#### Burnsides’ Administrator *vs*Wall.

Error to the Garrard Circuit.

*Wills. Detñses. Conversion.*

Chancery. *Case*72.

*January*23.

Case staled.

Chief Justice Marshall

delivered Hie opinion of the Court. To this opinion a petition for re-hearing was filed *and the*opinion sus. ponded until 2d July, 18dil, when the suspension was removed.

By his last will, executed in July, 1839, and admitted to record in the following December, Robert Burnsides, after directing the payment of his debts, devises to his wife during her life or widowhood, all his land and plantation, together with such household and kitchen furniture as she might select, and also eight slaves by name, of whom one was to be free at a designated period. He also devised to her absolutely, a considerable amount of personal estate. He then directs his slaves not devised to his wife nor otherwise disposed of by the will, to be divided into seven equal shares or lots, of which he gives one share in trust, for the use and benefit of the children of a deceased daughter, and one in trust, for each of five living daughters and their children, declaring it to be his intention to make an equal division of his slaves, and to secure to each of his daughters and their children, the slaves so devised, against any and all casualties. Pie then gives one slave absolutely to his son Robert, to whom he also gives an additional slave designated by name, having made a like gift to each of his daughters, on marriage. The fourth ■ clause of the will is as follows: “After the death or termination of the estate hereby devised to my wife, it is my will that all my land be sold by my executors, upon such terms as they may deem expedient, and the proceeds thereof be equally divided between all my children or their descendants, giving to the descendants of such as may die, the same share that the parent would be entitled to if living. And it is also my will, that the slaves above devised to her, except Dick, (the one to be *319emancipated,) after the termination of her estate in them, be equally divided between all my children or their descendants, and when allotted, the slave of each daughter to pass in trust, as directed in relation to my other slaves.” The fifth clause devises one acre around his grave yard to his son. The sixth contains directions for producing equality in the division, &c. The seventh is as follows: “It is further my will, that as soon as convenient after my death, all my personal property not above devised, consisting, &c., with all money due me, or in possession, be equally divided between my children and their descendants, as above directed.” And then follows this sentence — “It being my wish and intention to secure the slaves and their increase to my daughters or their children, against all claims or demands against their husbands. But in relation to all the residue of my estate, I direct and intend the devise to be absolute to each of my children.”

The object' oif Wall’s bill.

Some time after the testator’s death, Nancy Wall, one of the testator’s daughters, and the wife of Michael Wall, died, leaving her husband and one child, born as we understand, but a short time before her death, and which died not long after it, leaving Michael Wall still surviving. Afterwards, in 1845, an arrangement was made between the other six claimants under the will, and the widow of the testator, by which she surrendered for the purposes of the will, the land and personalty devised to her for life, lo be sold and the proceeds to be distributed as therein directed; and also surrendered the slaves to be divided according to the will, in consideration of which she was to receive from the other parties to the arrangement, twelve'hundred dollars, to be paid as the instalments for the land should fall due, but to be repaid at her death. Under this arrangement, the slaves were divided among the other devisees, excluding Wall, and the land and personalty were sold.

In February, 1846, M. Wall filed this bill, claiming one seventh part of the slaves thus surrendered by the devisee for life, and one seventh part of the proceeds of the land and personalty surrendered by her. We do not understand the bill as setting up any claim on *320account of the slaves and personalty not embraced in the devise to the testator’s widow, and which, as we suppose, were divided and distributed shortly after his death. Nor do w-e understand it as making any claim on account of the personalty devised absolutely to the widow, to which he certainly has no. colorable claim.

The defence made to his claim.

The decision of the circuit court.

'Those in remainder purchased •out a life estate in land of a widow, to be paid for in part of the proceeds of the land — Held that •all in remainder might claim to he interested in and entitled to the immediate ¡possession of the estate or its proceeds.

The surviving devisees and the 'administrator, (with the will annexed,) resist the claim thus - restricted, on the ground — first, that under the will, the complainant has no interest, and never can have any in the property devised to the widow for life, or in the proceeds of such part of it as is directed to be sold. And second, that if he has any interest, it is only to be enjoyed after the death or marriage of the widow, and that he is not entitled to any benefit under the arrangement made with her.

