Cox v. Hogg, 17 N.C. 121, 2 Dev. Eq. 121 (1831)

Dec. 1831 · Supreme Court of North Carolina
17 N.C. 121, 2 Dev. Eq. 121

Thomas Cox et ux. and Nancy Hall, v. Gavin Hogg and William M. Clarke, Exrs. of David Clarke.

Where a testator, having1 expressed his determination to disinherit one of his children, bequeathed as follows : “ my negroes I wish divi- ded equally among my wife, L. N & 0. { his other children ) and “ in the case of the death of either, that their share shall be equally divided amongst the survivors,” it was held by Halt., Judge, that the words of survivorship were used solely to effect the testator’s purpose of disinheriting one of his children, and that upon his death the estate vested in the survivors of L. N. & 0. and was only divested upon their death without issue, when the share of the child so dying went to the survivors : But by Rurrisr, Judge, held, that the words of survivorship were, used only to prevent a lapse ; and that at the death of the testator the estate vested absolutely in the sur= vivors, and upon the death of either without issue, his share went to the next of kin.

This bill, which was filed in 1831, alleged that Mar-maduke Norfleet, being possessed of a large estate in money, slaves and other personal property, in the year 1802, made and published his will as follows : First, to my wife I lend the land See. during her life. Se- cowl, to Lucy Norfleet, otherwise Lucy Brew, for the (i purpose of preventing her from inheriting any part of *122 my estate, I give tlie sum of five shillings, paper mo»-, ney. And besides I here insert this article as a stand* ing memorial, and to perpetuate to my descendants my abhorrence of her late union ; that she has been to mo an ungrateful and a most undutiful child ; that when I am no more, should she fall into any distress, my children I hope will unrelentingly say, the distress 41 is just; that she is only reaping the due reward of her ingratitude to the kindest and most indulgent parent. “ Third, the lands &c. I give to Nancy Norfleet and her issue, but for want of issue to the other of my survi-‘s ving children, Lucy Drew excepted, who it is my most “ earnest wish may not in any case of death of my chil- dren inherit from then!. Fourth, all the residue and remainder of my lands Í give, devise and bequeath to “ the remainder of my children, to-wit, Louisa, Olivia, “ my wife being pregnant, to that should she be safely “ delivered, to them share and share alike, and in the “ case of their death to the survivors when they leave “ no issue. But to Lucy Smith Drew, proofs of daily u ingratitude occur to determine, and l hereby provide u that she. in no case shall -inherit one stiver more, in any case of death, than the live shillings above given to cut her off. My negroes 1 wish divided equally among my wife, Louisa, Nancy, Olivia, and the child “ of which my wife is pregnant, and in the case of the death of either, that their share be equally divided a- mong the survivors, and also the remaining parts of my estate; providing in all cases, that Lucy Drew “ shall never inherit one stiver, in the case of the death “ of either of the above children or wife:” — which - was upon his death in 1818 duly proved, and administration with the will annexed, issued to P. It. T. who paid the debts of the testator, and distributed the residue as directed by the will. That of the children of the testator, Louisa had intermarried with David Clarke, the testator of the defendants ; Olivia, with the plaintiff, Cox ; and ■Nancy, with William P. Hall, who was dead. That the child, with which the wife of the testator was pregnant at the time of making the will, was afterwards born and *123died in the life-time of tbe testator. That Louisa, flic wife of David Clarke, died in the year 1828. The bill then set forth the death of David Clarke, and the probate of his will by the defendants; and charged that they had in their possession all the slaves which came to their testator, upon his marriage with Louisa Norfleet, and prayed a discovery, and that they might be decreed to deliver the negroes to the plaintiffs.

The defendants demurred generally, and on the spring circuit of.1831, his Honor Judge Norwood, at the request of the counsel on both sides, gave judgment pro forma sustaining the demurrer, and dismissing the bill, from which the plaintiffs appealed.

