, “ if she should die without making such request,” and is thus made subject-loth e same contingency ; and the limitation to her legal'repre1sentatives is connected with, and made to depend on that to the children, by the alternative, “if she should die leaving no child or children,” and is thus made subject to the same1 contingency. So, that both, in a general and a particular point of view, these three limitations are connected together, and made subject to the contingency of her surviving her husband-; and the deed being silent as to what is to become of the-property in the event of the husband’s surviving, it is left, to devolve upon him jure mariti.

This construction is objected to, because it leaves the issue ,of the marriage unprovided for, which is usually a prominent object in marriage settlements. That is true, but it-results,. mot from the construction, but from the deed itself, which,manifestly does not make the issue of the marriage a prominent-, object of care. There is no provision for children, except incidentally, and that is not confined to the issue of the marriage, but includes any child of Mrs. Chalmers, and is made •to depend upon the contingency of her not requesting the •trustees to convey to her. the-absolute estate; and her right to make such request, is made to depend upon- her being the survivor. So that, any construction compelling a provision • for the issue of the marrriage, would, manifestly, do -violence to the terms of -he deed, and- our construction commends, itself as the true one, by the fact., that it harmonises with the deed, in-not making the children prominent objects.

It will be declared to be the opinion of the Court, that the plaintiffs are not entitled to the slaves claimed by them, and the bill will be dismissed with costs.

Pejs Curiam, Decree accordingly.  