#### *Hansford and Wife and Others v. Elliott and Wife and Others.

December, 1837,

Richmond.

Wills — Construction—Words oí Survivorship — To What Period Referred — Case at Bar. — Testator, after bequeathing the residuum of his estate to his wife during life or widowhood, bequeathed, that the whole of his personal estate, at the death1 of his wife, should be equally divided among his surviving children thereinafter named (naming five) and in case his wife should then be with child, that child should have an equal part of his personal estate with the rest of his children before named: Held, that the word surviving refers to the death of testator, not that of tenant for life, and so children of testator who survived him, but did not survive tenant for life, took vested interest in remainder.

Same — Same—Same—Same.*—Words of survivorship, in such cases, are always to be referred to the period of the testator’s death, if no special intent appears to the contrary.

Persons under Disability — Limitation to Suits by.— Persons claiming rights of personal ‘property, being under disability of infancy or coverture when .their rights accrue, may prosecute any remedy in equity they are entitled to, by prochein amy, at any time while the disability continues, no matter how long ; or, in their proper persons, within five years after the disability removed ; the right to such remedy being within the saving of the statute of limitations, 1 Rev. Code, ch. 128, § 12.

Executors De Son Tort† — Liability—Statute oí Limitations. — Ex’ors in their own wrong are liable to account for the property of the decedent to his *40distributees or legatees, like other ex’ors, and cannot rely on the statute of limitations to protect them from such accountability.

Limitation of Actions — When Statute Begins to Run against Claim for.Decedent’s Estate.* — The statute of limitations does not begin to run against a claim asserted for a decedent’s estate, till a qualification of an ex’or or adm’r of the decedent.

Chancery Practice — Suit to Assert Rights in Decedent’s Estate — Parties.†—Distributees of a decedent may maintain a bill in equity to assert their rights in the decedent’s estate, though they cannot have distribution thereof without having the ex’or or adm’r of the decedent before the court as a party in the cause.

Robert Manson of York county made his will in October 1785, having, at the time, a wife and three sons and two daughters, and his wife was pregnant of another child — and by his will, after devising a parcel of *land to each of his three sons, he devised and bequeathed as follows: “My will and desire is, that after my just debts and funeral charges are paid, that the remainder of my estate, of what kind, quality or condition soever, with the profits thereon arising, for the support and comfort of my loving Mary Manson, and my children hereafter mentioned, during the time she continues my widow, but in case she marrieth, then to have but one third part of my estate ■during her life; and further my desire is, that she continue on the plantation I now live on ;• and at her death, for the whole of my personal estate to be equally divided amongst my surviving children hereafter named, viz. Anna Manson, John Manson, Polly Manson, Thomas Manson and Robert Manson ; and, in case my wife be now with child, for that child to have an equal part of my personal estate with the rest of my above mentioned children.” The testator’s wife was pregnant of a daughter, who was called Elizabeth, and who afterwards married Thomas Hansford. And between the date of the will and the testator’s death, he had, besides Elizabeth, two other children, named Richard and Peter. The testator died in 1796. His will was proved and recorded in the month of September in that year ; and his wife qualified as the executrix. All the testator’s children named in his will, and all his afterborn children, were living at his death, except, perhaps, his son Robert; as to whom the bill in this cause stated that he died in his father’s lifetime, and it was not denied; but there was some evidence that made it doubtful whether- he died before or shortly after his father; however, he died in infancy, and the time of his death had no effect on the rights of the parties.

The testator’s widow, Mary Manson, died in 1814 ; leaving only two of the testator’s children her surviving, namely, his daughter Elizabeth (now the wife of Hansford) of whom his wife was pregnant when the will *was made, and his afterborn son Peter Manson. All the other children of the testator, who survived him, but did not survive the testator’s widow, had been married, and left children. His daughter Anna Manson married John Haughton, and died in 1806, leaving her husband her surviving, and a daughter named Mary, who married Robert Jennings. His son John Manson died in 1801, leaving two children, Elizabeth and Robert; Elizabeth married Kemp Elliott ; Robert died in 1824, leaving a widow Mary (who is his administratrix) and two children, John and Edward, who were infants when this suit was brought. His daughter Polly Manson married James Moss, and died in 1808, leaving her husband her surviving, and two children, Mahala and John Moss, infants when this suit was brought. And his son Thomas Manson died in March 1813, leaving three children, two of whom, Wilhelmina and Maria, are yet living, and were infants when this suit was commenced.

About a year after the death of the testator’s widow, namely, in November 1815, the testator’s son Peter Manson and Thomas Hansford and his wife Elizabeth obtained an order from the county court of York, appointing commissioners to divide the slaves of the testator which had been held by his widow during her life under his will, between them, the only children of the testator that survived the widow ; and in December 1815, the division was made between them accordingly, to the exclusion of the families of the testator’s other children, who survived him, but died before his widow.