Sea-wall and Badger, for the plaintiffs,

insisted that the object of the testator was not to provide against a lapsed legacy, but that each of his children should take a life estate, and that the whole should finally vest in the last survivor. {Billings v. Sandom, 1 Bro. C. It 398. Nowlan v. Jfdligan, Id. 489. Douglas v. Chalmer,& Ves. Jr. 501. Harwell v. Jlbeij, 1 M. & S. 428. Blissel v. Cran-well, Salk. 2261. Cole v. fVade 16 Ves. 46. Leigh v. Leigh, 15 Ves, 93. .Longmore v. Broom, 7 Ves. 128. Ex parte IL Chester Id. 368. Sims v. Doughty, 5 Ves, 243. Thellusson ■v. IVoodford, 4 Ves. S11, 329.)

Gaston. Iredell and Devereux,'contra,

contended that it was apparent from the whole tenor of the will, that the testator’s great object was to exclude Lacy Drew and her descendants from any portion of his estate, and that as to the others, ho intended they should enjoy the lega-. cics respectively left to them fully and absolutely.

2d. That the words in the particular clause under which the plaintiffs claimed imported a tenancy in common, and should be so construed, notwithstanding the words of survivorship, which were inserted to prevent the legacies from lapsing.

3d. That by the expression in this clause, “in case of the death of either, that their shave to be equally divided among the survivors,” the testator did not mean a death at any indefinite period of time, but must have intended a dying during his lifetime; and in support of *124these two last positions they cited the following authorities: Cambridge y. Ronsi 8 Fes. 12. Hinckley v. Simmons, 4 Ves. 160. Southcotc v. Watson, 3 Mk. 233. Bagshaw v. Spencer, 2 Mk, 577. Peaty. Chapman, 1 Fes. 542. Jlleude» y. Mendez, 3 Mk- 625. Stone v. Heurtley, l Ves. 165. Trotter v. Williams, Free. Ch.78. Bindon v. Suffolk, 1 P. Wms. 96. Stringer v. Phillips 1 Fq. Cn. .3&}\ 292. Lozofield v. Stoneham, 2 .S7r. 1261. Pose v. //¿ÍÍ, 2 Pur. 1881. Roebuck y. Bean, 2 Ves. Jr. 265. Bragrave v. Winder, 2 Id. 634. Pemf v. Woods, 3 Fes. 204. Maberley v. Strode, 3 Fes. 451. Russell v. Long, 4 Fes. 551. v. Taylor, 5 Ves. 806. Brown v. Bigg, 7" Fes. 280. Sher-goM v. Boone, 13 Fes. 575. Webster v. FMe, 8 Fes. 410. Ommanney v. Sevan, 18 Fes. 29 í. Jfewlon v. Mjscough, 19 Ves. 53 k Slade v. Milner, 4 di/ad. 144, 2 Roper on Leg. 264, 268, 4 Mad. 14.

Ruettn, Judge.'

By this will, the land is limited over, upon the death of the first takers without leaving issue. • The clause giving the negroes and the residue of his estate, and upon which this controversy arises, has' not those words. The bequest is to the testator’s wife and four of his children (of which one was then unborn) to be equally divided between them; and then come the words ,5 and in the case of the death of either, that their share he equally divided among the survivors.” The bill states, that the child of which the wife was then pregnant was born, and died without issue in the testator’s life-time. It may be here remarked, that this is the case which falls within the words of the will; which only provides for the death of one of the legatees, in which case the share' is to go to the survivors, and not for a case, where the survivors or survivor is to have all. If either die, the share to go to the survivors.” But I do not suppose this restricted construction is allowable in the case before us; because it would not give room for the exclusion of Lucy Brew upon the death of a second.

