
    Thomas M’Meekin, Administrator of Wm Brummet, v. F. K. Brummet.
    S. B. and D. B. delivered two female slaves to a trustee for the use of C. P., and if C. P. died without issue, “ then the said negroes to return to the sons of S. B. & D. B. and their heirs forever.” C. P. died without issue At the time of the gift, S. B. and D. B. (the donors) had each one son living, and afterwards S. P. had other sons who died, and the son of D. B. died before the death of C. P. at whose death the only living son of either of the donors was the son of S. P. who was living at the time of the gift. This son recovered the negroes and their increase from the representatives of C. P. and took them into possession: On a bill by the administrator of the son of D. B. claiming one-half of the slaves under the gift, it was held, that the limitation was to the sons of S. B. and D. B. living at the time of the gift, jointly, as if it had been to them by name; and therefore the plaintiff was entitled to a recovery. [*638]
    Where property is given by will, to be distributed among a class of persons at some future time, or on some future contingency, all are let in who come into existence before the time or happening of the event, and none can take but those answering the description; but such principle does not apply to a deed or gift inter vivos. A will speaks at the time of the testator’s death, and those who answer the descriptions of legatees at the time will take unless a contrary intention appears but a deed or gift speaks at the time when made, and the donee under it must be such as answers the description at that time. A future contingent interest may be given to a person not in esse, but the intention must be plainly expressed; and if there be a person to answer the description at the time, it will never be applied to another afterwards coming into existence who may come within the description. [*639]
    A contingent remainder is transmissible to the personal representative, when the existence of the remainder-man himself at the time of the event does not constitute the contingency. [*642]
    The right of survivorship in joint tenancy, taken away by the Act of 1791. [*643]
    In decreeing partition of slaves recovered by defendant in a former suit from a third person, defendant allowed reimbursement for the expenses in proportion to plaintiff’s interest. [*643]
    Lancaster, July, 1836. The following Circuit decree presents the case:—
    Harper, Chancellor. On the 8th day of January, 1192, William Brummet delivered two female slaves to Zadock Perry, who signed a receipt for them, in effect declaring a trust in them for the use of his (the donee’s) daughter, Comfort Perry, and the heirs of her body, “but should the said Comfort die without children to heir the said negroes, then the said negroes are to return to the sons of Spencer and Daniel Brummet, and their heirs forever.” It is understood that the slaves had been previously the property of 'the said Spencer and Daniel Brummet, who at the time of the gift had each one son living.
    The defendant was the son of Spencer Brummet; and William Brummet, who afterwards died in childhood and before his father, and who is the plaintiff’s intestate, was the son of Daniel Brummet; Comfort Perry afterwards married Nathaniel Barber, to whom the slaves and their increase were delivered in 1198, and in whose possession they remained until the death of Comfort Perry, without issue, in 1829; at whose death the defendant was the only living son of either Spencer or Daniel Brummet; Nathaniel Barber retained possession of the slaves till his death, in 1832 ; after which they came into the possession of his administratrix, against whom an action was brought by the defendant, a recovery had 1=639] and the slaves *and increase, with the exception of one named Zed, delivered up to him. It is agreed that Spencer Brummet had two other sons, born after the gift in 1192, who died respectively in 1806 and 1801. The plaintiff in right of his intestate, claims one-half of the slaves and damages recovered by the defendant from the administratrix of Nathaniel Barber, as being equally entitled, under the limitation to the sons of Spencer and Daniel Brummet, by the gift of 1192. No question arises as to the validity of the limitation to the sons of Spencer and Daniel Brummet; that was decided in the suit at law. (2 Hill, 543.) The question is, who are to take under the limitation ? I am of opinion, that it must be construed to the sons of Spencer and Daniel Brummet then living, as if it had been in terms, to F. K. Brummet, son of Spencer Brummet, and William Brummet, son of Daniel Brummet.
    
