#### *Whiting v. Rust.*

September, 1844,

Lewisburg.

Marriage Settlements†—Limitation of Estates to Issue —Case at Bar.—in an antenuptial marriage settlement conveying and settling tlie property of the *feme,*it was recited that “it had been agreed that *J. B. A.*(the husband) should, after the intended marriage had, receive and enjoy, during the joint lives of them the said *J. B. A.*and *A. B. O.*(the *feme,')*the interest and occupation of the said real and personal estate; and also that the same, and the interest and profits thereof, from and after the decease of such of them the said *J. B. A.*and *A. B. O.*as should first happen to die, should be at the sole use and only disposal of the said *A. B. O.*notwithstanding the coverture.” The trusts declared in the deed were for *J. B. A.*for the joint lives of *J. B. A.*and *A. B. O.*If she survived, the whole property to be absolutely vested in her; but if he survived, to him for life ; at his death, to the children of the marriage in equal portions ; and if no child, or such child should die before age, then to the brothers and sisters oj *A. B. 0.,*to be equally divided among them. Held, 1. The wife has no power to dispose of the property during the coverture. 2. The remainder vested in the children on their attaining full age. 3. A child dying within age without issue, the estate vested in the survivors.

This was a bill filed in October 1843, by William Rust, to compel the defendant, G. W. C. Whiting, to complete the execution of a contract, which had been made between the parties for the purchase and sale of a tract of land, by paying the balance of the purchase money.

On the 8th of October 1842, the plaintiff and defendant entered into a written contract, by which Rust agreed to sell to Whiting a tract of land in the county of Fauquier, supposed to contain 830 acres, at the price of 42 dollars 50 cents per acre; full possession to be delivered on the 1st of January 1843. Under this contract Whiting was put into partial possession, and Rust and *wife, on the 29th of October, executed a deed conveying the land to Whiting with covenants of good title and general warranty. This deed was tendered to Whiting and received by him, and put upon record in the clerk’s office of the county court of Fauquier.

Before the time had arrived for giving full possession of the land under the contract, some doubts were started as to the validity of Rust’s title, and Whiting refused to accept the possession. Counsel were afterwards consulted by both parties, who differed in opinion on the questions arising on the deeds through which Rust derived his title, and it was agreed between the parties that Rust should file a bill against Whiting for a specific execution of the contract, who, in his answer, was to state his objections to the title, and rely upon them alone for his defence, and thus have the questions settled.

The bill was accordingly filed, and Whiting answered, stating his objections to the title, which, so far as they were material, grew out of .the following state of facts.

A deed of marriage settlement between John B. Armistead of the first part, Ann B. Carter of the second part, and Robert Carter and Landon Carter of the third part, dated June 22d, 1796, was executed for the purpose of *conveying*the property of Ann B. Carter to the parties of the third part, for the uses therein declared. The preamble, after reciting the contemplated marriage between the said John B. and the said Ann B., and the possession of considerable propert3r, real and personal, by the said Ann B. Carter, recites the marriage_agreement in these words, “And whereas it hath been agreed that the said John B. Armistead should, after the said intended marriage had, receive and enjoy, during the joint lives of the said John B. Armistead and Ann B. Carter, the interest and occupation of the said real and personal estate, and also that the same, and the interests and profits thereof, from and after the decease of such of them, the said John B. Armistead and Ann B. Carter, *as should first happen to die, should be at the sole use and only disposal of the said Ann B. Carter, notwithstanding her coverture.” The deed then proceeded to witness: That in pursuance of the before recited agreement, and of ten pounds in hand paid, the said Ann B. Carter, with the assent of John B. Armistead, had granted the aforesaid real and personal property to the parties of the third part, Robert and Landon Carter, their executors, *200administrators or assigns, “upon such trusts, nevertheless, and to, and for such interests and purposes, and under such provisions and agreements as are hereinafter mentioned, that is to say:

“In trust for the said Ann B. Carter and her assigns until the solemnization of the said intended marriage:

“Then upon trust that the said Robert and Bandon Carter, their executors, administrators and assigns, shall do and permit the said John B. Armistead, during the joint lives of the said John B. Armistead ana Ann B. Carter his intended wife, to have, receive, take and enjoy all the interest and profits of the said property hereby assigned, to and for his own use and benefit :

“And from and after the decease of such of them, the said John B. Armistead and Ann B. Carter, as shall first happen to die, then upon trust that they the said Robert and Bandon Carter, their executors, administrators and assigns, transfer and pay over all the said property to the said Ann B. Carter in case she survives the said John B. Armistead.

‘ ‘But if she die before him, then that the said John B. Armistead be permitted to enjoy the said property during his natural life.

‘ ‘And at his death, that the same shall descend to the child or children (in case they have any) of them, the said John B. Armistead and Ann B. Carter, and their heirs in equal portions.

‘ ‘But in case they have no child, or such child die before age, then the aforesaid property shall revert to the ^brothers and sisters of the said Ann B. Carter, to be equally divided among them and their heirs.

“To the intent that the same may not be at the disposal of, or subject to the control, debts, forfeitures or engagements of the said John B. Armistead her intended husband, but that the same shall be and remain in the manner above limited.

“Further, it is the meaning and intent of the parties, that the persons, to wit, her brothers and sisters, into whose hands her estate may come by virtue of these limitations, shall allow an equivalent for the improvements which J. B. Armistead may make on the real estate.”

This deed embraced all the property of Miss Carter; and Armistead possessed little or none of his own.

The marriage contemplated by this agreement, took place, and .there were several children, the issue of it. Three of them died infants of tender age, unmarried, and without issue; two prior to the year 1813, and one in the year 1823. Four of them survived, and are yet living, having long since attained full age. These are Robert B., John C., Mary F., and Bouisa G. Armistead.

On the 1st of September 1813, John B. Armistead, and Ann B. his wife, executed a deed, by which, amongst other things, they conveyed to John A. W. Smith, the | aforesaid tract of land in Fauquier, together with some slaves, upon trusts, that Smith, the trustee, should receive the rents and profits thereof, and apply the same to Mrs. Armistead’s use, during her life, and after her death, to the maintenance of John B. Armistead, and to the maintenance and education of the children of the marriage during Armistead’s life; and that after Armistead’s death, this trust should cease, and the land, by this deed conveyed to Smith, should be and remain to the children of the marriage, (share and share alike,) then living, and if any should be dead, then the share *which would have fallen to him or her, should be for his or her descendants, if any. This deed was duly recorded in the county of Fauquier.

Mrs. Armistead died in 1825, leaving her husband and the four children before named surviving her, and they are yet living, and all the four children are married and have children. There were, however, three children of the marriage who died in the lifetime of Mrs. Armistead, two of them previous to the 1st of September 1813, and one subsequent to that time.

Of the land conveyed by the deed of June 22d, 1796, eight hundred and two acres have come to the possession of Rust by conveyances', derived through the four surviving children of Ann B. Armistead, executed by them since the execution of the deed of the 1st of September 1813, and constitute a part of the land sold to Whiting. Subsequent to the contract between Rust and Whiting, viz: on the 28th of December 1842, John B. Armistead the father, conveyed and released to Rust all his life interest and title to support in the lands conveyed by the deed of June 1796, and by the deed of September 1813.

There were some objections to the title growing out of these conveyances, but they were not considered material, and the facts in relation to them are, therefore, not stated. The important questions in the cause were those arising on the deed of 1796, and related to the power vested in the wife by that deed, to dispose of the property thereby conveyed, during-the coverture. The objections to the title arising out of that deed stated in the answer, are three.

1st. That under the marriage contract of 1796, Ann B. Carter was, during the coverture, entitled to an absolute power of disposition over the whole interest in the property embraced by said settlement, save John B. Armistead’s right to the profits for the joint lives of himself and his wife.

That this power of disposition authorized *and rendered valid the disposition of the property made by the settlement after marriage in 1813; and that under the settlement of 1813, no good title can be made to any part of the land embraced by the settlement until after the death of John B. Armistead, who is still alive.