The bill further chai’ges, that Louisa married David Clarke and is dead, as is also her husband, and that the *125negroes and other estate have come to the hands of his executors. It is not stated* whether Mrs. Clarke left issue or not. The plaintiffs are the surviving sisters, and the bill claims all the share allotted to Mrs. Clarke, as belonging to the plaintiffs and the widow as survivors.

provisfoiiby wifi for his children, n,atliePhitended to extend ^the ;SSUC) unjess tjle contrary ex-piessy appeal‘ Where a pa-

where a clause °f aWached^to WOrds ’ which create, a tenancy *126jji common, it is construed as referring to some definite period.

*125If I were-obliged to take it, that Mrs. Clarke, in fact, left no children, yet I am at liberty to consider, that the possibility and probability of her leaving issue were within the testator’s contemplation, if it be necessary to aid in the construction of the will. If the construction of this clause depended upon its own terms alone, that might aid in collecting the true one. For a father must be presumed to mean such a provision, consistent with the words, for his children, as will best advance them. Their settlement in life and a provision for their children, must be taken to enter into the testator’s mind, and will be so understood, if the words do not forbid. In this case, that conclusion is strongly fortified by the fact that the other parts of the will sliow, that he actually had that in view. He gives the land over, upon death without leaving issue. St is* true, these words are omitted in the residuary clause. But that does not prove, that the testator meant to leave the families of alibis children in •poverty, to make an immense fortune accumulate for the benefit of the last survivor. It only shows that the personalty was not limited over, upon a death without leaving issue, though the death happened after the testator’s own death ,* as is the case with respect to the laud. Considering then that this is the will of a father, who is presumed to intend a benefit to the families of his children, and who says in other parts of his will, that he docs, so intend, such a meaning is to be put on it, consistent with the testator’s words and the rules of law, as will best effectuate that end : which is by considering the bequest an absolute one to such of the children, as should outlive the testator, and once take..

The authorities are in support of this construction, Wherever there is a tenancy in common,' words of sur-vivorship shall not defeat the effect of the other words, Creating the-tenancy in common. Because that would *126be to strike out altogether the words of partition ; which cannot be done. Whereas “ survivor” may have some meaning in every case, by referring it to some-particular period other than a survivorship at an indefinite period, which would constitute a joint-tenancy and so contradict the provision for shares. Almost every case cited, from Bindon v. Suffolk ( 1 P. Wms. 96 ) down, thus states it, There is, indeed, in several of the cases a dispute, which is the true period of survivorship referred to, short of an indefinite period. And small circumstances have been laid hold of, to carry it forward from the death of the testator to that of the death of a tenant for life; or other period of vesting it in possession. Thus, Bindon v. Suffolk was reversed in the House of Lords, because the fund was a contingent one, to fall in in futuro, and that constituted' an era, to which the survi-vorship referred. But the principle ruled by Lord Cowper was not impugned ; namely, that the death of the testator is the era, if no other can bo designated upon the will, or from the condition,of the estate, short of a general survivorship. And that principle has been considered as decisive, ever since. Lord Hardmcke felt bound by it; and in Haws v. Haws (3 Atk. 5 3. 1 Ves. 13 & 1 Wils. 165) lulled according to it, although there the expression was, with benefit of survivorship.” He says Lord Cotoper’s reasoning was very right; that the surviving “ must be applied to some particular time, and not to a dying indefinitely.” He says, the House of lords thought so too in Bindon v. Suffolk; hut in that case fixed the time of payment as determining the survi-vorship, instead of the death of the testator ; which last he calls an unnatural construction, as Lord Thurlow. in Roebuck v. Dean (2 Ves. jun. 265) has done after him. But what does he mean by unnatural construction hero ? Plainly, he is speaking in reference to a survivorship at some period short of an indefinite one. He says it is unnatural to tic it up to the testator’s death ; because one seldom p no vides by will for what is to happen in his lifetime. I am not sure, that it is not very natural, under the idea that the testator may not come to the know*127ledge of flie fact, though it should happen in his lifetime ; or that he may provide at once for all, because he may not conveniently do it, when it does happen. But I will not set up my judgment against such names. Upon their authority I conclude., however unnatural that construction may be, when another period may he collected, not destructive of the tenancy in common, yet that it is to he taken as natural and reasonable, and intended, when opposed to the still more unnatural one of a sur-vivorship indefinitely, whereby the whole estate accumulates for one.

