#### Den on the demise of Arrington and others, *v.*John Alston.

¡>From Nash.

Devisee. A testator by the first clause of his will devised to his three daughters, each a tract of land, and provided in the same clause that if either of them should die before marriage, the lands of such one should gq to the survivors, and in case all should die before marriage, their lands were to go to B. and C. After several other bequests and devises, the testator, in the last clause of his will, bequeaths to the same daughters a number of slaves with other specified personal estate ; and then adds a general clause of *all the residue**322ofhis estate *real,*personal and mixed, to' be equally divided among them when the two eldest arrive at the age of 18 years or marry ; and that if either of them should die before their arrival at 18 years or marriage, then the 'share of the one so dying should go to the survivors ; but if they should all die before they arrive at 18 years, *or*marry *and have issue,*then the said personal estate (particularly specify ing it) and all other property which they were entitled to by his will, should go to IÍ. *P.*It- and A.

i;e lands'rnentioned in the first clause are not affected by any thing contained in the last clause ; and therefore upon the death of one of the daughters who reached 18 years, and married but died without issue, the lauds passed to her surviving sisters. Ti

This was a case argued, in which the material facts are as follow Micajah Thomas having three illegitimate children by Ann Jackson, to wit, Mourning, Margaret and Temperance, made his will in the year 1788, and (herein devised “ to his daughter Mourning, all that part of his Manor Plantation,&c. containing 2500 acres; also another tract &c.” And to his daughter Margaret oilier lands in fee-simple ; and to his (laughter Temperance, other Iatids¡iu fee-simple. He then declared, that if “ either ofhis said daughters should die before they marry “ *the lands*of the deceased shall go to and be .equally di- “ vided between the surviving two and their heirs fore- “ ver ; and in case two of them should die before they “ marry, then tbe whole of their lands shall go to the sur- ****viving one and her heirs forever ; and in case that all “ three of them should die before they marry, that all “ *the lands*willed to them should go and be equally divi- *“*(led between Rennet Boddie, George Boddie, *John*“ Cnidup and George Grudup, to them and their heirs forever.”

The testator then gave several legacies to other persons, and returning to Ids daughters, he declares, i(fcthat he gave “ to them his negro slaves with their increase, his cash *“*on hand, certificates, *stock*in trade, debts due by bond “ or otherwise, all and every thing else of his estate real_ “ and personal or mixed, that is not before given in and *323«<■ by his will, to *bo*equally divided between them wben *u*they should arrive at the age of eighteen years,or marry*, *“*to them and the heirs of their bodies forever. But if ei- *“*thcr of the said children should die before they arrive <c at the age of eighteen years, or marry, then and in that *“*case, the estate of the one deceased should be equally divided between the surviving two, to them and the heirs of their bodies forever ; and if two of them should die “ before they arrive at the age of eighteen years, or mar-<c ry, then that the portions of the two deceased should *<(*descend to the surviving one, and the heirs of *her body. “*forever. But if all of them should die before they are< rive at the age of eighteen years or marry, and *has “ issue*thereby, then the said negroes, cash, &c. shall go ** to and be equally divided between Bonnet Boddie, “ George Boddie, Temperance and .Mary Perry, (laugh- *((*ters of Nathan Boddie, Elizabeth Boddie, Mourning <e Boddie, and testator’s two nieces, Rlioda Ricks, and *“*Mourning Arrington, to them and-their licit's forever..”

Mourning, one of the testator’s daughters, arrived at the age of eighteen, married and’ died without issue in 1805. Her mother was named Ann Jackson, who after the death of the testator, Micajah Thomas, had four illegitimate children, nanied Munroe, who survived Mourning. She had also a daughter named, Mary, wife of Jo.seph Arrington,, one of the lessors of the Plaintiff; born out of wedlock *;*and John Arrington, Martha,, wife of Laurence Battle and William Arrington, (all lessors of the Plaintiff) born in wedlock, who survived Mourning.

Margaret, one of the testator’s daughters, married John Alston, and .Temperance married James Alston. The case stated that John Alston was in possession of the lands in question, claiming them adversely to and denying the title of the lessors of the Plaintiff.