2d. That if no power of disposition is reserved to Mrs. Armistead by the settle-*201meat of 1796, still under that settlement the remainders in fee to the children of the marriage, were liable to be defeated by a failure of issue of the marriage at John B. Armistead’s death—a contingency which may yet happen; therefore, the complainant, claiming under deeds from the children, holds under a title still defeasible in a possible contingency.

3d. That under the proper construction of the settlement of 1796, there were no cross remainders among the children of the marriage, and Mrs. Ann B. Armistead was one of the heirs of such of her children as died in infancy before her—their interest in the land having come by gift from her; that two of the children died in infancy prior to 1813, and, therefore, in 1813, Mrs. Ann B. Armistead was, as heir to the two children so dying, entitled to their proportion of the remainder in fee in the land; and being so entitled, the marriage settlement of 1813, settled this interest in the land to the uses of that settlement. So, no good title to such interest in the land can be made till John B. Armistead’s death. That this is an undivided interest in the whole tract, unascertained as to position, and no purchaser would be compelled to take a title with a claim to such an undivided interest outstanding.

In November 1843, the cause was removed to the superior court for the county of Culpeper, and came on by consent to be heard on the 13th of March 1844, when the court being of opinion that the complainant was entitled to specific execution of the contract between him and the defendant, sent the case to a commissioner to ascertain several matters of account not sufficiently appearing to enable the court to render a final decree.

*Rrom this interlocutory decree, the defendant Whiting obtained an appeal to this court.

The cause was argued in writing by James Marshall for the appellant, and C. & G. N. Johnson for the appellee.

J. Marshall, for the appellant.

The settlement of 1796, presents a plain conflict of intention expressed in two different parts of the same instrument. It presents, therefore, a pure question of construction, and not a case in which it is necessary to appeal to the extraordinary powers of a court of equity to alter or reform the instrument. The question is, whether the recital in the deed, or the clause of settlement, expresses the true intention of the patties to the settlement? If the court, before whom the question comes, whether a court of law or equity, is satisfied from the whole instrument, and the circumstances under which it was made, that the recital expresses the true intention of the parties, then as a matter of construction, and not of amendment or alteration of the instrument, the court will effect the intention expressed in the recital, and for this purpose will, in construing, correct the language of the clause of settlement by reading it as if omitted words had been inserted. This is what lord Mansfield did in Moore v. Magrath, Cowp. 9, though sitting in a court of law: and what the chancellor did in Coryton v. Hilyar, 2 Cox’s Cases 348, in the case of a will which he had a right to construe, but certainly none to alter or reform.

The first question to be settled, is the true meaning of the recital, and whether it be not unequivocal and susceptible of but a single construction. The language of the recital is unnecessarily strained and involved, but surely it does not admit of two constructions. It is said, indeed, that the expression “notwithstanding the coverture,” is the only one in the clause to indicate that *Mrs. Armistead was to have the power of disposition during the coverture. But omit the expression, and take the rest of the sentence, and see to what absurdity it would lead, if the power of disposition spoken of is supposed to be only exercisable after the termination of the coverture: “the same, and the interest and profits thereof, from and after the decease of such of them, the said John B. A. and Ann B. C. as should first happen to die, should be at the sole use and only disposal of the said Ann B. C. ” If she was not to exercise the power of disposal till the termination of the coverture, then here would be given to her, in express terms, a power of disposal not to be exercised until after her own death. This absurdity inevitably follows from construing the expressions “from and after the death,” &c. as indicating the time when the power of disposal is to be exercised, instead of construing them as a part of the description of the subject or interest over which the cower was to be exercised. By the first part of the clause, the interest during their joint lives is given to the husband, the remaining interest was to be disposed of, and in order to this, to be described—and the language employed is a description of that remaining interest, and a full description, though quaint and involved. The expression “notwithstanding her coverture,” only verifies what would have been the fair meaning of the clause without it. Cotemporaneous precedents put the meaning of the clause beyond question. In Pickett v. Chilton, 5 Munf. 467, the marriaere settlement was made in 1803, and contains this clause verbatim, and the meaning of it is fixed by the settling clause giving the wife the power of disposition during coverture. Such, too, is the form of a marriage settlement given in Hening’s Justice, edition of 1795.

Here, then, is an irreconcilable conflict of intention between the preamble and the clause of settlement; and in a matter of vital importance to the parties to it. The *authorities shew that in such cases, it is not a matter of course for the intention in the clause of settlement to prevail, but that the court.....as a matter of construction, not reform, of the settlement —in selecting between the intentions ex*202pressed, will look to the situation of the parties, the nature of the transaction, the intentions themselves, to see what is the natural and probable one, and any intrinsic indicia of intention to be found in the instrument. In favour of the intention expressed in the preamble, we say, that unless a power of disposal during the coverture is reserved to Mrs. Armistead, the disposition or settlement of the property would be utterly unnatural, and such as no one in Mrs. Armistead’s situation could be supposed to have consented to, if she understood it: and that the unnatural feature in the settlement, is not one operating in favour of the husband or the children, but of collateral relations. The frame of the settlement is also strongly relied on, as shewing that this power of disposal was designed to be, or was supposed to be reserved.

In construing marriage articles in order to direct or reform a settlement according to them, the English courts have always been strongly inclined to presume an intention to make a fixed and independent provision for the issue of the marriage, and have refused to construe language in its technical sense when it would defeat such a provision. Can a case be produced, in which they have refused to construe language in its natural sense because the construction would defeat such a provision? If they have gone that length, it would be equivalent to saying, that the court would make provision for the issue, whether the parents designed it or not. But be this as it may, certainly, in construing marriage settlements, the courts in England allow the language to have its technical effect, though thereby the children are left dependent on their parents. The question, whether .the parents designed an independent provision for *the children, or to leave them dependent, is examined fairly like any other question of intention; and the intention of the parties to the particular instrument, (not the intention or policy of the law or of the court,) is permitted to prevail. If courts in such cases enquire, what is generally the object of parties in making marriage settlements, it is not with the view of making this general and usual object overrule clear indications of a different design by the parties to the particular settlement before the court. It is only where the design of the parties to the settlement is left in doubt, that the presumed general objects of such settlements would be resorted to. And beyond all question, in deciding whether an independent provision for the issue was designed, every indicium of intention to be found either in the instrument or the situation of the parties, would receive its fair weight, and would not be smothéred by an appeal to the vague general presumption.

Now in this settlement of 1796, and in the clause of settlement too, without calling in aid the disputed power of disposal, there is incontestible proof that the parties did not design to make an independent provision for the children; for if Mrs. Armistead survived her husband, the whole property was to be conveyed to her, and placed at her absolute disposal. The wife, therefore, did not choose that the issue should have a fixed and independent interest in the property during her life, and the husband had not sufficient influence to secure such a fixed interest to his children. If we discard the preamble, it is true that in the event of the wife’s dying before her husband, an interest independent of her control is given to the children; but in that event it is equally settled on her brothers and sisters. If then no power of disposal during coverture is reserved to the wife, that has not arisen from a desire to make a provision for the children independent of her control, but obviously for the purpose of preserving the wife’s property *in the wife’s blood, and to exclude the husband from a fee simple interest in it. An absolute power of disposition in the wife would not alone have effected this object, for she might have died without exercising it, and then if the property was not disposed of by the settlement, the husband as her administrator would have been entitled to the personalty. Hence if the husband survives the wife, the property is settled on' the children; and if no child, on the brothers and sisters. So if the power of disposal during coverture has been denied the wife, it can only have been through fear of the husband’s influence over her. No other motive can account for the absolute power being left to the wife in the event of survivorship, but denied to her during the coverture. If such a jealousy was seriously entertained, it should have prevented the marriage; and if it was not, proper respect for both husband and wife should' have prevented its prominent expression from staining their inarriage settlement. There is, however, in fact, no reason for the supposition, that fear of the husband’s influence caused this power of disposal to be withheld from the wife. But be this as it may, nothing can be clearer than that in this case there was no original design to make a provision for the children independent of the mother’s powers. If it has been done, it is incidentally and only as a mode of effecting another object; and the same independent provision in furtherance of the same object, is made for the brothers and sisters of the wife.