The Court, however, decided that the estate devised to the widow was at an end, and that the complainant was entitled to the share of one seventh which his wife or child would have received if alive, and decreeing to him one seventh part of the proceeds of the land, (for which he was decreed to pay one seventh of the stipulated consideration,) directed an inquiry as to the number, value and hire of the slaves, and the proceeds of the personalty, preparatory to the final ascertainment and satisfaction of his claim.

We have stated the arrangement made with the devisee for life, as a surrender of her estate in the land and other property devised to her for life, because that was its legal as well as actual effect. And although-we might not concede that one or more of the ultimate devisees could not have purchased her interest and held it for their own exclusive benefit until her death or marriage, we are satisfied that the purchase having been made for the express purpose of expediting the execution of the ultimate devises, and for the express benefit of the ultimate devisees without exception, and being to be paid for in effect by the proceeds of the sale, to which all were entitled, the life estate under the will was terminated for the benefit of all, and consequently that the complainant, Wall, is as much entitled to par*321tlcipate in the property or its proceeds, upon this termination of that estate, as if it had been terminated by 'death or marriage. If he has an interest, he is embraced by the terms of the arrangement, as well as by its •effect, altough the immediate parties to it supposing that he had no interest, may have considered him as not embraced, or may have intended to exclude him.

Land devised to tile widow for life and then to be divided between the testator’s children, gives a valid interest in all the children living at the death of the testator.

The important question is, whether upon the termination of the life estate, he had any interest in the legacies ©r devises then to come into possession. In other words, did those legacies or devises so vest either '•indHS wife or his daughter., that he as the survivor is ■entitled either in the character of husband, or heir, or personal representative, or next of kin to either •of them, to the share to which either would have been entitled if slue were now living *1*If the will had simply directed the land (after the limitation of the life ■estate,) to be divided among his children, Mrs, Wall, as •one of the testator’s children living at his death, would ‘have had a vested remainder in one undivided seventh

part of the land, which on her death would have descended to her daughter, and on the death of the daughter in infancy-, would have descended not to her father, because it had come by descent from her mother, but by force of the sixth section of the act of 1796, *(StaL Laio,*563,) would have descended to her mother’s brothers and sisters, and the descendents of such of them as were dead. And such would be the result as to any ■interest in the land, as land which may have vested in Mrs, Wall or her daughter, if it was transmissible according to law, and was not controlled by the will. The complainant, thus excluded as heir, would also be without right as tenant by the curtesy, because there had been no semin of the land in right of his wife during the coverture, And it being entirely clear that the actual terms of the devise, admit of no construction which would give him any interest as a direct devise, it follows that so far as- the land is to be regarded as retaining that character under the will, and if until the time when the sale is directed to- be made, the interests of the ultimate devisees as such, are to be regarded as in*322lerests In land, and transmissible as such, the complainant not being a devisee, nor invested by operaton of law with the rights of a devisee, would have no plausible ground for claiming an interest in the subject.

Land is devised to Uie widow for life, then to be sold and the proceeds divided amongst the testator’s children. Those entitled to the ultimate estate purchase out the life estate; one of the devisees, a daughter, dies, leaving one child — the child dies — Held that the life estate not being determined at the death of the female devisee in remainder, and there being no conversion during the life of the child, that the father of the •child could claim no part of the .price of the land.

He therefore claims in his bill, that the testatorhaving peremptorily directed a sale of the land and a division of the proceeds among his children or their descendants, the land in equity is to be considered as converted into money or personalty, and that as such he is entitled to it upon the events which have happened. We do not admit, however, that the land is to be regarded for all purposes, as being converted before the time or event when the sale might properly take place. And if the question were, what became of the land, or of any interest in it, upon the intermediate death of any devisee, wo would say that so far as it is not disposed of by the will, it passed according to the laws governing the transmission of real estate: *Christler*vs Meddis, (6 *B. Monroe,*37;) *Larkin*vs *Chambers, (Ms. opinion, July,*1845.) But the question is not in what course ■the land or any interest in it created by the will would have passed, but in what course the right to the proceeds passed, upon the death of any of the persons who might have been entitled, if living when the sale should have been made. And although the right to recover the proceeds gives the right to take the land in lieu of them, this latter right being a mere incident of the former, cannot control the course of its transmission, but is controlled by and follows it, and in fact does not exist except in the persons entitled to receive the proceeds, and therefore cannot aid in determining who are so entitled.