*126This period is determined by the circumstan-ctes of each case.

In preference to a gen eral sur-vivorship, the death of the testator is taken as tfie true period.

*127T , , In a bequest to A, and “in ¿“di”0!»- jlc happen to die,” ac^kliiig^ofhe circumstances of take fo^Rfe, o° to take absolute-tobe'substh.uted incaseofalapse-

This is the sum of what is said by those eminent judges. And with them accord others, no loss able, both in chancery and courts of law. Lord Alvanley in Russell v. Long (4 Ves. 551) so says, in conformity to Stringer v. Phillips (1 Eq. Ca. Ab. 292) and Bindon v. Suffolk; and in that respect agrees with the previous cases of Roebuck v. Dean (4 Bro. C. C. 408) Perry v. Woods (3 Ves. jun. 204) Bragrave v. Winder (2 Id. 634) and Muberly v. Strode (3 Ves. 450). And Lord Mansfield, in Rose v. Hill (3 Burr. 1881) held the same upon a devise of land, at law, upon the ground of the tenancy in common, created by the words 14 to he divided” — saying, it was a provision by the testator for such of his children, as should survive him and be in existence at the time when the interest was to vest. The same doctrine is held in the later cases of King v. Taylor (5 Ves. 806) and Newton v. Ayscough (19 Ves. 534 besides others.

Another class of cases has been cited, in which there is a bequest to one, 44 and in case of his death,” or 44 if he shall happen to die,” then over ; in which, according to the circumstances, the first has been Isold to take a life estate, and the will to be read, as if it was 4* upon his death” ; or that the first is an absolute gift, if it take effect at all, and the moaning to be, to substitute one legatee for the other, if the first, by dying before the testator, never takes. Of this description are the cases of Cambridge v. Rous (8 Ves. 12) Webster v. Hale (Id. 410) Ommaney v. Bevan (18 Ves. 290) and Douglas v. Chalmer (2 Ves. jun. 501). These slight circumstances show *128that the gifts are successive or alternative, notwithstanding the words of contingency applied to an event, which is certain, but is uncertain as to the period of its happening.’ And the distinction contended for by the defendants’ counsel, that the first taker in such, cases, even if he survive the testator, must be held to take but a life estate, unless some expression in the will denote benefit to the issue or family, is material. Because the question is, what benefit ivas meant for each legatee ? And even in those cases, if the will shows, that if the first take at all, he is not to have the mere profits, but to receive the principal itself, then an absolute property js to be given, although those who were to take in the alternative be the children of the first taker. (Webster v. Hale). Much more is this so held, when those who arc to take on the contingency are strangers ; as is the case in the other cases cited. In Cambridge v. Rous, Ommaney v. Bevan, and Hinckley v. Simmons (4 Ves 160) there were no words of limitation, as executors, or heirs, or issue, annexed to the gift to the first • taker ; and yet in each, it _ was held absolute. And here, clearly, the share of each ivas to be determined at the estate to be divided, and ^ea received specifically by the wife and each child, There was no trust and direction to pay over the profits though the legacy is of a residue, including money and perishable chattels. These are circumstances, which cannot but point to the contingency contemplated by the testator, as that which would be determined at his death. the death of the testator

thif testatoi^B takes upon the kssa beneficio A’s issue is in-less by the bequest he is to paí'as welí as the profits.