In June 1825, the bill in this cause was exhibited, in the court of chancery of Williams-burg (whence it was transferred to the circuit superiour court of James City), by Kemp Elliott and Elizabeth his wife, daughter of the testator’s deceased son John Manson, of whom the bill stated there was no known representative, — Mary the widow and administratrix, and John and Edward the infant children, of Robert the deceased son of the same *John Manson,- — -Robert Jennings and Mary his wife, the daughter of the testator’s daughter Anna Manson (afterwards mrs. Haughton) of whom it was stated there was no known representative,— Wilhelmina and Maria Manson, infant children of the testator’s deceased son Thomas Manson, of whom it was stated there was no known representative, — and John and Mahala Moss, infant children of the testator’s deceased daughter Polly Manson ■ (afterwards mrs. Moss) of whom it was stated there was *41no known representative, — against Thomas Hansford and Robert Sheild in his own right, and as administrator of Peter Manson, who it was alleged died in 1824, intestate, and without wife or child. The testator’s son Richard, who was born after the making of his will, was not made a party, the bill stating that he died in 1814, intestate, without wife or child, and had no known representative.

The bill set forth all the facts above stated ; and then alleged, further, that the defendant Hansford had sold and disposed of all the slaves which he acquired by the division of December 1815, except eight, and of these eight he had conveyed five to Samuel Sheild by deed of trust to secure a debt to the defendant Robert Sheild ; that the trustee had advertised those five slaves for sale, so that the same, if sold, might not be within reach of process of the court; and that the plaintiffs apprehended, that Hansford would sell and dispose of the other three slaves still held by him, and so put them beyond reach : that the slaves which Peter Manson acquired at the division of December 1815, were now in the hands of the defendant Robert Sheild, his administrator; but that Sheild intended to sell some of them to discharge debts due from his intestate’s estate. The bill, therefore, prayed an injunction, in the first place, to restrain the defendants from selling the slaves, and that security should be exacted from them to have the property forthcoming, or that it should be committed to *the care of the marshal of the court; and finally, a decree for the just shares to which the plaintiffs were entitled of all the property of the estate of the testator Robert Manson that had come to the hands of the defendants, and of the profits thereof, of which accounts were asked.

The injunction was awarded.

Hansford and wife answered, that before this suit was brought, Hansford had sold two of the slaves mentioned in the injunction, and the other had run away. They insisted, that the division of December 1815 was made according to the just rights of the parties under the will of the testator Robert Manson : they relied on Hansford’s possession of more than five years, and on the statute of limitations ; and submitted whether there were proper parties before the court.

The defendant Sheild made default; and the bill was taken pro confesso against him.

The plaintiffs afterwards filed an amended bill, shewing administrations, granted since the filing of the original bill, of the estates of the several decedents therein mentioned as having no known representative : that the estate of Anna Haughton was now represented by the plaintiff Jennings ; that the estate of John Manson deceased had been recently committed to the sheriff of Warwick, the estate of Thomas Manson deceased to the coroner of Norfolk, and the estate of James Moss, the deceased husband of Polly Manson, that of the testator’s son Richard Manson, and that of Robert Manson the elder (the testator), had been committed to the sheriff of York ; all of whom were made parties defendants.

The sheriff of York, administrator of the three estates above mentioned, put in an answer, which, however, was merely formal. As to all the other defendants, the bill was taken pro confesso.

It appeared, that administration of John Manson’s estate was granted in 1801 to one Camm, who died before *mrs. Manson, the testator’s widow, as early as Pebruary 1808, and thenceforward there was no personal representative of John Manson’s estate, till it was committed to the sheriff of Warwick since the commencement of this suit ; that there was never any personal representative of Thomas Manson’s estate, or of that of Anna Manson who married John Haughton, till after the commencement of this suit, but Martha Haughton took administration of John Háughton’s estate in April 1810; that there never has been any personal representative of Polly Manson who married James Moss ; that the only personal representative of James Moss, previous to the commencement of this suit, was Peter Manson, the same Peter who appropriated half of the estate of the testator Robert Manson to his own use, and whose representative, the defendant Sheild, the bill seeks to charge on account of that appropriation ; and that the same Peter Manson was the only personal representative of his deceased brother Richard Manson.

