#### Dickinson v. Hoomes.

December, 1844,

Richmond.

(Absent Cabell, P.)

Wills—Construction of — Per Stirpes.* — A testator *123gives an express estate in fee in real and. personal property to each oí his live sons, and then, in a subsequent clause oí his will, he says—But it is my express intention, and I do hereby devise and direct, tííat if any or either of my five children shoulfi'flie without issue living at his death, that all tlíe'Qstate, real and personal, of every such child, shall be divided equally between the survivors or their representatives, according to the principles of the law of descents. On the death of one of the children without issue—Held, that the estate passes to the surviving children, and to the descendants of such as are dead, the latter taking as purchasers, under the will, the share which the parent would have taken, if alive.

John Hoomes the elder died in 1805. By his will, which is dated in 1804, he devised and bequeathed to each of his sons, John, William, Richard, and Armstead, to his daughter Sophia, and grandson John Waller Hoomes, real estate and slaves, giving to each of them, in express terms, an estate in fee simple in the property devised to them. The will then proceeds:

*“Item. But it is my express intention, and I do, hereby, devise and direct, that if any or either of my four children should die without issue living at the time of his or her death, that all the estate, real and personal of every such child, shall be divided equally between the survivors and my said grandson, so that his share shall be equal to a child’s share, or their representatives, according to the principles of the law of descents; and I subject, hereby, all the devises and bequests, made in favour of my said live children, to this condition.”

The testator’s four sons and grandson survived him, and took possession of the estates devised to them. William died in the lifetime of John Hoomes the younger without issue; Richard also died in the lifetime of his brother John, leaving several children, and John died in 1825 without issue.

In 1819, John Hoomes sold and conveyed to Samuel A. Apperson the land devised to him by the will of his father, and, in this conveyance Richard united, and entered into a covenant, by which he bound himself and his heirs to warrant the title to the land generally. This land, or that part of it in controversy in this cause, came, by regular conveyances, into the possession of William W. Dickinson.

In 1827, the children of Richard Hoomes filed their bill in the chancery court of Fredericksburg against Dickinson, in which they alleged the facts as above stated. They claimed to be entitled, under the will of their grandfather, John Hoomes the elder, to one undivided fourth of the land devised to John Hoomes the younger; and prayed for a division thereof, and for an account of rents and profits.

In 1830, Dickinson demurred to the bill, on the ground that the title set up by the plaintiffs was a legal title, and proper to be tried at law, and, therefore, the court had no jurisdiction of the cause. The court overruled the demurrer, and made an order to retain the *cause for a reasonable time, to enable the plaintiffs to establish their title at law: and the cause was removed to the circuit superior court for the county of Caroline.

The children of Richard Hoomes then brought an action of ejectment, in the superior court of law and chancery for the county of Caroline, against Dickinson for the recovery of so much of the land, devised by John Hoomes sen’r to John Hoomes jr. as was in his possession; and the parties having agreed the facts substantially as above stated, the court pronounced judgment thereon, in favour of the plaintiffs, for two undivided fourth parts of the land in possession of the defendant.

A copy of the record in the ejectment case, having been filed in the chancery cause, and the defendant not having answered, the court proceeded to take the .bill for confessed, and make a decree in favour of the plaintiffs, for one full fourth part of the land mentioned in the judgment in the action of ejectment, and appointed commissioners to lay it off by metes and bounds. The court farther decreed, that the defendant should render an account of the rents and profits of the land from the 1st of January 1826.

The defendant Dickinson applied for and obtained appeals from the judgment at law, and the decree in equity, and the causes came on to be heard together in this court.

C. & G. JST. Johnson for the appellant.

This case turns upon that clause in the will of John Hoomes the elder, by which he devises over the estate he had given to each of his sous, upon his dying without issue at his death. It is impossible to give any construction to this paper, which will not ire some change in the phraseology.

*124The appellees claim as remaindermen, and not as heirs of their father Richard, 'under the term representative. *We insist that they must claim as heirs of Richard, and he having conveyed the land now in controversy with general warranty, they have no title. The question turns upon the words 1 ‘survivors or their representatives.” The appellees read the clause as if it said “to the surviving children, and the heirs of such as are dead.” We say “the survivors and their heirs.”