Much more is this the case when B is a stranger.

determbeSd°atC the death of the •division tcTt^ made, and there Section to*pay ■over the profits, share'of each!e-especially where the legacy was of a residue, these are cir■cumstances indicating that words of survi-vorship areto be restrained to the death of the tes-

mon is not cut down to a joint ’.tenancy by An express estate in com-*129of they'are held to be inserted for the purpose o-f preventing » laPse-

*128But if this were not so upon this last class of cases, the decision would be controlled by the former, which relate to a different subject, namely, the effect of survi-vorship and the application of words of joint tenancy, up to a certain period, to an express general tenancy in common to two or more in the first instance. (Lord Douglas v. Chalmer 2 Ves. Jr. 506.) If the estate be a tenancy in common in creation, then the survivorship must be confined to the vesting of the estate or some anterior period ; else the estate expressly created can- ... ,, not exist j or rather ivould be turned absolutely into a *129¡joint-tenancy. In the" one set cfi cases, the extent of in-ferest is to be collected by circumstances controlling tbe words of contingency. In the other, the extent of in.terest is the result of the estate expressly given, to-wit, in common ; which shall not be cut down, after vesting, to a joint-tenancy. In other words, the words of sur-vivorsbip are introduced solely to prevent a lapse.- And , , . .. . . , x _ this is the stronger here, because it is a residuary clause; in which words of survivorship would have been unnecessary even to prevent a lapse, if a tenancy in common had not been intended and first created.

'Where a general survivorship' cfcatecl.111 a residuary clause, what sort of a ^worship is intended may be ascertained from the^'ilh^ °f

Thus I think the law stands upon the authorities, if this clause is to be construed by itself. The survivor-ship naturally refers itself to the period of the vesting of the estate. It may be extended, upon tbe intention, to tbe division or vesting in possession. Or it may, in like manner, be restrained to the death of the testator. But every and any construction is admissible, rather than an indefinite dying.

But it is said, that here the anxious exclusion of Lucy Brew is predominant with the testator, and that the will must he. so construed,. as to affect that at all events-; which can only be by successive survivorships, unless we introduce “ issue” into this clause, and a limitation to the issue.

There is no need of a limitation to the issue j for there is none annexed to the devise of the land ; from which _ ,r> • , , , , , » ,, ■ Lucy Brew is as strongly excluded as irom the residue,

If necessary, the court might indeed look to the v 7 ° part of the will to show, what sort of survivorship this general one in the residuary clause meant, and hold it v j ! to bo after the death of one witbout leaving issue. Upon that construction, the plaintiffs would not be entitled ; because the bill does not state that Mrs. Clarke died without issue, and therefore does not make out a title in the plaintiffs. And this is a construction justified by tbe example of Lord Hardwicke in Haws v. Haws. There tbe testator gave his personal estate to his four younger children, and added, “if any of them should die under age, and unmarried, I direct the share of him so dying shall go to the survivors.” In another clause he gave *130his estate in D. to the same four children, and their heirs, “ equally to be divided between them as tenants in common, with benefit of survivorship.” The question was, what survivorship ? At the death of the testator ? Or indefinitely ? Or upon the death of one of the children under twenty one, and unmarried ? Certainly, not indefinitely, for the reasons before given. The will did not say, like survivorship ; yet it was so held, because the bequest of the personalty showed that a survi-vorship of some sort between the children themselves, after his death, was meant; and none other could be meant, unless it was an indefinite one ; which is admissible under any circumstances, where a tenancy in common is created. This will therefore might well be construed with reference to a death without issue ; for that would effectually exclude Lucy Drew, until the death of the last child without issue ; and she could be excluded no longer without an ulterior limitation, iu that event, to a stranger ; which has not been inserted.