    The argument on the part of the defendant, is founded on the class of causes, in which when property is given by will, to be distributed among a class of persons at some future time, or on some future contingency, all are let in who come into existence before the time or happening of the event; and it is urged that none can take but those who then answer the description; and as the defendant was the only son of Spencer or Daniel Brummet in existenée at the death of Comfort Barber, that he alone could take under the limitation. But all the authorities without exception apply to the case of a will, and no such principle has ever been applied to a deed or gift inter vivos. As observed by Lord Mansfield, in White v. Warner, quoted in Denn v. Bagshaw, 6 T. B. 512, a will speaks at the time of the testator’s death, And as laid down in other cases, those legatees or devisees who answer the description at the time of the death will take, unless a contrary intention appears from the instrument itself. A deed or gift inter vivos, speaks at the time of its execution, and the grantee or beneficiary under it, must be such as answers the description at that time. I do not mean to say, that a contingent future interest may not be given by deed, to a person not in existence, but that intention must be plainly expressed in the instrument; and if there be a person to answer the description at the time, it will never be applied to another coming afterwards into existence who may *R4ni *come within the terms of the description. If this had been a -I direct gift in words of the present time, to “the sons of Spencer and Daniel Brummet,” who must have taken ? Undoubtedly F. IC. and William Brummet. “Sons” is a good name of purchase. It is said that purchases are good by a certain description of the person without surname or name of baptism; as to the wife of J. S., to the eldest son, second or youngest son, all the sons, &c., Co. Lit. [3 a.] So in Wild’s ease, 6 Co. 11, it is said that if a man devises land to A and his children or issue, who has children or issue living, here, according to the rule of the common law as applied to a conveyance, the parent and children will take jointly, they take as purchasers by the name of “children or issue.” But it is said, as distinguished from the rule of the common law with respect to a conveyance, that if there be a devise to A and his issue or children, who has no children, A will take an estate tail. The words “ children or issue,” are words of purchase exclusively in a conveyance, and cannot have the effect of enlarging the estate of the parent, as they have in a will. The word “ sons” is no less a word of purchase. Neither will it be implied, notwithstanding the express mention of “ children or issue,” that they take a future interest as purchasers in remainder; because that purpose is not plainly declared in the conveyance. So if these slaves had been given to Comfort Perry for life, remainder to the sons of Spencer and Daniel Brummet, I take it to be equally clear, that there would have been a vested remainder in the sons of Daniel and Spencer Brummet, who were living at the time of the gift. It is observed by Lord Hardwieke, in Ellison v. Airy, 1 Yes, 114, in relation to a will, “ The Court generally takes 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 by words in the will; which is the rule at common law, as to contingent devises or remainders, for they never construe them contingent or executory unless compelled.”
    Here, in the case supposed, the plain import of the words would give a vested remainder to the sons then living, and I am to seek for the law which would let in others under a gift of this sort; though this ife the case in which all born before the period of distribution are let in under a will. I take the distinction to be this : under a will the words are taken to apply to persons living at the testator’s death ; but others may be let in from the intention plainly* inferred from the provision : in a con- r„,, veyance, the words are taken to apply only to those living at the time •- of execution ; and the Court will not extend it to others, unless it is absolutely impracticable to give it any other construction. An exception is made to the general rule in the ease of a will; there is no such exception in the case of a deed. It is absolutely necessary to regard the limitation we are considering, as contingent in one respect; the property is only given over on the event of Comfort Perry’s dying without children. But there is no necessity whatever, for supposing a contingency with respect to the persons who should take. If, as contended for on the part of defendant, none can take but those who answer the description at the time of the happening of the event, then how would the property have been disposed of, if the defendant had also died before Comfort Barber ? In all the cases on the subject of letting in legatees born after the testator’s death and before the period of distribution, the terms of the will plainly import a distribution among a class or classes of persons. As in Ellison v. Airy, the limitation was to the younger children of a nephew equally to he divided., and the terms could not be satisfied, without including all younger children. In Congreve v. Congreve, 1 B. C. R. 530, “ to divide the money amongst all and every the child or children.” In Attorney General v. Crispin, lb. 386, “£50 each to the children of D. R,” In Heathe v. Heathe, 2 Atk. 121, “to all and every the child or children,” &c. So if the limitation were to the sons of one individual, this might be held to import all his sons, and if he had but one at the time, necessarily to import those hereafter to be born. But here are no words directing any division or distribution; the limitation is to the donees jointly; Spencer Brummet and Daniel Brummet had each a son, and these