By interlocutory orders in the cause, the defendants Hansford and Sheild were directed to surrender to the marshal of the court, the slaves by them respectively held, (being either slaves mentioned in the report of the division of December 1815, between Peter Manson and Hansford and wife, or the increase thereof); and the marshal was directed to hire those slaves out from year to year, take bonds with security for the hires, collect the same when due, and deposit the proceeds of collections in the bank of Virginia at Norfolk. Hansford and wife were ordered to render accounts of all the slaves and other property of the estate of the testator Robert Manson, which came to their hands, with an account of the value of what had been sold by them, the hires of the slaves they had kept, and interest on the money received for those sold. And Sheild, as administrator of Peter Manson, was ordered to render similar accounts, together with an account of administration of his intestate’s estate. *The accounts ordered were taken accordingly, and reported by the commissioner of the court. And the marshal returned an account of the hires of the slaves by him collected.

The cause coming on to be heard on the report of the commissioner, to which there was no exception, the same was approved and confirmed. And the court appointed commissioners to sell the slaves, and to deposit the proceeds of sales in the bank of Virginia at Norfolk; and further ordered and decreed (without intending to settle the principles of the division) that the commissioner of the court should make a special statement, dividing the balances reported to be due from Hansford and Sheild the admin*42istrator of Peter Manson,- and the amount of hires collected or to be collected, among all the parties entitled, according to their apparent interests ; charging the two daughters of Thomas Manson deceased with 400 dollars, the agreed value of advancements to their said father from the estate of his father the testator Robert Manson.

The sale was made in pursuance of the order, and a report thereof returned. And in this state of the case, the defendants applied by petition to this court for an appeal, which was allowed.

The cause was argued here, by Johnson for the appellants, and by Robinson and Harrison for the appellees.

I. The first and main point debated, was the question upon the construction and effect of the will of the testator Robert Manson : Whether, in the bequest therein contained, that after the death of the testator’s wife, the whole of his personal estate should be divided among his surviving children thereafter named, the word surviving referred to the death of the wife, when the division was to be made ? or to the death of the testator ?

The appellants’ counsel contended for the former construction ; and he insisted, that it was a general principle *of construction applicable to all cases like the present, that words of survivorship should be referred to the period of division and enjoyment, unless a special intent appeared to the contrary, according to the decision of sir John Leach in Cripps v. Wolcott, 4 Madd. Ch. Rep. 11.

The counsel for the appellees maintained, that the words of survivorship, here, had reference to the death of the testator. They denied, that the general principle of construction stated by the vicechancellor in Cripps v. Wolcott, was sustained by authority : and they insisted, that the general principle was the direct reverse; that, in bequests like this, the words of survivorship must be referred, not to the death of the tenant for life when the division was to be made, but to the death of the testator, so as that the legacy should vest in all the legatees that survived him, unless there was something special to shew that the period of division was intended.

The following authorities were cited and examined in the argument: Brograve v. Winder, 2 Ves. jun. 634 ; Russell v. Long, 4 Ves. 551; Daniell v. Daniell, 6 Ves. 297; Jenour v. Jenour, 10 Ves. 562 ; Newton v. Ayscough, 19 Ves. 534; Hoghton v. Whitgreave, 1 Jac. & Walk. 146 ; Browne v. Ld. Kenyon, 3 Madd. Ch. Rep. 410, in which cases, the construction that referred the words of survivorship to the event upon which the division was to be made, prevailed. Earl of Bindon v. Earl of Suffolk, 4 Bro. P. C. 574; Wilson v. Bayly, 3 Id. 195 ; Roebuck v. Dean, 2 Ves. jun. 265 ; Perry v. Woods, 3 Ves. 204; Maberly v. Strode, Id. 450 ; Brown v. Bigg, 7 Ves. 280 ; Edwards *v.*Symonds, 6 Taunt. 213, 1 Eng. C. L. Rep. 361; Doe d. Long v. Prigg, 8 Barn. & Cress. 231 ; 15 Eng. C. L. Rep. 206 ; Drayton v. Drayton, 1 Desaus. 324; Bass v. Russell, 1 Taml. 18, 5 Cond. . Eng. Ch. Rep. 263, cases in which the construction that referred the words of survivorship to the death of the testator, prevailed. But the counsel for the appellees insisted, that whatever might be the general rule of construction, or *whether there was any such general rule or not, upon the plain intent of this will, the testator’s children who survived him, took a vested interest in the' remainder expectant on the wife’s life estate; in arguing which proposition, they cited Walley v. North, 3 Ves. 364; Halifax v. Wilson, 16 Ves. 168; Woodstock v. Shillito, 6 Sim. 416 ; 9 Cond. Eng. Ch. Rep. 337. They also cited the opinion of Denman, C. J., in Doe d. Pilkington v. Spratt, 5 Barn. & Adolph. 731, 27 Eng. C. L. Rep. 166, that “the law favours the vesting of estates, and that it is an established rule of construction, not to read a limitation in a will as being a contingent remainder, unless such clearly appears to have been the testator’s intention ; if it admits of being considered a vested remainder, it will always be read as such ;” and to shew that this rule was peculiarly applicable to bequests of personal estate, and especially to residuary bequests, they cited Bolger v. Mackell, 5 Ves. 509. So, they said, in the construction of deeds of settlement, the courts always strove to find a construction whereby descendants should be provided for; Woodstock v. Duke of Dorset, 3 Bro. C. C. 569; Hope v. Ld. Clifden, 6 Ves. 499; Powis v. Burdett, 9 V es. 428 ; King v. Hake, Id. 438; Howgrave v. Cartier, 3 Ves. & Beam. 79 ; Perfect v. Ld. Curzon, 5 Madd. Ch. Rep. 442 ; Maitland v. Chalie, 6 Id. 244.