But without that stretch, the disposition to the children is absolute, notwithstanding the clause of disherison. The two provisions must have a meaning put on them, and must also have a consistent meaning. The exclusion of Lucy is not to defeat the others also absolutely, altho’ she may derive an advantage by their taking. As suppose, upon the construction contended for by the plaintiffs, the whole estate to come to one child, the last survivor, and that to die without issue and intestate. Lucy Drew would then take by force of the law, for the tv ant of another. Shall the possibility of that prevent the last survivor from taking. Certainly not. The truth is, the testator did not know how to effect his angry purpose, and has failed to effect it in the view we are now .taking, by omitting an ulterior limitation to a stranger to Lucy Drew. So he lias also failed to affect her succession to one of her sisters first dying, by giving to them in the first instance a vested several interest in his estate upon his deatii. For the very chain of reasoning, which "prevents words of joint tenancy, annexed to a tenancy in common, carrying out the survi-vorship to an indefinite period, equally opposes giving *131that effect, to the clause under consideration. For, if to exclude her, the estate must successively survive, then the tenancy in common, expressly created, must cease, or rather never existed, although it be clear, that while the estate is enjoyed, each enjoys in severalty. The two Objects, carried out fully, are inconsistent with each other. Then they must be made to stand together, as far as they can ; and it must be supposed nothing inconsistent was meant; and therefore that each was intended only so far as it was consistent with the other. The .exclusion of Lucy.Drciu is consistent with the idea of a lapse -j but not with a tenancy in common in possession after the death of the testator. Si must therefore be restrained to the former case. But if this were not so, the general intent must prevail over a particular one. Here that is to provide for all his children, except Lucy, and to enable them to advance their families; and this the testator has done in a mode, by which, in a possible event, Lucy Brew may succeed to some of the children, before the death of all of them. This possibility is not to defeat altogether the legacies to the primary objects of the testator’s affections and bounty.

N clause of survivorship,su-peradded to which Jn tenancy in coup *132mon, is held to be inserted for the purpose of preventing' a lapse, unless a contrary intention is apparent.

*131I am of opinion therefore, that upon the death of the testator, which was in this case the period for the vesting and division, the legacies became absolute to his wife, and such of his children as were then living.

Haii., Judge

The clause in the will, that directly relates to the personal estate of the testator, which is the subject of the present controversy, is as follows :— li My negroes I wish divided equally among my wife, Louisa, Nancy, Olivia and the child of which my wife is pregnant, and in case of the death of cither, that their share shall be equally divided among the survivors, and also the remaining parts of my estate.”

In deciding upon this part of the will, I agree with i í-, ,, , ,, , , , , . my brethren, that the legatees took as tenants m common, and that the clause of survivorship by legal con-structmn must be considered as having been added to *132prevent a lapse, in case any of the legatees should die during the life of the testator.

Because a dif- . ferent construction would cut off the issue of the legatee.

Por the same reason a devise to £, but if he die before twenty one or without issue, is construed to mean if he die before twenty one and without issue.

In Maberly v. Strode (3 Ves. 446) the Chancellor says, “ words of survivorship, added to a tenancy in common in a will, are to be applied to the death of the testator, unless an intention to postpone the vesting is apparent.’* “Itis true,” says Lord Hardwicke, in Hawes v. Hawes, (1 Ves. 14) “ this is certainly not a natural way of explaining the testator’s intent, as one seldom provides by will for contingencies that are to happen in his life ; but if no other reasonable construction can be found, the court may resort to this.” And he approved of Lord Cowper’s reasoning in Bindon v. Lord Suffolk (1 P. Wms. 96) who adopted the same construction. It is certainly a more reasonable construction, than one which "would, consign to poverty the issue-of a legatee who might die after the testator, by causing the property to go to the survivors, instead of having vested it in the legatee, and becoming a support for such issue.

It is to avoid a similar evil, that courts have frequently construed one word to mean another; as where an estate is given to a son, but if he dies before twenty-one, or without issue, then over to another. Now taking this devise literally, if the son liad children, aryl died under the age of twenty one years, the éstate would go to the remainder man, and such children would be left unprovided for. For as the father had lost the property, and could not make provision for them out of it, because he liad not lived till twenty one, the remainder man would be entitled. To avoid this injustice, the courts have construed or as and, according to which construction the estate would not be divested out of the son, and the remainder man would not be entitled unless the son should die .under twenty one years of age, and without issue. Such construction is so common, that it is useless to cite authorities to prove it.