The first prominent object of this settlement evidently was to protect the principal of the wife’s fortune from the marital rights of the husband, and to preserve it to her if she survived him. The second leading object was to preserve it in the wife’s blood, and secure it to her brothers and sisters against the husband, either as heir to his children, or administrator of his wife. These are the only motives for the settlement, which distinctly appear; and but for these it would not have been made.

*When, then, in the preamble to this settlement, we find a clear an*203nunciation of the intention that the wife should have an absolute power of disposition during coverture, and no clause to that effect is found in that part appropriated to the settlement, and it is contended that this omission has been either accidental, or because the draftsman, having once clearly announced the intention, supposed it was unnecessary to repeat it, and the question thus presented for debate is, whether the parties really designed that the wife should have this power during coverture—what possible weight can it have to urge, that in marriage settlements generally, the leading object is to make an independent provision for the children? The answer is, that in this case there was clearly no such object; that the motive for making any provision for the children, was to guard against the husband and his power. And it is by magnifying the importance of guarding against the husband’s power or influence during the marriage, that the proofs of the intention that the wife should have an absolute power of disposal during the coverture, are to be met. That a lady before marriage should so distrust her intended husband as to fear to entrust herself with the disposal of property during the marriage; and in consequence of this distrust, should so entirely divest herself of her whole fortune, as, in the failure of issue, not to have the power to dispose of it among her collateral relations, or even to provide for her own support out of it, if the husband wasted his life estate in it, is too unnatural and improbable to be received, whilst there is any other plausible mode of escaping from the conclusion.

It has been objected, that an absolute power of disposition in Mrs. Armistead, is a fee simple; and if a fee simple is given her during the coverture, the limitations to the children, and to the brothers and sisters in the event of her dying before her husband, would not merely be defeasible by the exercise of the power of disposal, *but would be absolutely void as limitations after a perfect fee. Now an unlimited power of disposal is not equivalent to a perfect fee simple estate; and it is common in conveyancing to find dispositions of an estate in the event of a failure to exercise such an unlimited power. The case of Maundrell v. Maundrell, 10 Ves. 246, is a striking instance of this. See also Sugden on Powers, vol. 2, p. 34, 46; Law Lib. 20.

But concede, that in construing this instrument the preamble is to be rejected, and Mrs. Armistead is to be supposed not to have had a power of disposition during the coverture, and that the property must go according to the limitations in this settlement of 1796: still the question remains, whether under this settlement the children of the marriage can, during the father’s life, make a good title to this property.

It is obvious that the limitation to the children was originally contingent—contingent, because there might be no children, and contingent, also, because the event upon which it was to vest in them, namely, Mrs. Armistead’s death before her husband, might not happen. It is obvious, also, that even after the limitation vested in the children, their interests were liable to be defeated by the happening of the con tingency upon which the property is directed to pass to the brothers and sisters of the mother. The interest of the children, therefore, in the property, was originally liable to two risks: one, that the remainder might never vest in them—the other, that after it vested it might be defeated by the happening of the contingency on which the property was to pass to the mother’s collateral relations. If, then, at any given time, the question arises, whether the children, by uniting with their father, can make a good title to the land, an answer in the affirmative cannot be given, if either the remainder has not vested in them, or it is still possible for the contingency to happen on which their vested interest is to be defeated, and the estate to pass to the col-laterals.

"'In the opinion given to Mr. Whiting, it is said, that the contingency upon which the remainder now vested in the children is to be defeated, and the springing use in favour of the brothers and sisters is to arise, is the failure of descendants of the marriage at John B. Armistead’s death. And it ought to have been added, that originally there was another branch of the contingency, namely, the children being minors at John B. Armistead’s death, and dying afterwards under age, and without issue. The grounds of that opinion are now to be stated.

It will be seen that this was putting the same construction on the clause that limits the property to the brothers and sisters, as if it read thus: “but in case they have no child at the death of John B. Armistead, or such child die before age, and without issue.” The supplj’ing these words, “and without issue,” here, is by no means necessary to sustain the objection to the title; on the contrary, it was done rather as a concession, for if the construction is right in other respects, the title would be more dangerously defective without than with these words. But counsel really thought, and thinks, that where a remainder to the children of a marriage, in the marriage settlement, is to be defeated by a springing use in favour of collateral relations, the court would supply the omission of these words, “and without issue,” in the description of the contingency on which the springing use is to arise, to effect the presumed intention of the parties, and avoid the disinherison of issue of the marriage. See Spalding v. Spalding, Cro. Car. 185, and the cases of Kentesh v. Newman, 1 P. Wms. 234, and Targus v. Puget, 2 Ves. sen. 195, cited in the opinion filed with the answer. But the question is, whether the above construction is right in construing the contingency on which the springing use is to arise, to be a failure of children at John B. A.’s death, or such children dy*204ing under age. It is to be observed in the *first place, that supplying the words “at the death of John B. A.” is, in fact, only repeating words already substantially found in the instrument. The words “and at his death,” (John B. A.’s death,) which are in the instrument, and are introductive to the remainder to the children, are equally introductive to the limitation to the brothers and sisters, as is sufficiently established by the fact, that in one aspect the two limitations were originally alternate remainders, either of which might vest in possession at John B. A.’s death. The clause, therefore, as it is found in the instrument, is exactly as if it read thus: “but in case at his death they have no child, or such child die before age,” and the construction above contended for does no violence to the letter of the instrument.

Counsel are fully aware, that since Boraston’s case, 3 Coke 19, such expressions as, at, when, then, &c., when introductive to a remainder, though they seem to import or form a part of the description of a contingency, yet are not allowed to produce the effect of postponing the vesting of the remainder, till the time to which they refer, and are construed as descriptive of the time when the remainder shall vest in possession, and not when it shall vest in interest. Thus, in the case at bar, the expression, “at his death,” (John B. A.’s death,) does not prevent the remainder to the children from vesting in interest on the death of Mrs. Armistead before John B. A.’s death. But counsel are not aware that the same rule of construction, with respect to such expressions, has been adopted where they are used as introductive to a springing use or executory devise, which is to enure by defeasance of a preceding remainder. Though it may be the policy of the law, and generally the wish of the settler, that a remainder should cease to be contingent as early as practicable, yet it by no means follows, that either the one or the other would require that the time within which a springing use might arise in ^defeasance of a remainder, should be restricted as much as possible by construction. The law has fixed on the general Restriction of a life or lives in being, and twenty-one years after, as the limit within which a springing use or ex-ecutory devise may arise; and within these bounds, it is presumed that the court would fairly give effect to the settler’s intention. So, also, when the same expression, at, when, then, &c., in the same instrument, is used as introductive to a remainder, and also to the springing use which is to operate in defeasance of the remainder, there is no reason why the expression should not receive a different construction, and be allowed to produce a different effect in connection with the springing use, from that which it produces in connection with the remainder; no greater reason than would exist were the expression repeated before each. Counsel are aware, too, that it may be objected that this limitation to the brothers and sisters had originally a double aspect, and that under it they had two chances of taking the estate: one by way of alternate remainder, if there were no children of the marriage at Mrs. Armistead’s death, and the other by way of springing use, if there were children— (Preston on Estates 39),—and that by the above construction, a different effect would not only be given to the expression “at his death,” in connection with the springing use and the remainder to the children, but also a different effect in connection with the springing use and the alternate remainder to the brothers and sisters themselves ; for if they had taken under the alternate remainder at all, it would have vested in them at Mrs. A.’s death, and before the death of John B. A. Still this is an objection in its nature verbal and technical, and it would not be unyielding and inexorable to construction, if it is found that the construction contended for is absolutely requisite to effect the great object of the settler in this limitation to the brothers and sisters. Sheffield v. Eord Orrery, 3 Atk. 288. It is ^because counsel entertained a strong conviction that Mrs. Armistead never designed that the children should have perfect and indefeasible fees during their father’s life, and that, therefore, the construction contended for is absolutely necessary to effect a leading object of the settler, that the above construction was adopted.