It was submitted to this court to decide, who were entitled to the real estate acquired by Mourning, under the will of Micajah Thomas, if Margaret and Temperance» *324were entitled, then judgment to be entered for Defendant; if all the brothers and sisters of Mourning;, legitimate and o’ o illegitimate, were entitled, then judgment to be entered fop |jie piaintiff on the demises of each of his lessors. If only the legitimate were entitled, then judgment for the Plaintiff, on the demises of John Arrington, William Arlington and Laurence Battle and wife..

Seaweiu, Judge,

delivered the opinion of the Court:

By the first clause of this will, the testator devises th his daughters several tracts of land, and provides in the same clause, that if either of them should die before marriage, the lands devised to such one so dying, should go to the survivor; and in case they should all die before marriage, the lands so devised should go to the Boddies and Crudups. By the latter clause, the testator devises to his same daughters a number of slaves, together with other specified personal estate, and then adds a general sweeping clause, of all the rest and residue of his estate, both real, personal and mixed, to be equally divided amongst them, when the two eldest arrive at the age of eighteen years or marry ; and that if either of them should die before their arrival at eighteen years or marriage, then the share of the one so dying should go to the survivors ; but if they should all die before they arrive at eighteen years, or marry and have issue, then the said personal estate, particularly specifying it, and all other property, which they were entitled to by his will, should go to the Boddies, the Perries, the Rixes, and the Arringtons.

Mourning, one of the daughters, arrived at eighteen years and married, but died without *issue;*and the question is, do the lands devised to her, pass to the surviving sisters, or do they descend to her. heirs at law ? If the lands be not affected by the latter clause, it is clear they become vested ; and upon looking into both clauses, it appears plain, that it was not intended by the testator, that *325they should bo subject to it in any manner. The first is a plain limitation to the Boddies and Crudups, upon a default of the daughters arriving at eighteen years or marriage, The otiier clause respecting the personal estate is limited to a different set of persons, and not upon the same contingency that the lands were limited upon, but upon a default of their dying unmarried, under eighteen years of age, and *without*issue. So that it seems impossible to suppose, he could have intended, consistently with all he iiad declared, to have made the lands subject to that clause ; nor can we be brought to understand him so, by any thing short of downright and- positive declarations, these lie has not made ,* but he has used terms, which comprehend them within their scope. He has said, f< all the other property” *;*but as they do not otherwise than by construction, embrace the lands, such construction must stand controlled by, the other clause^ whose peculiar office it was to dispose of them.

The case is therefore not like those where the same identical thing is devised to two different persons, by different clauses *;*there it is impossible to understand the testator, on account of the *same thing*being twice *devised;*here a *general term,*is used, and the testator’s general intent is easily perceived» But if the lands were considered as subject to the second clause, a remainder to the surviving sisters, was not to take place, but upon a dying un married, un'der eighteen years of age and *without issue ;*for the words of the will are, “ if she should die under eighteen, *or*unmarried and without issue”; yet the copulation *or*must be understood *and,*otherwise a dying *without issue,*if under eighteen, would not prevent the estate from passing to the survivors : and surely it was the intention of the testator to provide for the issue, if we respect his declarations.

But it has already been decided in this Court, upon this will, and this very clause, that such construction *326should be put upon the word *or :*(a) and the cases cited by the Plaintiffs counsel are decisive in favor of this * construction. (b) It has, however, been insisted, that though this should be the proper construction, in relation to the personal estate, yet in respect of,the real, the same Words may be construed differently *;*and Forth v. Chapman (c) is cited as an authority. This case lias been fully answered on the other side, by the case of Richards v. Burgaveny, *(d)***which determines, that whenever the real and personal estates are to go over *together,*there the same construction shall be applied to the words 'in relation to each. This case is noticed in Fearne, (e) by way of note to Forth v. Chapman. Which ever way, therefore, the case is considered, there must be judgment for the heirs at law; and tiie act of Assembly of 179©, having made bastard brothers and sisters, capable of inheriting from each other, in like manner as if they were legitimate, there must be judgment for their lessees also.

(a)

**1 Murph. *356.*

(b)

 1 Wills. 140, 3 Term 47. 4 Term 441.

(c)

 1. P. Wms. 663.

(d)

**2 Vernon, 324.

(e)

**2 Fearne 193.