In the present case it might not be considered as going far out of the way, to believe that the testator meant this : that if either of the legatees should die before (in common parlance) they got their legacy, or before it ves*133ted in them, then the survivors should have it. However, the doctrine seems so well established, that words of survivorship added to a tenancy in common, are so construed as to prevent a Japse, and become inoperative at the death of the testator, that questions ox that description may be considered as'put to rest (Trotter v. Williams Prec. in Ch. 78. Bindon v. Suffolk 1 P. Wms. 96. Stringer v. Phillips 1 Eq. Ca. Ab. 2-3. Rose v. Hill 1 Burr, 1881. Roebuck v. Dean 2 Ves. jun. 265. Perry v. Woods 3 Id. 204. Russell v. Long 4 Id. 551 Brown v. Higgs 5 Id. 506. Brown v. Bigg 7 Id. 280. Shergold v. Boone 13 Id. 375. Webster v. Hale 8 Id. 410. Ommaney v. Bevan 18 Id. 292. Newton v. Ayscouch 19 Id. 535).

issue of the le-by^'indu-construction, But where the it is adopted.

It is very true, that there are some cases emanating from high authority, which seem to look the other way. In Billings v. Sandom (1 Bro. 393) a bequest was made of £1000 to the testator’s sister ; and in case of her demise £ 800 was given to James and £ 200 to John Billings. Lord Thurlow held, that the sister was entitled for life, and afterwards the legacy was to go over to James and John Billings. So also in the case of Nowlan v. Nelligan (1 Bro. 489) the testator, having a wife and daughter, devised as follows: “ I give and devise to my beloved wife all my real .and personal estate.- I make no provision expressly for my dear daughter, knowing that it is my dear wife’s happiness as well as mine to see her comfortably provided for, but in. case of death happening to my said wife, in that case I hereby request my friends Staple and Hunter to take care of, and manage to the best advantage for my lovely daughter, all and whatsoever I may die possessed of.” In the first of these cases, Lord Thurlow put a natural construction upon the will; because there was no injustice to be avoided, nor great good to be answered by putting a legal or artificial construction upon it. 'With respect to the last case, it could not be intended, that in case the wife survived the husband, her right to the legacy would he complete, because there was a trust and confidence reposed in the wife that she should provide for the daugh*134ter, which she could not execute until after the death of the, testator, and in case of death happening to her, he substituted trustees to perform the trust. It is certain fliat a benefit was intended for the daughter after the mother’s death, and that intention could only be carried into effect by allowing the mother a life estate.

In another case, Lord Douglas v. Chalmer (2 Ves. jun. 501) where a leg’acy was given to Lady Douglas, and in case of her . death, to the use and, behoof of her children, share and share alike, the chancellor thought the natural construction was, that the mother should take a life estate, and that the balance of the interest in the legacy should go to her children. In the case of Cambridge v. Rous (8 Ves. 12) legacies were given to two sisters, and in case of the death of either to devolve upon the other. The master of the rolls was of opinion, that the contingency should be confined to the death of the testator $ and that afterwards, the legacies became vested. Here are two devises very much alike, and constructions very unlike each other put upon them. In the latter case the master of the rolls truly says, “ that it is an incorrect expression to apply words of contingency to an event which is certain. A testator may mean the death of a legatee during his own life, or he may mean a death -whenever it may happen. “Accordingly ( he adds ) in every instance in which these words have been used, the courts have endeavored to collect from the nature and circumstances of the bequest, or the context of the will, in which of these two senses it is most likely this doubtful and ambiguous expression was employed.” He says in another part of the same case, that 16 ordinarily in gifts between near relations, if any restraint is imposed upon the first taker, it is for the benefit of children.” Upon this it may be remarked, that parents are under a greater natural and moral obligation to provide for their offspring, than collateral relations are under to provide for each other or for strangers. Hence to carry the intent of testators into effect as to children, legal constructions are oftener resorted to than in the case of collate-rals or strangers.