Why is it that Mrs. Armistead, who, beyond question, is to be taken as the settler, cut down the remainder to her children, to a base fee, by this springing use in favour of her brothers and sisters? It was because she wished to keep the property in her own blood, and to prevent, as far as practicable, her husband from in any way acquiring the fee simple interest in either the real or personal estate. The strong and emphatic clause with which the settlement concludes, establishes this be37ond doubt: “to the intent that the same may not be at the disposal of, or subject to the control, debts, forfeitures, or engagements of the said John B. Armistead, her intended husband, but that the same shall be and remain in the manner above limited.”

Now what chance of John B. Armistead’s taking this property was designed to be guarded against by this springing use in favour of the brothers and sisters? Not his marital rights, because they had been effectually guarded against by the other provisions of the instrument; nor yet his right to the personal estate as administrator of his wife, for that had been effectually intercepted by the remainder to the children, and the alternate remainder to the brothers and sisters.- Why was the springing use in favour of the brothers and sisters, in addition, inserted in the instrument, at the expense of cutting down the remainder to the children to a base fee? It can have been for no purpose but to prevent the* father from taking the property, and *205especially the land, as heir of his children. Mrs. Armistead preferred that her brothers and sisters should have the property before her husband. It was perceived that, if the children, *after her death, should die without issue and of age, that their father would take, as heir, and cut out the brothers and sisters of the wife; and this springing use was to prevent this result.

If such be the sole motive for creating this,springing use, will the court, when an option is afforded, unnecessarily put such a construction on the clause creating it, as must entirely defeat the only object the settler had in view in creating it? It can be clearly shewn that, unless the construction above contended for is given to this clause, the springing use could have had no effect in preventing John B. Armistead from taking the real estate as heir of his children, in any event in which he could have taken as heir without this springing use. The construction contended for would have the effect of keeping the remainder to the children, into whosesoever hands it might pass, a base fee until John B. Armistead’s death ; neither he, therefore, or any one claiming the remainder as heir of the children, or of any one of them, would take it, during John B. A.’s life, as any thing but a base fee, liable to be defeated by there being no children, or at least,., descendants of the marriage at his death; and, therefore, if there were no descendants of the marriage at his death, the brothers and sisters would defeat any interest that might have descended to him from any one of the children, and the estate would remain as limited—in the wife’s blood. But how is it if the opposing construction prevail? namely, that as soon as any one of the children became of age, the springing use was utterly defeated and gone, and the remainder to the children ceased to be a base, and became an absolute fee simple. The most striking result of this construction would be, that if one of the children arrived of age during Mrs. Armistead’s life, though such child died before his mother, leaving his brothers and sisters minors, the springing use would be absolutely gone, and this child’s remainder, and the remainders of *the other children, would have ceased to be base fees before they ceased to be contingent remainders, and the chance of the brothers and sisters to take by way of springing use would be gone, whilst they still might take by their alternate remainder; though ’tis obvious the settler intended, by the springing use, to give them an additional chance of taking, after their remainder was defeated by the vesting of the alternate remainder in the children. And in the case supposed, if the other children survived their mother and died before their father, minors, and without issue, the brothers and sisters could not take the estate by virtue of this limitation, but would only take the shares of the minors as heirs at law, and (if cross remainders among the children are not implied) the father would take the share of the child who had attained age and died before the mother, as its heir at law. So in any conceivable case that can be put, it is apparent that this limitation under the opposing construction, would not give the estate to the brothers and sisters of the wife as against the father, except in the very cases in which, without the limitation, they would have taken as heirs at law; for the moment any one child arrived at age, the springing use is gone and destroyed, and until some one child arrives at age, the brothers and sisters of the wife, as against the husband, are heirs at law of all the children. The position that this construction would denude this springing use of the only effect which the settler could have intended to produce by it, can scarcely need further illustration. In fact, this construction, or any other, save that adopted by defendant’s counsel, would give to the springing use the sole effect of giving the property to the brothers and sisters, if the children died minors leaving issue; for if they died minors without issue, the brothers and sisters of the mother would have taken the property without any limitation, as heirs at law. *But in support of this opposing construction, it is urged that it was natural to provide that the children, when they became of age, should have absolute fees, and be untrammelled owners of the property. Was it natural to provide that as soon as one became of age all should become untrammelled owners, though by such provision the very end and aim of the restriction upon their estates would be entirely defeated? But why should their mother have wished to remove the restriction upon the interest of any of them during their father’s life? During his life all their interests must continue dry remainders producing nothing unless sold—and it is scarcely probable that she would have approved of a sale of their remainders. Nor is it at all consistent with the provisions of the settlement to suppose that she would have wished to give them the power of devising the property to their father as soon as they arrived at age, for she has clearly shewn that she did not wish their father to take as their heir. There does not appear any sound grounds to suppose, that the settler was governed at all by the wish to make the children absolute owners of the remainders as they arrived at age, during their father’s life; and their attaining the age of twenty-one was fixed on in connection with John B. Armistead’s death, as the ultimate limit of the springing use, in obedience to the rule of law against perpetuities.

It is with great deference submitted, that the title tendered by Mr. Rust to Mr. Whiting is defective, even if Mrs. Armistead had no power of disposal, because, until John B. Armistead’s death, the springing use in favour of the brothers and sisters may take effect and defeat Mr. Rust’s title.

But conceding that Mrs. Armistead re*206served no power of disposition over the property by the settlement of 1796, and that the contingency upon which the springing use in favour of the brothers and sisters was to be ^defeated, was the arrival of> any one of the children to the age of twenty-one, the title tendered by-Mr. Rust is still, because of other defects, so pregnant (as to portions of the land) with doubtful and future litigation, that no purchaser could reasonably be expected to accept it, nor would a court of equity compel him to take it. The title is clearly unmarketable.

I shall content myself with merely pointing out these several defects, without entering into any elaborate argument as to each, to shew it to be fatal, my object being merely to prove that the title tendered is unmarketable by reason of the numerous and serious doubts and seeds of litigation involved in it.

It is submitted that, under the settlement of 1796, there were no cross remainders among the children.

1st. Cross remainders are never implied in a deed, whether of marriage settlement or any other, but must be expressed in definite and full terms of conveyancing. It was once held they could not be implied in a will, among more than two remainder-men, on account of the extreme complication of the estate, and other inconveniences attending them, when extended to more than two, and constantly augmenting in degree as the number was multiplied. Even now, since that positive bar to the implication of cross remainders among more than two, has been overruled, it seems still agreed that it requires a stronger implication of intention from the context of the will to raise them among three, or more than between two.

2dly. The limitation is not of several, or a plurality of remainders, nor of remainders of different estates, nor of separate parcels of the same estate, but of a single remainder of the same estate, limited to all the remaindermen as tenants in common. By the terms of the limitation, they take-nothing in succession, the one to the other; no remainder to one expectant on a remain • der to another, but all take together as companions. The ^interest of each was transmissible by descent, demise or alienation, like that of any other tenant in common.

3dly. The only remainder to the children is of no less estate than a fee simple; and cross remainders in fee are impossible. The only qualification of the fee existed but for a limited time, find that did not in the least affect any interest or estate, as taken by the remaindermen inter seipsos, but had relation exclusively to the conditional limitation over to the collateral branch. Before cross remainders proper could be introduced, there must be introduced some particular estate for each and every remainder; some estate inferior in quantity and quality, to a fee'simple. Now what may that be? None such can be supposed, that would not be merely arbitrary and a pure interpolation in the terms of limitation: in short, a reconstruction of the whole frame, the creation of a new estate, inconsistent with the estate expressly limited by the instrument itself. Cross remainders proper being out of the question, are quasi cross remainders, any limitation in the nature of cross springing uses, more admissible? The supposition of these infers some new or tacit condition upon which the fee. limited to each remainderman may be defeated, and pass over to others of them in succession. What may that condition be? There can be no hypothesis of one whit less arbitrary or less inconsistent with the estate actually limited by the instrument, than that of particular estates whereon to limit cross remainders. Any implication of the tacit condition, seems just as inadmissible as that of the tacit particular estates.