In whatever character the land itself, in view of the will, is to be regarded during the continuance of the estate of the testator’s widow, we are of opinion that the disposition made of the proceeds is to be regarded as a bequest of money, to be raised by the sale of land, and that so far as the will leaves its transmission prior lo the time when the land may be turned into money uncontrolled, its transmission is to be governed by the rules applicable to such bequests, and not by the rules relating to devises of real property.

*323In the construction of wills the manifest intention of the testator is to govern, if not against law and all rules of construction, ave observed for this end.

Land directed to he sold after the termination of p. *324life estate and videc|10Camongst childrenStatand their descendants, there being no descendants children at the minatíonthof the life estate, none other can take as heir to the last suchas his heir.

*323The paramount rule, however, in relation to both subjects, is that the intention of the testator is to be ascertained from the will,' and if sufficiently expressed, and not in violation of law, is to be effectuated according to the will. All rules for the ascertainment and effectuation of the testator’s intention, are but means for the attainment of this object, and are subordinate to the great rule, that the manifest intention, if agreeable to law, must prevail.

Having ascertained that the disposition made of the proceeds is not a devise of any interest in the land, but a bequest of money to be raised by its sale, it is scarcely necessary to say that the devise of the land to one for life, and then of the proceeds of its sale to others, does not <create either a particular estate with a remainder in the land, or a particular interest with a remainder upon it in the money, because the subjects of the two devises being distinct, they cannot coalesce and form one estate which may be considered as parcelled out among different persons with respect to the period of enjoyment: *(Williams on*Executors, 778; *Fearne on Remainders,*554; 3 *Atk.*219; 3 *Russ. ch. ca.*124.) And therefore the rules applicable to the vesting of remainders, either in personal or real estate, at the same time with the particular estate with which they are connected,, do not apply. And as this is not merely a bequest to the testator’s children, .or to all his children as a class, to be paid at a future time, or on a future event, the rule applicable to such a case, that the interest is to be considered as vested in the children living at his death, (and in a posthumous child should there be one,) so far as tobe transmissible according to law on the subsequent death of any of them, is not applicable. The express provision being sufficiently comprehensive in its own terms to embrace and provide for all possible descendants of the testator at the time when the legacy, is to be raised and paid, there is neither necessity nor room for any construction founded on the presumed intention of providing for all.

The question l'ather is, whether under a provision embracing expressly all descendants who could be his *324hejrs at the period referred to, and for whom he ought to provide, other persons not heirs or descendants,, can come into the distribution, claiming by operation of law in right of a deceased child or descendant, and thus diminish the fund directed expressly to be- divided among aU the testator’s children or their descendants, ° And although it be conceded that the enjoyment of the legacy, that is, the distribution of the proceed» the land is postponed, not on account of any motive . affecting the persons who might come under . f 1 °. the description of “children or their descendants,” at the death of the testator, but from a regard to the life estate, and because during its continuance the land could not be sold, still if it appear clearly that the testator did not intend that the persons then coming within that description were to have it at all events, but that upon the death of any of them, or of others coming after them, who might answer the description, the testator still intends to control the devolution of t^e right until the time when the sale and distribution are to be made, the distinction between the vesting of mere money legacies and of legacies chargeable upon land founded upon the presumed difference of motive above referred to, can have no place in the-present enquiry. But the question would seem rather to refer itself to the rule, that if a legacy be not given by words of present bequest, but only in the direction to pay at the legatee’s arrival at age, or after a certain period or event, the legacy does not vest, and is not transmissible until the lime arrives, or the event happens on which it is payable. That rule is illustrated by the following cases, in which it was determined that the legacies did not vest before the time or event referred to : “I give to J. S. £200 at the age of 21 years,” &c. (1 *Eg. Ca. ab.*295,) ora bequest of “£100 a piece to the two children of J. S. at the end of ten years after my decease,” (2 *Salk.*415;) or a direction, “from and alter” a particular event, to transfer stock, &c. (4 *Vesey,*399; *Williams on Executors,*773.)