II. The counsel for the appellants contended, that, if the construction of the will under which the appellees claimed was correct, yet, as their rights as next of kin and distributees of their deceased parents, accrued in 1814 when the testator’s widow died, and the possession of the defendants commenced in 1815, and this suit was not brought till 1825, the statute of limitations was a bar to it. The objection supposed that the appellees could, as next of kin and distributees, maintain this bill; for if they could, he said, it did not appear that they, or at least several of them, were under any legal disability which would avoid the operation of the statute as a bar to their claim and suit.

*The counsel for the appellees answered, that Peter Manson, the intestate of the defendant Sheild, was himself the representative of Richard Manson and James Moss, so that the statute could,not be-a bar to the claim of their distributees ; and that the other parties were all under disabilities of coverture or of infancy at the time their title accrued, which prevented the bar of the statute as to them. Besides, they said, the statute of limitations could not have been a bar to a suit brought by the administrators of the decedents whose next of kin and distributees had filed this bill, because the statute could not have begun to run against the estate of those decedents, till there were administrators to represent them ; which was not the case till after the commencement of *43this suit, except as to two of them, of whom Peter Manson himself, whose unjust possession is complained of, was the administrator. Murray v. East India Company, 5 Barn. & Ald. 204, 7 Eng. C. L. Rep. 66; Clark v. Hardiman, 2 Leigh 347. And as the statute would have been no bar to the suit of the administrators, so it was no bar to the suit of distributees, who claimed through the administrators.

III. The appellants’ counsel objected, that the next of kin and distributees of the deceased legatees could not maintain this bill to recover personal property belongingto the estates of those decedents : that administrations should have been taken of the estates of the decedents, and the claim should have been prosecuted by the administrators.

The answer was, that the next of kin and distributees could maintain the bill, though they could not have a decree for distribution among them, without making the personal representatives of the decedents parties ; and here, the personal representatives were con-vented before the court as parties defendants. Frazier v. Frazier’s ex’ors, 2 Leigh 642 ; Samuel v. Marshall, 3 Leigh 567.

*

WilIs — Construction—Words of Survivorship after Life Estate — To What Period Referred. — Notwithstanding the conflict which seems to exist among the English cases on the subject, it is a well-settled rule of construction in Virginia — established by an unbroken line of authorities commencing with the principal case — that, after a bequest or devise of an estate for the life of the first taker, words of survivorship in a will are always to he referred to the ¡period of the testator’s death, when no special intent appears to the contrary. As authority for this rule, the principal case was cited with approval in Martin v. Kirby, 11 Gratt. 67, 69, 71, 72, 73, 75, and foot-note; Stone v. Nicholson, 27 Gratt. 17; Brown v. Brown. 31 Gratt. 510, 515; Randolph v. Wright, 81 Va. 612; Stone v. Lewis, 84 Va. 475, 476, 5 S. E. Rep. 282; Jameson v. Jameson. 86 Va. 56, 9 S. E. Rep. 480; Gish v. Moomaw, 89 Va. 345, 15 S. E. Rep, 868; Crews v. Hatcher, 91 Va. 382, 21 S. E. Rep. 811; Cheatham v. Gower, 94 Va. 386, 392, 26 S. E. Rep. 853.

Same — Same—Vesting of Estates. — The law favors the vesting of estates, and where a legacy or devise is given which is not to be enjoyed in possession until some future period or event, it will, where no special intent to the contrary is manifested in the will, he held to be vested in interest immediately on the death of the testator rather than contingent upon the state of things that may happen to exist at a more distant period. To sustain this proposition the principal case was cited in Catlett v. Marshall. 10 Leigh 92; Cowan v. Epes, 2 Pat. & H. 526; Brent v. Washington, 18 Gratt. 526, 529, 539, and *foot-note-,*Taliaferro v. Day, 82 Va. 91; Stokes v. Van Wyck, 83 Va. 733, 3 S. E. Rep. 387; Chapman v. Chapman, 90 Va. 411, 18 S. E. Rep. 913; *foot-note*to Harrisons v. Harrison, 2 Gratt. 1; *foot-note*to Corbin v. Mills, 19 Gratt. 440. See also, *foot-note*to Martin v. Kirby, 11 Gratt. 67; McComb v. McComb, 96 Va. 779, 32 S. E. Rep. 453.