fully satisfied the terms, “ the sons of Spencer and Daniel Brummet.” The general language of the cases, departing from the general rule and letting in legatees not in existence at the death of the testator, is that it is an indulgence to last wills, and to favor a provision for families. This applies still more strongly to marriage settlements, in which the terms “sons” or “children,” always contemplate sons or children hereafter to be born. But this was neither a will nor a marriage settlement. Spencer and Daniel Brummet were making no general settlement of their affairs, or provision for their families. How am I authorized, in *6491 P0^ °f faeb to conclude or conjecture that *they contemplate •J any other sons than those who then answered the description ? They seem to have been bestowing a benefit on a third person ; they parted with the entire property, and may well be supposed, on a contingency not contemplated to happen, to have given this chance of benefit to their sons then in existence and whom they knew. If they should have other children, they might, in making a future settlement of their affairs, made such disposition among them as might seem just and suitable. Then if William Brummet was entitled under this limitation, was his right transmitted to his personal representative on his death ? If he had been solely entitled under such a limitation, there can be no question but it would If this should be construed a gift to Comfort Perry for life, remainder to her children living at the time of her death, with contingent remainder to William and F. K. Brummet in the event of their being no children, (as would appear to be the true construction, according to the determination of this Court in Henry v. Means, 2 Hill, 328,) then there can be no doubt but that a contingent remainder is transmissible to the personal representative, when the existence of the remainder-man himself at the time of the event, does not constitute the contingency. But suppose the entire estate to be given to Comfort Perry, subject only to be divested in the event of her dying without having children. The rule, as fully settled and recognized by the case of Jones v. Roe, 3 T. R. 88, is that a possibility coupled with, an interest is assignable, descendible or devisable. See also Fearne, 548, 553, and the cases there collected. Those were eases of executory devises, but the interest is exactly the same as under a limitation of this sort, one being created by will, the other by act inter vivos. Mr. Butler, in his note to Fearne, p. 384, after speaking of conditional limitations, and springing or shifting uses, observes, “Executory devises are the .immediate subject of this part of Mr. Fearne’s essay, but his positions and illustrations are always directly or indirectly referrible to the general doctrines of law on all limitations of this description, whether in deeds or wills ” And this is certainly true with respect to the time within which they may be limited to arise ; (Lloyd v. Carew, quoted, Fearne, 215,) or as to their being assignable, devisable or transmissible.
    As I have said the limitation is to the sons jointly, there is nothing to make a tenancy in common, and there is no doubt but in England, if one *6431 before determination of the contingency,* the other would have taken the whole by survivorship, as indeed if one had died after the determination and when the property had vested in possession.
    But under our statute of 1191, providing “ That where any person shall be, at the time of his or her death, seized or possessed of any estate in joint tenancy, the same shall be adjudged to be severed by the death of the joint tenant, and shall be distributed as if the same was a tenancy in common;” “ and that in cases of intestacy, the personal estate of the intestate shall be distributed in the same manner as real estates are disposed of by this act.” I believe the construction of our Courts has uniformly been, that any interest, of any sort, in which there may be a joint tenancy, shall be severed by the death of one joint tenant, and the share of the deceased go to his legal representative.
    Indeed, if a person having such an interest in severalty, would transmit it to his legal representative, and if upon the falling in of the property it must be distributed under the act as personal estate, (which seems to be matter of necessity, for otherwise there is no law for its distribution,) there is the same necessity for applying the parts of the act quoted, to an interest of the same sort held in joint tenancy.
    In decreeing for the plaintiff, it seems but equitable that he should reimburse the defendant half the expenses of the suit at law in which the slaves were recovered ; such expenses beyond mere costs, I suppose must have been incurred. It is ordered and decreed, that a writ of partition issue, to divide between the plaintiff and defendant the slaves received by the latter of the administratrix of Nathaniel Barber, under the recovery in the action of trover before mentioned that defendant, allow account for and pay to plaintiff, a moiety of the damages recovered and received in the said action of trover, beyond the slaves specifically received, with interest from the time that the same was received, and a moiety of the hire of the said slaves for the time they have been in his possession; that the Commissioner take an account of the expeiises incurred by the defendant in the action at law before mentioned, and that plaintiff reimburse to defendant a moiety of the said expenses. Parties to this suit to pay their own costs.
    The defendant appealed.
    
      T. Williams and Eaves, for the plaintiff.
    
      Clarke, De Saussure and Clinton, for defendant.
   *Per Curiam.

The decree of the Chancellor is affirmed for the r-. reasons given. L' b

Chancellors De Saussure and Johnson, concurring.  