The present bequest is in some respects analagous to these cases, and especially to the last, but being a pro*325vision for the testator’s children or their descendants, it may not be within the same principle. The cases of *Ewing's heirs*vs *Handley,*(4 *Littell,*349,) and *Boone*vs *Dyke's legatees,*(3 *Monroe,*537,) do indeed decide that a bequest to the children of one of the testator’s children after the death of their father in one case, and of their aunt in the other, (who were children of the respective testators, to whom estates for life had been given in the same will,) did not vest until the death of the devisee for life, so as to be transmissible before the happening of the event referred to. Conceding, however, that the principle of these cases, that none are entitled to take but such as come within the description when the legacy is to be paid, might in some instances disappoint the intention of the testator in favor of children who might die before the event, and that the cases might not be conclusively applicable to a bequest or devise merely to the testator’s children, there can be no such objection to their application to the present bequest, which by its comprehensive terms, provides for every death - which might happen before the termination of the life estate, and provides for all who could then be presumed to have any claim upon the testator’s bounty.

It is impossible to conclude that the testator intended to give the legacy exclusively to his children who might be living at his death, and the descendants of such as might be dead, leaving it to pass thenceforth according to law, because he expressly directs that the descendants of any that may die afterwards, shall receive a share or shares in the division, such descendants would undoubtedly take under the will, and not by representation or as next of kin to the decedent.' And as it is expressly provided that the descendants shall take the entire share to which the deceased parent would have been entitled, every other claim upon that share, except that of the descendants, if there be any, is expressly excluded, and as the testator provides not only for the death of one of his children, but for the death of any oí his children, or of their descendants, still directing the division to be made between his children or *326their descendants, it is dear that upon each successive death, whatever right, if any, was in the decedent under the will, was intended to pass by th.e will to the descendants, and not in the legal course of transmission which might exclude them. And any construction which would exclude the descendants from a share in the division, by giving it to any other representative of the deceased parent, would be a violation of the manifest and expressed intention. Suppose then that one of the testator’s daughters had died leaving a husband and child, who both survived until the time when the sale and division should have been made, is not the case expressly provided for, and would, not the child as a descendant and legatee, be. entitled to the interest in exclusion.of the husband? Or, if the testator’s daughter had died leaving her husband and several children, of whom some had died, leaving others who were alive when the sale should have been made, would not these surviving descendants take under the will the entire share, to the exclusion of their father, though he might administer on the estate of his deceased children? These questions admit of an affirmative answer alone, as the only one which will allow an execution of the will according to its express words and manifest intent. And although the cases supposed are different from that which has actually happened, yet as they are directly provided for, they prohibit a construction in reference to the actual case which would defeat the will in the cases coming directly within its terms. It is certain that no one of the daughters took at the death of the testator more or less under the will than the others, or an interest in any respect differing from that of the others, and that the descendant or descendants of a daughter who had died pending the life estate, would have taken thereupon no other interest than the mother had taken. If then all the daughters did not take transmissible interests on the testator’s death, none of them took such interest, and none of the descendants took such interest until the event happened on which the legacy might be beneficially enjoyed. Surely a daughter or the descendant of a daughter had no greater or *327different interest by, or in consequence of her' death, ■without leaving descendants, than if she -had left childi-en. And if as is certain,-whatsoever interest a daughter had who died leaving children, terminated absolutely on her death before the event, and was not transmissible to her representative in course of law, the same is as certainly the case as to any interest of a daughter, or of the descendant of a daughter, who died before the «vent.

A legatee dying before the happening of the event upon which the legacy is to become vested, has no transmissible interest which apersonal representative can claim.

Land to be sold and divided amongst the testator’s children after the limitation of a life estate or their descendants. If *328■one die without ■descendants, before the limitation of the life ■estate, leaving ino descendants, the interest of •such an one fall tto the survivors •and their descendants.