The word “survivors” often means “others,” as may be seen from the cases of Carter v. Tyler, 1 Call 165; Bells v. Gillespie, 5 Rand. 273; Broadus v. Turner, Id. 308; Sydnor v. Sydnors, 2 Munf. 263; Burfoot v. Burfoots, 2 Leigh 119; Wilmot v. Wilmot, 8 Ves. Rep. 10; and Hansford v. Elliot, 9 Leigh 79. The result of these cases is, that a party designated by the term survivor, must not necessarily be alive when the previous estate falls in; but it passes to his heirs, as heirs.

The only other objection to the title of Richard arises out of the word “or.” But on any construction that can be given to this will, this word “or” must be read as “and.” That it may be so read, will be seen from the cases of Read v. Snell, 2 Atk. 642, and Wright v. Wright, 1 Ves. sen. 409.

As to the real estate, the word “representatives” must mean heirs; and as to the personalty, next of kin. This is its true meaning, and there is nothing in this will which restricts it. What representatives then are to take? Clearly those who would have taken, if the persons designated as survivors had died intestate, for the will directs that they shall take according to the statute of descents.

2. The deed of Richard Hoomes is a deed with covenant of general warranty binding the covenantor, his heirs and personal representatives, and the court .should, therefore, have directed an enquiry to ascertain, whether the heirs had not received assets by descent from their father.

*Leigh, for the appellee.

We read the will of John Hoomes the elder, according to the usual and natural meaning of the language employed; taking “survivors” as meaning the children who survive, “or” in its usual sense, and “representatives’ ’ as descendants. Although it is true that “survivors” is sometimes read “others,” to carry out the intent of the testator, yet it does not always, or generally, bear this meaning, as will be seen from the cases of Burfoot v. Burfoots, 2 Leigh 119, and Broadus v. Turner, 5 Rand. 308. As to Carter v. Tyler, Bells v. Gillespie, and other cases of that class, the question was, not on the force of the word “survivor,” but whether the first taker took an estate tail.

It is true, likewise, of the word “or,” that it sometimes means “and,” to effect the intent of the testator; but that is not always or generally its meaning. Bridgman’s Index, title “Meaning of words.”

Take the language of the testator in its usual and natural sense, and the obvious intention is, to limit over the estate of the child dying without issue, to the-¡surviving children, and the descendants pf.such as are dead ; these last, to take per stirpes.

2. The covenant of Richard Hoomes is not a technical warranty, but a personal covenant of warranty. Binford v. Tabb’s heirs, 4 Leigh 182. And it is only to the former, that the statute applies; 1 Rev. Code, ch. 99, § 20, 21, p. 368; though it is true, that an action of covenant would lie upon it against the heirs, if they are bound by the covenant. But if assets by descent would have been a good defence to this action; it is surely matter of defence, and if the defendant has not set up or sustained that defence; that is his own neglect or failure, and-not ours.

*

Effect of Reference to Statute of Distributions after the Word “ Representatives.”—In Gish v. Moomaw, 89 *123Va. 369, 15 S. E. Rep. 868, the court, citing the princi-. pal case, said: “From a mere casual reading of the opinion of Judge Baldwin in that case, it will clearly appear that the case turned, not on the word ‘representatives.’ nor npon the word ‘or,’ but upon the words ‘according to the principles of law of descents,’ which followed the word 'representatives,' in the will. It will also appear that Judge Baldwin did not once allude to the word ‘or’ as having the signification attributed to it by the court below. And, so. too, the decision in Brent v. Washington, 18 Gratt. 526. which is the key to *Dickinson v.*Hoomes, turned upon the words ‘according to the statute of distributions.' which follow the word ‘representatives' in that case, and the word ‘and’ was used there instead of the word ‘or’ as here.”