On the death of each child, then, its remainder descended to its heir at law. As these remainders were granted by the mother, she was one of the heirs of each child that died in infancy before her. It appears from the agreed facts that two of the children died infants prior to 1813. Mrs. Armistead, therefore, in 1813, as one of the heirs of these two children, was entitled to a *share of the land embraced by their remainders. The remainders to the children were the alternates of the remainder which Mrs. Armistead herself took under the settlement of 1796,— the children by their remainder, or she by hers, must have taken the estate upon the happening of the contingency on which these remainders depended as alternates. When, then, Mrs. Armistead by heirship became entitled to the remainder which was the alternate of her original remainder, (or to a share of it,) to the extent of the interest so descended, she became absolutely and in any event entitled to so much of the land at her husband’s death: that is, although, before the descent to her, both the remainder to herself and to the child were contingent, and therefore unalienable, yet, after the descent upon her, the two alternate remainders, thus uniting in one and the same person, necessarily coalesced and merged into each other so as to form a single vested remainder, which was therefore alienable. If this interest in the land was alienable, then it was, by the settlement of 1813, settled to the uses of that instrument, and no good title can be made to such portion of this land until the death of John B. Armistead. The defect in the title here pointed out, is a defect in an undivided portion of the whole tract, the position of which is, therefore, as yet, unascertained and unascertainable.

But suppose the court that tries this case should, after maturely weighing the objections to the title, be able to come to the conclusion that the title is a good one, and that no one of the alleged defects of title is fatal, does it follow that the court will compel the defendant to accept the title,. *207and invest his whole fortune in the purchase? By no means: such is not the principle upon which courts of equity decide such cases. Whatever may be the opinion of the court as to the invalidity of the objections to the title, its decree cannot quiet the title. Not having the parties before it who have now or *may hereafter have the right to assert claims founded on these alleged defects in the title, the court cannot,by its decree silence such claims, or prevent their being hereafter brought forward before the same or another court. Hence the just rule adopted by the courts of equity in such cases is, not to compel the purchaser to take a title unless the title is clear beyond serious doubt. If the objections are grave and serious in their character, and not frivolous,—if they are such as the court perceives might possibly prevail with another court, a court of equity will not compel the purchaser to complete the purchase, and thus risk (in this case) his whole fortune upon the contingency of a 'future court agreeing with the present upon a disputable question of law. The decisions shewing that such is the rule in courts of equity, are innumerable. Sharp v. Adcock, 4 Russell 374; Price v. Strange, 6 Madd. 159; Sheffield v. Ford Mulgrove, 2 Ves. jr. 526; Cooper v. Denne, 1 Ves. jr. 565; Atkinson on Titles, under the head of Titles Unmarketable on account of uncertainty in matter of law, and the cases of Roffey v. Shallcross, 4 Madd. 227, and Dalby v. Pullen, 3 Simons 29.

C. & G. N. Johnson, for the appellee.

Referring to the statement, it will be seen that two general questions arise: first, whether there are any valid objections to the title which the plaintiff has made to the defendant; and secondly, if there is any valid objection to the title, what is the measure of the plaintiff’s relief?

We will consider in the first place the objections to the plaintiff’s title.

First objection.—This objection supposes that under the marriage settlement deed of 1796, Ann B. Carter, during her coverture, had the absolute right to dispose of the whole estate, except that part of it settled upon her husband for the joint lives of himself and wife, so that the postnuptial settlement of 1813 was valid.

*This power we wholly deny, and that brings in issue the construction of the marriage settlement deed.

Mr. Marshall, in his written argument, disclaims any power in the court to correct any supposed mistake in the deed, and correctly confines the enquiry to the true construction of the deed, taking all its parts together.

We, on our part, concede that every portion of the deed, its preamble as well as its declaration of trusts, may be fairly taken into consideration in construing the import of each provision.

Following this guide, let us enquire whether there is any thing in this deed giving the power insisted upon. I

The deed, it will be seen, made in contemplation of marriage, contains as is usual a preamble reciting the intended marriage, and very briefly and imperfectly the marriage agreement, in pursuance ’ of which the wife’s property, real and personal, was to be conveyed to trustees; then follows the conveyance to trustees; and thirdly, the declarations of the trusts on which the property should be held. There is not a word in the declarations of trust from which the absolute power claimed for the wife could in any manner be inferred. But it is supposed that the recital of the marriage agreement contained in the preamble to the deed, considered with reference to the circumstances of the case, gives sufficient evidence that by the provisions of that deed the parties intended to reserve, and did reserve, to the wife the power of disposition now claimed for her. Mr. Marshall regards the meaning of the preamble as “unequivocal,” and as presenting “an irreconcilable conflict of intention,” with the clause of settlement.

Now what irreconcilable conflict, indeed what conflict at all, is there between the preamble and the declarations of trust? The preamble does not profess to recite the marriage agreement in detail, for the declarations of trust, which are surely as good evidence of the marriage agreement as the preamble can be, contain various ^provisions not alluded to in the preamble. And if it were even clear that the preamble did express an intent that was not effectuated by the declarations of trust, it could not properly be said that there was a conflict between the preamble and the declarations. The most that could be said would be, that the declarations of trust, which are intended as a guide for the administration of the trust subject, have not provided for the execution of a particular intent recited in the preamble.

But in truth there is no such variance between the preamble and the declarations of trust. There is no satisfactory evidence in the preamble that any absolute power of disposal was intended to be given to Ann B. Carter during her coverture. It is true that there is an absolute power of disposition in Ann B. Carter plainly recited in the preamble; it is, however, an absolute power of disposition, not during her coverture, but “notwithstanding her coverture;” and though in many cases it might be deemed hypercritical to draw a distinction between these two forms of expression, yet considering the context in which the expression “notwithstanding her coverture, ” is here found, and more especially considering the plain language of the declarations in trust, it is obvious that the draftsman of this deed did not intend to' give to Ann B. Carter any power of disposition over this subject during coverture. Observe how faithfully in the declarations of trust the provisions of the preamble are followed until you come to these words, “should be at the sole use and only disposal of the said Ann B. Carter, not*208withstanding her coverture.” Then, instead of following the preamble in its inappropriate and awkward language, the absolute power of disposition intended for the wife is given to her, not during coverture, but in the event only that she shall survive her husband, and then the power of disposition is given to her, not in the loose language of the preamble, but by making it the duty of the trustees to assign and transfer the property *to her absolutely. It is the contingency of her surviving her husband, then, which gives her the absolute power over the propel'. In that event the trusts are at an end. On the contrary event, if the husband survive, a new set of trusts are declared, first to the husband for life, then to the children, if any, in fee, and lastly to the brothers and sisters, in the event that there should be no children, or such children should die under age.

The preamble does not stand alone, in indicating the interests intended to be given to the several parties in the trust subject; and as the declarations of trust contain the plainest and most important provisions on this subject, surely it is as allowable to resort to the'declarations of trust in explaining the meaning of the preamble, as it is to resort to the preamble in explaining the meaning of the declarations. And by resorting to the declarations of trust, we find it clear, beyond doubt that the absolute power given to the wife, is to be exercised in the event only of her surviving her husband.