†

Executors De Son Tort. — See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

*

Limitation of Actions — When Statute Begins to Run against Claim for Decedent’s Estate. — The principal case is cited with approval in Bowles v. Elmore, 7 Gratt. 393.

†

Chancery Practice — Suit to Assert Rights In Decedent’s Estate — Parties.—The principal case is cited with approval in Miller v. Jeffress, 4 Gratt. 477. And in Robertson v. Gillenwaters, 85 Va. 118, 7 S. E. Rep. 371, the principal case, Samuel v. Marshall, 3 Leigh 567, Frazier v. Frazier, *2*Leigh .642, and Moring v. Lucas, 4 Call 577, were cited as authority for the proposition that the distributees of a decedent may maintain a bill to settle decedent’s estate, though they cannot have a decree for distribution among them without making the personal representatives of the decedent parties.

*PARKER, J.

The main question in this cause arises on the bequest in the will of the testator Robert Manson, that at the death of his wife, the whole of his personal estate (which he had bequeathed to his wife for life) should be equally divided among his surviving children thereafter named, &c. And the question is, whether the words surviving children shall be taken to refer to the period of the testator’s death, or to that of the death of his widow the tenant for life ? If to the former, the interest vested in all the testator’s children living at his death, and passed to their representatives ; the time of distribution among them being alone postponed : if to the latter, then Elizabeth and Peter Manson, who alone survived the tenant for life, were entitled to the whole property ; and the decree must be reversed.

After an attentive examination of all the authorities cited at the bar (which include, I believe, all that have any material bearing on the subject) I am of opinion, that although the children of the testator were not to take in possession until the death or second marriage of the widow, they took an interest at the period of the testator’s death; that wherever the words survivors and surviving are used in a will, especially by an unlearned man inops consilii (as this testator evidently was), without manifesting any special intent to the contrary, the safest and soundest construction, that most consonant to the intention of the testator and best supported by the authorities, is to refer them to the death of the testator, and not to give the whole estate to such legatee as happens to survive the tenant for life, or, if none survives, to declare a total intestacy. The only authority directly opposed to this construction is the case of Cripps v. Wolcott, decided by sir John Leach in 1819 — where the vice-chancellor laid down as the general rule, that words of survivorship are to be referred to the period of division and enjoyment, if there be no special intent to the contrary ; and that if a previous life estate *is given, the period of division being the death of the tenant for life, the survivors at such death will take the whole legacy — which, he said, was the principle of Russell v. Long, Daniell v. Daniell, and Jenour v. Jenour. But I think it will be found, that those cases do not sustain the proposition ; while the cases of Wilson v. Bayly, Roebuck v. Dean, Perry v. Woods, Maberly v. Strode, Brown v. Bigg, Doe d. Long v. Prigg, are manifestly in opposition to it. The last case I consider as directly in point, or rather as going beyond the case at bar, because the remainder there was to a class, and here it is to children named.

In the case of Russell v. Long, the three sisters among whom and “ the survivor or survivors of them ” the legacy was to be divided after the death of the tenant for life, all outlived their mother the tenant for life, as well as the testator; and the bill was brought by the executors of Christiana, one of the surviving sisters ; the only question being, whether the sisters were tenants in common or joint tenants. The chancellor, on the authority of Stringer v. Phillips, decided that upon the death of Christiana, her third part passed by her will. So far, the case is opposed to the principal stated by sir John Leach. But lord Alvanley added this observation — “ If all the sisters had not survived their mother, possibly I might have adopted the construction, that the survivor-ship related to the death of the mother, and not of the testator; for I think that construction is. not to be adopted, if any other can be.” It will be found that this loose dictum of lord Alvanley not only misled sir John Leach, but betrayed sir William Grant in the case of Brown v. Bigg, into the observation (whilst the argument was going on) that the general leaning of the court was against construing the words of survivorship to relate to the death of the testator, if any other period could be fixed upon. In the case of Shergold v. Boone, 13 Ves. 375, he retracted that remark ; and stated, that *in regard “ to the effect of a general clause of survivorship, he had found the result of the authorities contrary to what had fallen from the court during the argument of Brown v. Bigg, founded upon what lord Alvanley had said in one of the cases; and that, in a great majority of them, the survivorship had been referred to the period of the testator’s death.”

In Daniell v. Daniell, there was a clear, special intent to refer the survivorship to the period of the death of the tenant for life, not only by the effect of the words “to be paid equally between the two sons James and Francis, or the whole to the survivor of them,” but more conclusively by the mode in which the testator disposed of the other sum of ^1000. to the same persons, in which the period of division was, beyond all doubt, the period at which he intended it to vest; a circumstance relied on strongly by sir W. Grant, as confirming his construction of the clause on which the question arose.