In Brent v. Washington, 18 Gratt. 530, 531, it was said that the primary sense of the word “representatives,” when used in a bequest of personal property, may be controlled, and its meaning explained by reference therein to the statute of distributions, as by an addition of the words "according to the statute of distributions, ” which was the case in Brent v. Washington, *supra.*This it was said, was confirmed by the decision in *Dickinson*v. *Hoomes. 1 Gratt. 302.*The principal case is also cited in Dickinson v. Hoomes, 8 Gratt. 402, 437, and 139.

BALDWIN, J.,

delivered the opinion of the court.

The court is of opinion, that the general intent of the testator, John Hoomes the elder, was to keep the *property devised to his children respectively (placing his grandson upon the footing of a child) in his family, as long as he could consistently with the rules of law, and without cross remainders, but so as not to restrict the estates in fee given to the first takers further than was expedient in carrying out that general intent. The obvious mode of effecting his purpose, as our laws do not allow the existence of estates tail, was to reduce the estates in fee devised to the children respectively, in the event of their djdng without leaving issue, to estates for life; and upon the happening of such contingency in regard to any one of them, to limit over the remainder in fee by way of executory devise to his other children and their descendants. And if there be any difficulty in the construction of this part of the will, it is upon the question, whether the limitation over is to the children who should survive the testator, or those who should survive the first taker. The latter, we think, was the testator’s intention. He clearly intended, if any child should die leaving issue, that such issue should succeed to the original share of the parent, and also to what would have been the contingent interest of the parent, in the original share of any other child, dying before him or her without issue. And whether such succession is to be by descent or purchase, is to be determined by considering, what surviving children were contemplated as beneficiaries on the happening of the contingency. Are we to look to the dead as well as the living, or the living only and the issue of the dead? We think the latter. We think the testator intended that his children respectively, leaving descendants, should have an estate in fee in the property devised to them respectively; and those not leaving descendants an estate for life only, with a limitation over of the remainder in *125fee to the testator’s children then surviving, and the descendants of those not then surviving, such descendants to take per stirpes and not per capita. It is manifest *that the testator’s intent cannot be made effectual by a literal interpretation of the will, whether the construction be in favour of the appellant, or in favour of the appellee; and that we must, in either case, depart from the literal import of the words employed, by understanding them in a different sense, or by supplying words omitted. Either is admissible, or both, to effectuate the testator’s intent; and neither to defeat it. We think that the intention of the testator requires the clause in question (omitting, for perspicuity, the parenthesis in reference to his grandson) to be read thus: “But it is my express intention, and I do hereby devise and direct, that if any, or either of my four [live] children should die without issue living at the time of his or'her^death, that all the estate real and personal of every such child, shall be equally divided between the then survivors (or my children then surviving) and the representatives of those not then survivors (or the representatives of those then dead), according to the principles of the law of descents,” And then, understanding, as we do, “representatives” to mean here descendants, and “according to the principles of the law of descents” to import here that they are to take per stirpes and not per capita; the effect of our construction is to give to the appellees, who are the children of the testator’s son Richard, one undivided fourth of the property devised to the testator’s son John, who survived the said Richard, but died without having had issue; being the same interest which their father Richard would have taken had he survived the said John, but to which the appellees succeed, not by descent from their father, but by purchase from their grandfather. As to the construction and effect of the covenant of warranty in the deed of conveyance, embracing the land in question, executed by the said Richard and others, if coupled with the descent of assets from him to the appellees; the court deems it irrelevant to go into the consideration thereof, inasmuch as no such defence was made either in the action of ejectment or the suit in equity; nor can any cause of action founded upon said warranty be prejudiced by said judgment and decree. The court is, therefore, of opinion that there is no error in the said decree of the said circuit superior court. Wherefore it is decreed and ordered that the same be affirmed with costs to the appellees. And the court is further of opinion that the said judgment in the action of ejectment, ought, upon the case agreed, to have been for one undivided fourth part of the lands in said judgment and decree mentioned, whereas the same is for two undivided fourth parts thereof: Wherefore it is considered by the court that the said judgment be reversed and annulled with costs to the appellant: and this court proceeding to render such judgment as the said circuit court ought to have rendered, it is considered that the plaintiff in said ejectment recover against the defendant therein his term yet to come of and in one undivided fourth part of, &c.