But admit the irreconcilable conflict; and then we insist, as a proposition, too clear to be illustrated by argument, that the declarations of trust must govern, and not the preamble. The preamble may be resorted to fairly to expound what is doubtful in the declarations of trust; but it is not admissible to resort to the preamble to render doubtful what is perfectly plain in the declarations of trust. No one can doubt that the marriage settlement deed intended to give and did give a life estate to the husband in case he survived the wife, a base fee to the children of the marriage, and a contingent estate to the brothers and sisters. But Mr. Marshall resorts to the preamble to prove that these interests were dependent on the wife’s failure to execute her power of disposition during the coverture. Not a word indicating such contingency is found in the declaration of trust. And the reasoning of Mr. Marshall to prove that it was probable *such a contingency was intended, we submit is wholly inadequate. It is true the property originally belonged to the wife, and that it might suit her convenience, and accord with her wishes to retain the absolute dominion over it as far as was prudent; but it is to be remembered that she was about to surrender that absolute dominion'; she was about to subject herself to the control of her husband, in whose prudence, either she or those who ■acted for her and with her had not entire confidence; that she was about to become probably the mother of children who could not safely be confided altogether to the paternal care; that she owned an estate real and personal, which she desired to withdraw, except to a limited extent, from his marital rights, and from the power of his influence; and that she must have felt that power most strongly, being willing to marry him notwithstanding the distrust of him which was entertained. Can it be believed that under these circumstances she and the prudent men, her relations and trustees, who acted with her, could consent that all the provisions in the deed, save only the husband’s interest during the coverture, should be placed within the power of the husband’s influence, or at the sole discretion of an unaided and unadvised wife, acting at the suggestion of any body who might- have an opportunit3r to take advantage of her, or at the suggestions of her own extravagance or imprudence? Could the husband himself have consented that the fortunes of his children should be exposed to the hazard of such chances?

It is supposed by Mr. Marshall, that this power of disposition during coverture might have been essential to secure to the wife the means- of subsistence after the husband should have dilapidated his interest in the subject during the coverture. We are by no means sure that under this deed the husband would have been permitted to dispose of this life interest so as to leave the wife without the means of support. But however that *may be, we insist, that so far from this consideration rendering it proper to give the'wife the absolute power of disposition, it only shews more strikingly the improvidence of reserving such a power. The improvident husband who had anticipated and spent the profits of the life estate, ought surely not to have been entrusted with the power of persuading his wife to spend the whole inheritance, and leave the issue of the marriage penniless. If the parties contemplated any such danger, the simplest mode of providing against it was, directly to restrain the power of the husband over the life estate, or to give to the trustees so much power over the inheritance, as to furnish to the wife and children support during coverture.

It was suggested in one of the written opinions exhibited with the bill, that the power of absolute disposition claimed for Ann B. Carter would give her an absolute fee simple, and that all limitations made upon that would be void. Mr. Marshall insists, that an absolute and unlimited power of disposal is not equivalent to an absolute fee simple, and that it is common in conveyancing to find dispositions of an estate in the event of a failure to exercise such an unlimited power. Tet it be remarked, that the power claimed here is not a mere power of appointment, with a limitation in fee to the donee of the power upon his failure to exercise it. The preamble does not profess to give any power of appointment, but simply declares, that the estate *209should be ‘'at the sole use and only disposal of the said Ann B. Carter, notwithstanding her coverture. ’ ’ The power of disposal then necessarily flows from the absolute use, and if the power operate any thing, it can only authorize Ann B. Carter to do that when a feme covert, which she might have done if a feme sole.

Mr. Marshall, in support of his position, refers to the authorities of Maundrell v. Maundrell, 10 Vesey 246; and Sugden on Powers, vol. 2, p. 34, No. 46, or vol. 16 of the Law Library, p. 20.

*These authorities by no means prove that an absolute power of disposition does not create an absolute fee- -much less do they prove that a limitation of an estate to the sole use and disposal of any one, does not create an absolute fee. The question in Maundrell v. Maundrell, was, whether a power of appointment was not consistent with an estate in fee, in the same person, given upon failure to appoint. And although the master of the rolls decided that they were incompatible, the power of appointment being sunk in the fee, yet the lord chancellor held a different doctrine, though he did not decide the question, as it did not arise before him. And the doctrine which he seemed to hold was nothing more or less than this : that as this mode of conveyancing had been adopted with the view of preventing the widow from being 1 dowable -of the estate of the donee, by suffering the purchaser from the husband to claim as appointee under the instrument creating the power, such power should be sustained for that purpose. This,' however, it will be seen, was the effect of positive and explicit provision ; the power of appointment being expressly given as a power of appointment, and the fee given only on failure to exercise that power. But in the case of Maundrell v. Maundrell, the power of appointment was not unlimited; the mode of exercising it was explicitly prescribed. At page 262, 10 Vesey, it will be seen that the power of appointment was to such uses as he should by any instrument in writing, sealed and delivered in the presence of two credible witnesses, or by his last will, appoint. Now such a power as this never was held to create an absolute estate.

In our case it is not a mere power of appointment, which is contemplated by the preamble, but a limitation of the estate, to be at the sole use and absolute disposal of Ann B. Carter; and the only question is, in what event it was to be at her sole use and only disposal. *The preamble, if it stood alone, might faintly and obscurely answer, in the event of her being a married woman; but the declaration of trust unequivocally answers in the event of her surviving her husband.

As to the effect of an absolute power of disposal in giving the absolute fee and rendering void all limitations to take effect upon the failure of such disposition, see Riddick v. Cohoon, 4 Rand. 547, and the cases there cited; and judge Green’s opinion in Madden v. Madden’s ex’ors, 2 Leigh 383, and the cases cited by him.

The force of Mr. Marshall’s reasoning from the form of the deed as indicating an intent to introduce a power of disposal in favour of the wife during the coverture, is not perceived. We perceive no intent in the preamble to give to the wife any other power of disposal but that which is expressly given her in the et'ent of surviving her husband. The obscure words, “notwithstanding her coverture,” lead to no rational conclusion that a power of disposition during coverture was intended to be given to the wife. Nor do the old forms to which Mr. Marshall refers, seem to lead to any such conclusion. But if they throw any light upon this subject, they would rather indicate that the draughtsman in our case has followed in the preamble an old form appropriate to the occasion on which it was used, but inappropriate to the marriage settlement which was then to be executed.

In construing this marriage settlement as denying to the wife any power of disposal during coverture, we are not in any manner indebted to inferences or to probable intention. We follow the plain letter and obvious meaning of the deed itself. We say that the provisions of the deed are consistent with the natural affections, consistent with the relations of the parties, and all consistent with each other. We do not say that the wife preferred her brothers and sisters, or even her own children, to herself, but we say, under the authority of this deed, *that she did pi'efer her brothers and sisters, and her children, in the events contemplated, to the reservation of any power in herself during coverture, to disturb the provisions made for them in the deed. We say so, because the deed has said so, and (we might add), because reason tells us it was wise to do so; for in truth, the reservation of such power to the wife would have been practically its reservation to the husband. We do not say that the deed intended to make a provision for the children, and for the brothers and sisters, wholly independent of the wife’s power, because the deed has told us expressly the reverse; it tells us that if the wife survive, her power shall be absolute, and of course, all the rest of the limitations void. But it does not in the remotest degree follow, that because she meant to reserve to herself the absolute power in the event of her survivorship, she therefore meant to reserve that power, or any power at all during her coverture. Indeed the argument of the plaintiff himself, founded on the declared intent to protect the property from the power of the husband, ought to be conclusive to prove that it could not be intended to subject that property to the irresistible influence which the husband would probably preserve during the coverture.

In short, we perceive no colour of reason for the claim of power, which is indispensable to support the deed of 1813.