The case of Jenour *v.*Jenour was one of *44considerable doubt and difficulty, and in the course of it lord Eldon intimates an opinion, but does not decide, as to the effect of two clauses in the will; one giving ^200. per annum, after a previous estate for . life, equally to be divided between the testator’s nephews and nieces, and the survivors of them ; and the other giving ^200. per annum, after a previous estate for life, to be equally divided between his two nephews, and “to go to the survivor of. them.” But no such question was before the court; and, in point of fact, all the nephews and nieces survived the tenants for life. The question argued and determined arose out of a clause in the will giving *£92.*long annuities, to be equally divided between his two nephews, and to go to the survivor of them, after the death of the testator’s brother and sister; and really turned upon the point whether they were to take as joint tenants, with benefit of survivorship between themselves, *or as tenants in common. Lord Eldon determined, that the plaintiff should take the moiety of the *£92.*per annum absolutely, as tenant in common. The case seems, therefore, to belong to the same class to which Stringer v. Phillips and Russell v. Eong may be referred ; and thus, like the two former, it affords no support to the principle it was cited to sustain.

I have looked into the other cases cited by the appellants’ counsel, to shew that a general clause of survivorship after a previous estate, is to be referred to the period of division, unless a special intent to the contrary appears — Brograve v. Winder, Hoghton v. Whitgreave, Newton v. Ayscough, and Browne v. Ld. Kenyon. In the three first cases, the intention was very clear to refer the survivorship to the death of the tenant for life. The estate, at that time, was to be sold by trustees and divided. That naturally pointed to the period of sale, as the period to ascertain who were the persons to take. In two of the cases, it was real estate to be converted into money by trustees, who were not themselves to take until after the death of tenant for life ; so that (as the master of the rolls observed in one of them) the subject matter did not, until the death of the tenant for life, exist in the form in which it was given. Newton v. Ayscough is distinguished by sir W. Grant from Perry v. Woods, and likened to the cases of Brograve v. Winder and Hoghton v. Whitgreave ; in the former of which lord Eoughborough admitted it to be generally true that the words “survivors or survivor,” or “ surviving,” after a previous estate, would not prevent the vesting of the estate at the death of the testator. The remaining case of Browne v. Ld. Kenyon turned on a bequest, after a life estate, to the testator’s two brothers in equal shares, “ or the whole to the survivor.” Sir John Eeach was of opinion that it was the meaning of the testator, that if one only survived the tenant for life, he should take the whole; that it was a vested gift to the two as tenants *in common, subject to be divested if one alone survived; but as both brothers died in the lifetime of the tenant for life, the estate never was divested, and the money was divisible between the representatives of the two brothers. In this case, it is manifest, there was a special intent that the survivor should take the whole ; and the opinion of the vicechancellor, that the estate vested in both, shews that it does not interfere with the rule I have indicated as the true one, in the first part of this opinion.

That rule is sustained by the cases I mentioned before, and several others unnecessary to be cited. Brown v. Bigg, (divested of the hasty observation of sir W. Grant, which he afterwards retracted in Shergold v. Boone) is in point; and so is Long v. Prigg, decided in the year 1828. Sir John Leach said that Roebuck v. Dean and Perry v. Woods did not square with the other authorities; but the first is cited and approved in Halifax v. Wilson, the latter in Newton v. Ayscough, and both by Bayley, J.,in delivering the judgment of the court in Long v. Prigg. After this, I cannot doubt the soundness of the observation made by lord Eoughborough in Brograve v. Winder — that it is generally true the word survivors will not prevent the vesting of the estate at the death of the testator ; or, as lord Alvanley expressed it in Maberly v. Strode, “ the blind words ‘ with benefit of survivorship’ &c. mean the survivors at the death of the testator.”

But if the general rule were as sir John Eeach states it to be, I should still be of opinion, that the words of this will shew a special intent that the interest should vest in the children surviving at the testator’s death, and the child his wife might have. Eor, 1st, the profits are given for the comfort and support of his wife and children thereafter named, during the wife’s life ; which is indicative of his intention to vest the estate in the children to be supported. 2ndly, If the wife married *again, she was to take but one third of the estate, and unless the whole vested in interest in the children, there would be a partial intestacy as to the two-thirds ; which ought not to be presumed ; it being clearly the intention of the testator to dispose of his whole estate. 3rdly, The bequest is to children specially named ; and I cannot believe the testator meant to make a tontine among them, and if all but one died before the mother, for that one to take all, in exclusion of grandchildren or their descendants. This would, I believe, in ninety-nine cases out of a hundred, defeat the intention. 4thly, The estate is to be equally divided amongst children named, as individuals, not as a class : equality between them is the obvious intent; and this equality would be defeated by allowing a survivor to take the whole. 5thly, If none survived the tenant for life, a total intestacy is the consequence, which this testator manifestly did not intend. And, lastly, the provision that if his wife was then with child, that child was to have an equal part of his personal estate with the rest of his above mentioned children, shews thatthe testator meant that each of his children named should have an equal part in any event. He does not make the interest of the child to be born, dependant upon his surviving the mother, although his pos*45session is necessarily postponed; and, therefore, it ought not to be presumed, that he intended to make the interest of his other children dependant on that event. If, therefore, the period to which survivorship relates is to be ascertained, “ not by any technical words, but by the apparent intention of the testator, collected either from the particular disposition, or from the general context of the will,” (19 Ves. 536,) I feel no doubt upon this will, that the testator meant all his children to take a vested interest at his death ; and, consequently, that the decree in this particular is right.