*135In the present case it must be taken, that the testator’s ruling intent was to provide for his wife and children, except Lucy Drew. And this intent would be broken in upon, and the nature of the legacy and the context of the will disregarded, if only a life estate was given to the children, and they had not the power to provide for their issue, as I think will more fully appear by noticing other parts of the will, which are as follows: “ To Lucy Drew, for the purpose of preventing her from inheriting any part of my estate, I give the sum of five shillings paper money. Besides I here insert this article as a standing memorial, and to perpetuate to my descendants my abhorrence of her late union ; that she has been to me an ungrateful and most undutiful child ; that when I am no more, should she fall into any distress, my children will, I hope, unrelentingly say, the distress' is just; she is only reaping the reward of her ingratitude.” Again in disposing of liis real estate he directs, that if any of his children die without issue, it shall go to the other surviving children, Lucy Drew excepted. And in the clause which I have first noticed, in which he disposes of his personal estate, he adds the following injunction, “providing in all cases, that Lucy Drew shall never inherit one stiver, in the case of the death of either of the above children.”

From these clauses it appears, that although the tes-, tator considered Lucy Drew to be a legal, component part of his blood, he also considered that the sin of ingratitude had transformed her into an .excrescence, which he wished to lop off from his family. This is evident from repeated expressions of displeasure at her conduct. His great anxiety seems to have been to exclude her from participating in any part of his estate. There is no circumlocution in the devises or legacies. They are expressed in a pithy, laconic form. He seems to have been at no loss, either about the legatees or the quantum given to each. It was the common case of a father giving to his children. And had it not have been for his great excitement against Lucy Drew, we would probably read nothing in his will respecting survivors.

*136Jj-, construing wills, tlie great fundamental rule is to catch the intent of the testator, and be governed by that, if there is no maxim or rule of law opposing it. Acting jn this case under the influence of that salutary rule, and taking into view all the clauses of the will, I can see nothing that should confine the contingency of the death of any of the legatees to the life of the testator. I think it obvious, that the insertion of the clause of survivor-ship was made for the purpose of disinheriting Lucy Drew. The clause was inserted more with that view, than from any idea the testator had of preventing a lapse. I think too, that it was not inserted for the purpose of confining the legatees to life estatesbut that the legacies were intended to become vested at the death of the testator to all purposes but one; and that was, that if any of them died after the testator’s death, (or perhaps before it,) without issue, and without having made any disposition of their legacy by will or otherwise, so that as in ordinary cases it would go to their next .of kin, I say in such case the testator interposed and substituted the survivors in the place of the next of kin, for the purpose of excluding Lucy Drew. The testator’s great purpose was to fix a guard upon his property, and have it conducted into futurity beyond the limits of his own life, free from any claim she might otherwise have to it. And he has done so, I think as far as the death of the last survivor. There he has taken leave of it. And if the last survivor should die intestate, and without issue, or without having made any disposition of it, Lucy Drew will come in for a share. He has created no barrier against her in such case. But she could take nothing upon the death of any preceding survivor similarly situated. This, 1 think, was the testator’s intention; and I am not aware that it is opposed by any maxim or rule of law.

In the present case it appears, that Louisa, one of the legatees, intermarried with David Clarke, and thereby transferred her legacy to him. And although she is dead, Lucy Drew can take nothing as next of kin; and of course, the clause creating the survivorship is inoperative.

*137Thus the testator having shut up all the avenues thro’ which Lucy Drew could derive any benefit from his estate, until it might vest in the last survivor, and then too,, unless that survivor had died without issue, and without having made any disposition of it, his grand purpose was accomplished. Therefore in either view I have taken of the case, whether upon the clause alone that disposes of the personal estate, or upon that clause connected with other clauses in the will, I am of opinion, that the bill should be dismissed with costs.

Per Curiam. — Decree affirmed.