*210Proceeding then to the second objection to the plaintiff’s title, let us consider whether, under the deed of marriage settlement, the demise to the children, who have long since attained their full age, is vested absolutely, or is yet contingent upon the death of the children in the lifetime of the surviving husband, either with or without issue. We all agree that the remainder, limited to the children of the marriage, gave them a vested remainder in fee, as they were successively born, and we all agree that the interest of the children was *a base fee, liable to be defeated by the death of all the children under age. Mr. Marshall, however, contends that it was, moreover, liable to be defeated upon the death of all the children, without issue, at any time, during the life of the surviving husband. We controvert this proposition, and insist that when the children of the marriage attained full age, their estates became absolute estates in fee simple. What says the deed? That at the death of John B. Armistead, the estate shall descend to the child or children, if any, “and their heirs in equal portions.”—“But in case they have no child, or such child die before age, then the property shall go to the brothers and sisters and their heirs, to be equally divided between them.” Now one would suppose, that with reference to the question we are now considering, this plain language would defy criticism or construction. There are two events, and two events only, pointed out, in which the property before limited to the children and their heirs, shall go over to the brothers and sisters; the one is, there being no children of the marriage; the other is, the death of the children under age. There is not a word that intimates another event, that is, the death of the children during the life of the surviving husband. It would require a bold effort of construction to superadd to this limitation, one which seems never to have been thought of by the contracting parties. If the question were not as to the time at which the event must happen, in order to give birth to the springing use in favour of the brothers and sisters, but as to the event itself, there might be at least plausible, if not substantial ground for fair criticism and legal construction. If the question were, whether the settlement contemplated the dying under age simply, or the dying under age without heirs or without issue, (heirs and issue in such a connection being merely synonymous,) then it might be reasonably contended that the event on which the limitations over to the brothers and sisters took effect, *was not simply the death of the children under age, but their death under age and without issue. If this were the case of a will, or of marriage articles only, this would be the-unquestionable construction, in order to ávoid the unnatural conclusion that 'the parent intended to give the estate to brothers and sisters, in preference to her own descendants. And the cases of Spalding v. Spalding, Cro. Car. 185; Kentish v. Newman, 1 P. Wms. 234; Targus v. Puget, 2 Ves. sen. 195; with others that might be cited, both from the English and Virginia authorities, would sustain this construction. In this case, where we are construing a deed, with its declarations of trust, it may not be so clear that we could take this liberty with the language of the deed. We think, however, that the intent of the settlement is sufficiently obvious to justify' this construction of its words, and for the sake of the argument, we are willing to concede it. Bet us, then, interpolate the words, and the settlement will read thus: “But in case they have no child, or such child die before age without issue, then the property shall go to the brothers and sisters.” This change of phrase would make not the slightest difference in the question," whether the event on which the brothers and sisters -were to take, was the death of the children without issue, under age, or was their death without issue, either under age, or during the life of the surviving husband; still, to defeat the vested estate after the children had attained full age, upon their death during the life of the surviving husband, would be superadding a condition not expressed, and in no wise indicated by the deed.

To give the interpretation insisted on by Mr. Marshall, we must read the limitation thus: ‘ ‘But in case they have no child, or such child die without issue, before age, or at the death of John B. Armistead,” then the property shall go over. And Mr. Marshall says, that to interpolate these words, “or at the death of John *B. Armistead,” would be merely to repeat words already used in the declaration of trust; but is it not perceived that it would be to repeat them in a sense and for an object wholly different from that in which they had been formerly used. After limiting a life estate to John B. Armistead, the deed had declared that “at his death,” the property should pass to the children, and if they died under age, it should pass to the brothers and sisters. Every one admits that these words, “at his death,” when first used, were not intended to indicate the time when the property should vest in the children; that on the contrary, the remainders did vest at the births of the respective children. How then, can we be justified in interpolating these words, for the purpose of defeating the vested remainder, upon an event wholly different from those on which the deed declares it shall be defeated?

Mr. Marshall seems to suppose, that the court in construing an event on which a vested remainder might be defeated, would be less favourable to the remainderman, than they would be in construing the event upon which the remainder was to vest. And that is to say, that,.they might.be more fa.vqurable to collaterals or strangers to whom a springing use might be. limited, than they would be to children to whom a remainder was limited. We think it more rational to draw an inference precisely the reverse, and that more care should be taken to prevent *211the defeat of a remainder once vested, than would be taken originally to vest it. The great object of vesting estates as early as consistent with the intent of the donor, is, that the donee may be enabled to know what is his and what is not, so that he may regulate accordingly his own conduct in life, *may*accommodate his expenses to his fortune, judge of the propriety of contracting marriage, and of the prudence of making family settlements and dispositions by will. All these considerations would certainly recommend as strongly the protection of '“'vested remainders from defeat by uncertain contingencies, as it could the original vesting of such remainder. We do not pretend to say that a plain provision for divesting a remainder would not be regarded by the courts, but we do insist that such a provision, depending upon doubtful construction, and more especially, such a provision inferred against the plain words of the settlement, is wholly inadmissible. Mr. Marshall attempts to derive some aid to his construction, by shewing that the limitation to the brothers and sisters, was to preserve the property in the blood of the donor, and to preserve it free from the control of the husband, and to that end he quotes the last clause in the declaration of uses in these words,—‘ ‘to the intent that the same may not be at the disposal of, or subject to the control, debts, forfeitures, or engagements of the said John B. Armistead, but that the same shall be and remain in the manner above limited.” And he argued that this great object will be defeated if you permit the children’s estates to vest absolutely during the life of their father, for that if one of them should die of full age intestate and without issue during the father’s life, the father would inherit the property from him.

In answer to this, we say there is nothing in the deed to shew, even remotely, that the object of the settlement was to prevent the father from inheriting from his children. The estate was given to them and to their heirs; and whenever they should die under circumstances in which the law would make him their heir, there is no reason to believe that it was intended he should not inherit from them. Their heirs were to take, unless they all died under age and without issue. When the children had become sui juris, had acquired the absolute dominion over the property, might sell it to whom they pleased, might devise it to whom they pleased, might give it all to their father during their lives,—what reason is there to suppose that there was an intent *to prevent him from taking under the will which the law makes for every man who dies intestate, —what reason to prevent him from taking as heir, who might have taken as vendee, donee or devisee? The recital of intent that the property should not be at the disposal, or subject to the control of the husband, but should remain in the manner above limited,—is a simple declaration that the marital rights of the husband were all to be postponed to the declarations made in the deed. It does not mean that the husband shall have no interest in the property, no control over it,—for a life estate in it is expressly given him. It does not mean that he shall not purchase it from his children, or shall not inherit it from them after they have acquired the fee simple interest. These are none of his marital rights, and are not acquired by him under the deed, but independently of it.

Mr. Marshall has argued as if the limitation to the brothers and sisters had the sole object of preventing the husband from inheriting any of this property. There is no such object declared or. implied. All that is declared or implied is, that upon the death of the children under age and without issue, the brothers and sisters shall be preferred to all other persons, not to the husband only.

What Mr. Marshall has said respecting the springing uses, the contingent remainders, and the alternate remainders, we submit is rather ingenious than correct, rather calculated to confound the reader than explain the deed. According to our construction, the settlement itself is very simple. It gives to the children born of the marriage, and to their heirs, a fee simple, not absolute, but base or determinable ; it declares that that fee simple shall be defeated, and pass over to the brothers and sisters upon one event, and one only, viz : the death of all the children under age and without issue. After the estate had once vested in the children, it could be defeated only upon that event. But Mr. Marshall says, *the most striking result of this construction would be that if one of the children arrived at age during Mrs. Armistead’s life, though such child died before its mother, leaving his brothers and sisters minors, the springing use would be absolutely gone, and this child’s remainder, and the remainders of the other children, would have ceased to be base fees before they ceased to be contingent remainders, and the chance of the brothers and sisters to take by way of springing use would be gone, whilst they still might take by their alternate remainder. We doubt whether we correctly understand this position. It is certainly true, that in the event supposed, that of one of the children attaining full age, and then dying in the lifetime of his mother, leaving his brothers and sisters minors, the limitation to the brothers and sisters of Ann B. Armistead would be defeated forever, and the estates of all the children of the marriage then in being would be remainders absolutely vested. And this accords with the simple provisions of the deed, because by it the children have vested remainders in fee, and none of those remainders can ever be divested but by the death of the children under age. The springing use can never arise, because the event on which it was to arise can never i occur, and for the same reason the vested *212remainders can never be defeated. But the difficulty is in "perceiving how the anomalous case supposed by Mr. Marshall can ever occur. How would the estates of the children cease to be base fees before they ceased to be contingent remainders, when according to the interpretation of us all they ceased to be contingent remainders upon the birth of the children? How would the chance of the brothers and sisters to take by way of springing use be gone, whilst they still might take by their alternate remainder? Their alternate remainder, if any they ever had, was gone by the same event, the birth of children, or at latest by the event of one of the children having attained,full age.