Upou the other points argued at the bar, I shall touch very briefly, there being no difference of opinion among the members of the court in regard to them.

*As to the length of possession, and the statute of limitations, it was not contended that they would have, protected the defendants in the court below, against the claims of the legal representatives of the deceased legatees, if a suit for the property had been brought in their names. But it was argued, that they protect the defendants against the equitable right of the next of kin or distributees of those decedents to sue ; an equitable right being barred by the same length of time that would bar a legal right. No authority was cited to shew that a person under the disability of infancy or coverture, who might, at the commencement of such disability, have sued by prochein amy, may not sue during its existence, in the same manner, although more than five years have elapsed. The action belongs to the infant or feme covert, not to the next friend ; his or her rights are saved, till the disability ceases. Here, the plaintiffs having been under the disability of infancy or coverture, their case was not within the statute; nor will equity carry the statute beyond the law. Moreover, at the time when Hansford and PeterManson took possession of and divided the estate of the testator Robert Manson, there was no representative of that estate in being : they ought to be considered as executors in their own wrong, liable, like all other executors, to legatees and distributees.

The last point is, I think, settled by the cases of Frazier v. Frazier, and Samuel v. Marshall, cited at the bar, and by another case, Moring v. Lucas, 4 Call 577, all of which proceed upon the assumption, that legatees or distributees may sue in equity, but they are bound to bring the executor or administrator before the court, in order to a decree for distribution. It would be productive of much inconvenience and injustice, if they could not avail themselves of their equitable rights to injoin a sale (as in the present case) or to prevent other irreparable mischief, before an administration of the estate ';icould be obtained, or where an executor or administrator should be indisposed to interfere.

I think the decree should be affirmed.

BROCKENBROUGH, CABELL and BROOKE., J., concurred.

TUCKER, P.,

dissented on the first question. He said — Robert Manson, by his will dated in 1785, devised his estate for the support of his wife and children during her widowhood, but in case she married, then she was to have only a third part during life : he then proceeds, “ and further my desire is, that she continue on the plantation I now live on, and at her death for the whole of my personal estate to be equally divided among my surviving children hereafter named, viz. Anna ” &c. All the children named (besides three others born after the date of the will) survived the testator, but Elizabeth and Peter alone survived the widow. And the question is, whether they are exclusively entitled to the personalty ? I am of opinion that they are. *

If it appeared in this case, that the testator had lost a child or children before the date of his will, the natural construction of the word surviving would be to refer it to that event. But there is no proof of such fact, and the contrary inference may be drawn from the testimony. It has accordingly been contended, that the word surviving must refer either to his own death or to the death of his widow.

In deciding upon this alternative, we must bear in mind that the law has given to the testator the absolute disposition of his property, and that his will in relation to it is the law which must govern it, provided the provisions of it are not in violation of the laws of the land. The only legitimate object of inquiry, therefore, is, what was the intention of the testator ? and that intention is better discerned by looking to his language and the provisions of the instrument, than by a resort to adjudicated *cases upon other wills, or to rules of construction often arbitrary, and very often irreconcilable with the true meaning of any other will than that upon which they have been founded. Let us then endeavour, in this case, to get at the testator’s intention from his very words. His desire is, that “at the death of his wife his whole personal estate be equally divided among his surviving children hereafter named, viz. Anna” &c. Surviving whom or what? The word surviving is a relative term. It means, ex vi termini, a person who outlives another person, or who outlives some certain event. To what, then, does this relative term relate? what is its antecedent? We have seen, that it does not refer to the previous death of other children. Neither does it refer to the testator himself : his death had not been spoken of ;, no reference had been made to it, nor is it natural. or customary, or necessary, that the testator should provide that his legatees must survive himself. At the date of this will, the law provided that ; for, at that time, all legacies lapsed if the legatee died in the testator’s lifetime. To what, then, does this word relate? It relates to his wife, of whom he was then speaking, and to the event of her death, which he had then just mentioned. Surviving whom ? Surviving her. Surviving what? Surviving her death. Herself, or her death, are the immediate objects to which this relative expression refers. Nothing can be more plain; and nothing can obscure *46the meaning, but an attempt to elucidate it by a multiplicity of.cases. Of these cases I shall say but little. If a rule is to be laid down, I conceive that which is stated by sir John Ueach, somewhat modified, to be the proper one ; that if there be a previous limitation of the property to another, with a limitation over to the survivor or survivors of a class or of certain individuals,, the survivorship must be referred to the period of division, if there be no intent to the contrary discoverable in the will. On the other hand, it is contended, that by the *later decisions the testator’s death is the period, unless an intent to the contrary is to be deduced from the will. Thus, both rules are found to refer themselves, at last, to the matter of intention ; and, of course, they in fact offered no certain rule whatever for our direction. We must, at last, look to the will itself, and interpret, as we best may, that governing principle which is to be our guide.