*327It is true, upon the intermediate death of a daughter without descendants, there will be no person to take as her descendant, the share which she might have taken if alive. But unless she had an interest different from that of the other children of the testator, the legitimate consequence would be, that as to her the legacy lapsed either for the benefit of the other legatees or for the benefit of the heirs, and as land not disposed of by the •will. In either case the interest, whether in the money or the land, would not vest in the representative of the daughter, because she had no transmissible interest. And for the same reason, if the deceased daughter left a descendant who died before the event, the legacy would not vest in the representative -of such decedent. Suppose in such a case, the husband of the deceased daughter and the husband of that daughter’s deceased child, were both living and claiming the interest to which the wife of. either, if living, would have been entitled. We perceive no ground on which it could be said that one was entitled which would not equally apply to the other, since the deceased wife of each would have had precisely the same interest. But. because neither wife had an absolute interest, transmissible upon her death, to her representative, neither husband would be entitled to any share in the division, even if the share which the wife would have been entitled to, if living, be undisposed of by the will.

But as we think the true construction of the clause in question, and that which alone will effectuate the manifest intention of the testator, is that he intended the proceeds of the sale to be divided among all his1 children who might be living at the termination of the life *328■estate, and the descendants of such as might then be dead, leaving descendants. Every word of the clause refers to that time. After the death, &c., of the wife, the land is to be sold by the executors and the proceeds to be equally divided between all the testator’s children oi; their descendants, giving to the descendants the same share that the deceased parent would have been entitled to. if living, not the share of the deceased parent, which might have been said if the parent had actually had a share, nor the share to which the parent had been or was entitled, but the share to which the parent would have been entitled, if living, that is, if living at the time of sale. We think the testator evidently intended, and has carefully provided that the entire proceeds of the sale should be divided between all his children who might then be living, and the descendants of such as might then he dead, leaving descendants then living, giving to the descendants the share to which the deceased parent Would have been entitled if living. Under this construction no one is entitled .to a share, but children living at the termination of the life estate or the then living descendants of a deceased child, or the representative of such child or descendent, as was living at that time.

The word “all,” used before the words “my children,” sadds nothing to the force or comprehensiveness of the latter words, “all my children,” embraces none but children, and is only equivalent to “my children.” The word all is in fact omitted in the residuary clause, in which the executors are directed to sell the personal estate not disposed of, and to divide the proceeds “among ipiy children or their descendents as above directed.” And this clause showing that the testator intended to die intestate as to no part of his property, fortified the construction by which the previous clause is understood as disposing of the entire proceeds of the land among the children living at the time referred to •and the descendants of such as were then dead. And We deem it certain that the concluding clause of the will explaining the difference in the disposition of the slaves and of the other property given to his daughters. *329was not intended t© designate the persons Who were to take the estate, but only t© account for or explain the ¡manner;in which it was to be held when received. This ■clause, therefore, is entitled to no effect upon the present question.

Conceiving 'it then, to 'have been the clear intention •of the testator, to dispose of the proceeds at the time when the sale and division are directed, and among his then living children and the descendents of such as had ■died, there is no room for the doctrine which seems to have been adopted in England with reference to future legacies chargeable upon land, and perhaps to contingent legacies, whether so chargeable or not, by which a mere possibility is 'held to be transmissible. In those -cases the bequest wás to á designated individual, and the contingency consisted in his living or dying before a ■certain period of event. Here the bequest is to a class, the 'individuals -of which cánnotbe ascertained until the happening of the event referred to, and the fund 'being ■expressly distributable among the individuals then belonging to the class, to allow the transmission of the mere possibility as previously existing in any one who ■might have been entitled, so as to disturb the distribution among those actually answering' the description of legatees at the time When the' event happens, would ■clearly violate the iñténfion expressed in their favor.

We' are of opinion, therefore, that the complainant is not entitled to any interest in the proceeds of the land, in right-of his deceased Wife or *child;*and as the grounds ■of this' eoncl'üsioh apply with at least as' much force, to the bequest of the slaves as to' that .of t'he proceeds of the land', his claim in reference to the slaves, must also be disallowed. With regard to the small personal property bequeathed to the testator’s wife for life, there '■Seems to be no express disposition of it after her death, and we are of opinion that it is not disposed of by the residuary clause. The complainant, as survivor of his Wife may, therefore, be' entitled tooné seventh part of the proceeds' of such property — but the case not being prepared for a décree with respect to it, no direction is given in relation to'it.

*330*Gaperton and Burditl*for plaintiffs; *Turner, Robertson and Burlón*for defendant.

Wherefore, the decree is reversed and the cause remanded, with directions to dismiss the bill so far as it claims an interest in the slaves and the proceeds of the land, and for further proceedings as to the personalty.