*ITpon the whole, on this point, we submit that the settlement did not look beyond the contingency of the children’s dying under age, as that upon which the springing use to the brothers and sisters was to arise. Besides the plain words of the settlement, we might say with confidence that the reasons for making the estates of the" children absolute upon their attaining full age, are infinitely stronger than any which can be imagined for making the estates contingent during the life of their father.

The third objection to the plaintiff’s title requires us to consider whether under the marriage settlement deed there were cross remainders or cross limitations to the children of the marriage, so that upon the death of each under age, his aliquot part passed to the survivors. If this were not so, but the children were only tenants in common, so that upon the death of each under age,his aliquot part would descend to his heirs, then we admit that the aliquot part of the two children who died under age in the lifetime of their mother, passed to the mother, brothers and sisters as. their heirs, so that the parts thus acquired by the mother, passed by her deed of September 1813; and thus, to that small extent, the plaintiff’s title is still contingent.

If Mr. Marshall speaks of cross remainders in their technical sense, ' we are not disposed to controvert his position. There are, in truth, no such remainders limited here. The base fee vested in the children, and the limitation over to the survivors upon the determination of that fee, would ■ not technically constitute cross remainders. If it had been in terms provided by the deed, that upon the death of each child under age and without issue, his portion should pass to the surviving children, and upon the death of all the children under age and without issue, the whole estate should pass over to the brothers and sisters, this would not have constituted technical cross remainders, for there would have been *no technical remainder in the case. But there can be no doubt that such limitations would have been valid, in a will or in a deed operating under the statute of uses. They would have been cross limitations of the use, and quasi cross remainders;. and they are habitually called cross remainders in familiar legal language. And we insist, that upon the true construction of this deed, such cross limitations are well created. It is true they are not created in express terms, but they arise from necessary implication—the estate is given to the children as tenants in common, and it is provided that upon the death of them all under age, the estate is to pass over to the collateral relations. It is conceded, that by the true construction of this deed, the [imitation depends not upon the dying under age simply, but upon the dying under age without issue. There are two objects, then, provided by this deed in express terms: the one is, that the children shall take estates in fee, as tenants in common ; the other is, that upon the death of all the children under age and without issue, the estate shall pass over to the brothers and sisters. How can this last object be effected without giving to the children cross remainders? There were seven children of the marriage, one dies under age and without issue, does his aliquot part pass to his heirs, including his mother? Then five more of them die under age and without issue, does the part of each pass to his heirs? The seventh, and last, then dies under age and without issue, the precise event in which the limitation over to the brothers and sisters was to take effect, what then is to be done with the estate? We must recall the estate from the various heirs into whose hands it shall have passed, in order that the brothers and sisters may take it. Does not this shew, in the most conclusive manner, that the brothers and sisters were preferred to all other persons except the descendants of the grantor? If such a provision as this had been found in a will, or in marriage articles, there is not a shadow of doubt that the children *would have taken cross remainders. As conclusive authority upon this point, we refer the court to 2 Powell on Devises, chap, xxxi, p. 604 to"623 ; 22d vol. Haw Bib. p. 323 to 333, and the numerous cases there cited.

It is said that cross remainders will not be implied in a deed. But for this general proposition there is no satisfactory authority. In Preston on Estates, p. 94, it is said, “These remainders are common to, and may be raised effectually under, deeds at the common law, limitations of use, and limitations by devise. In deeds they cannot arise without express limitation, or at least without words expressing an intention to give remainders of this sort.” Eor this Preston quotes no authority; but we admit that his own name is very respectable authority.

But what is his meaning? He gives us three modes of raising these cross remainders ; one by deeds at common law; a second by limitations of use; and a third in limitations by devise. He then tells us that in deeds they cannot arise without express limitation. Can we fairly understand him here to mean any other deeds than *213deeds at the common law, in contradistinction to deeds operating by way of use? We know the vast distinction between these two modes of conveyancing with respect to their power and their efficacy. To say that they could not arise in any deed except by express limitation, would be to contradict the well established doctrine that they may so arise in marriage articles. Eor marriage articles are almost always by deed.

But suppose he did mean to embrace all deeds; yet he does not say that in deeds they cannot arise without express limitation,^—that they cannot be implied, from the various provisions of the deed; for he distinctly qualifies the declaration that they cannot arise without express limitation, by adding “at least without words clearly expressing an intent to give remainders of this sort.”

Now what are the words in our deed which do clearly express an intent to give remainders of this sort? They *are the words that give the tenancy in common in the whole subject, and limit over that whole subject upon terms which distinctly shew that the brothers and sisters were to be preferred to all others but descendants.

In 2 Preston on Abstracts, p. 109, the doctrine is expressed thus: “In deeds, except in reference to executory trusts of marriage articles, cross remainders cannot arise without express words of gift creating the cross remainders.”

Now here there are excepted from those deeds which require express words to create the cross remainders, deeds containing executory trusts and marriage articles; thus corroborating the interpretation which we have given to the word “deeds,” as used in Preston on Estates. Is not ours the case of executory trusts? Is not the legal title here necessarily outstanding as long as any of the trusts remain contingent? Is not that outstanding legal title necessary to feed the various uses as they arise, whether by way of contingent remainder or springing use?

Why should we be so squeamish in refusing to construe this deed so as to make it subservient to the obvious intent of the grantors? Even in common law conveyance instances are not wanting of estates implied to subserve an intent much less obvious than the intent here. Estates tail are often implied in such deeds. See 2 Preston on Estates, p. 474-5.

If this be so in England, how much more ought it to be so in this country, where by our earliest statutes the rigour of common law conveyances is much relaxed. Witness the act of conveyances dispensing with words of inheritance in conveyances in fee.

We submit, then, that upon the death of the infant children in the lifetime of their mother, their portions of the estate passed to their surviving brothers and sisters, not as heirs, but as purchasers, and that their mother took nothing in them which she could convey.

*We have now considered the objections to the plaintiff’s title, made by the defendant; and we think there is not one of them that casts even a cloud upon the title.

But if we are mistaken in this, and some of the objections should be regarded as valid; nay, if all of them should be sustained by the court, we still submit that the plaintiff should be compelled to execute the contract on his part. He has accepted the deed containing covenants of warranty. He took possession of the land, paid part of the purchase money, and might have held undisturbed possession but for his own fault. No one evicted him, or even threatened him with eviction. The objections to the title are all of them contingent, and most of them lie in easy and adequate compensation—and against them all adequate indemnity might be given.

Shall the defendant, then, after having taken the title and enabled himself to profit by it, if he had deemed the purchase advantageous, be permitted to throw back upon the plaintiff the title dishonoured by repudiation, and by that very dishonour rendered unmarketable? We think not. We think, that this should not be regarded as a case in which the plaintiff is seeking a specific performance under circumstances which would render a serious doubt about the title a sufficient ground for refusing such specific performance. We think that this should rather be regarded as a case in which the plaintiff comes into court to enforce his lien upon the land for the purchase money. He might certainly have recovered his judgment at law for the purchase money, and driven the defendant into equity to obtain relief. But here both parties have voluntarily come into a court of equity for the purpose of ascertaining their rights, and the defendant has no just claim to the advantage of one who never having accepted the title, is brought into court in invitum to be compelled to accept it.

*

This and the two following cases were not printed with the other cases decided at Lewisburg, because the records did not come into the possession of the reporter in time.

†

Contingent Remainders—Springing or Shifting Use —Persons Not in Esse.—See principal case cited in Ocheltree v. McClung, 7 W. Va. 243.

By the court.

Affirm the decree.