Some objections which have been suggested to my construction of this will, require notice. It is said, that by this construction the children of those who are dead are not provided for, and that it cannot be supposed the testator intended to disinherit them. To this it was well replied, that if the survivorship be referred even to the death of the testator, the same difficulty would have occurred, in case of the death of a child in h is lifetime, leavin g children. We must take it, therefore, that he had no design to provide against such contingency; and as the objection is equally applicable to either hypothesis, it can have no influence in inducing us to adopt the one rather than the other.

Again, it is asked, how would it have been if the widow had married ? would not the estate have been at once distributable among all the children ? I think not. Even in that event, I incline to think the testator intended all but her third to be kept together for the support of the children ; for there can be no question that there was to be. no division till her death. But admit it were otherwise, it brings us only to this, that in one alternative (her marrying) the estate would be divisible at once, and would comprehend all the children then alive ; and in the other alternative (her remaining a widow) the division would be postponed until her death, because she was during life to have the use of the whole.

It may be said, however, that here the division is to be between persons expressly named. But, according to my construction, the words “ among my surviving children hereafter named, viz. Anna” &c. are to be understood *thus, “among the survivors of my children hereafter named,” &c. and then there is no difficulty. It seems to have been thought unnatural for the testator to exclude the families of those dying in his wife’s life. About this, opinions might well differ. Admit the interests to have been vested, and then the husbands of the daughters, and not their children, would at their deaths have taken their interests. It is certain that every testator would be satisfied with such a result? Would every testator have been willing, that these vested interests of his daughters should, upon the division at his wife’s death, have gone into the hands of their husbands, rather than to his surviving children? May not this testator well have objected to giving vested interests to his daughters, which, even before they came into possession, might have been made chargeable with their husbands’ debts? May he not even have chosen to postpone the vesting in interest of his sons’ portions, to prevent the sacrifice of such remote and unsaleable interests by their imprudence? These things seem to me very possible; and if we can suppose any testator might intend such provisions, I think we must say this testator did intend then.

I am therefore of opinion, that by the will, the children who survived the widow were alone entitled ; and I should think it proper to dismiss the bill, but for the interest of Richard, who was born after the date of the will, and pretermitted. He is not comprehended by the will; Armistead v. Dangerfield, 3 Munf. 20. And he is therefore entitled, under the statute, to the same portion of his father’s estate as if he had died intestate, which he is to have by way of charge upon the other legatees ; Ibid. This interest, upon his death, devolved upon his personal representative for the benefit of his next of kin, many of whom are parties in this cause. Richard Manson’s administrator is now a defendant. Under the circumstances of this case, I think the plaintiffs had *ground for coming into equity. They had an interest — possibly not a very large one — and the property in which they were interested was about to be wasted or eloigned", there being at that time, it would seem, no administrator of Richard. Their equitable interest gave them a right, under these circumstances, to the aid of the court; and they might still be sustained here, with leave to shape their bill anew, according to their rights.

As to the statute of limitations, it could not, I think, oppose any obstacle to their success, since the administration on Richard’s estate has been recent; and the statute could not begin to run until administration, as it did not run against Richard himself, he having died before the cause of action accrued. I doubt, moreover, whether the statute would run between the afterborn child and those whom the act of assembly makes chargeable to him. The case is certainly not within the express provisions of the statute of limitations; for the remedy of the pretermitted child is only in a court of equity ; and that court, I apprehend, would not rigorously apply the statute to a case partaking strongly of the character of a trust, so as to protect the children who have got possession of the whole property, against the just claims of their own brother to his portion of the inheritance. On this point, however, it is not necessary to give any explicit opinion.

Upon the whole, I am of opinion, that the decree should be reversed, and the cause remanded to be proceeded in upon the principles I have declared.

Decree affirmed.