#### *James McGregor*v. *Henry V. Toomer, administrator of R. W. Vanderhorst, et al.*

Charleston,

Jan’y. 1848.

Testator, *m*oáse he should have ho óther children, devised and bequeathed all his •estate, both real and personal, to his daughter, during her life, and at her death tobe equally divided among her children, share and share alike; *held,*that Upon the death of testator without leaving other children, the children of his daughter took a vested interest in the property.

*Before*Caldwell, Ch. *at*Charleston, *Sittings,*1847.

Caldwell, Ch. The bill states that on the first day of June 1829, plaintiff obtained and entered up judgment in the Court of Common Pless, in Charleston district, against Richard W. Vanderhorst, for the sum of $14,571 42, on bond which, had been given, to plaintiff some years before, for the purchase money of certain negroes, sold by him to the said Richard W. Vanderhorst; that afterwards, on or about the. day of 183 , the said judgment being unsatisfied, and no payment having been made thereon, the said Richard W. Vanderhorst died, leaving a considerable estate, but with debts to a much larger amount, and a will appointing his widow, Mary Van-derhorst, executrix, and John Axson, Josiah Taylor, and Joshua W. Toomer, executors; that Josiah Taylor and Joshua W. Toomer renounced the executorship, and Mary Vander-horst alone proved the will, qualified and acted as executrix; that she possessed herself of all the estate of which the testator died possessed, and sold the same, and applied the money, in due course of administration, to the payment of his debts ; but the whole of the assets which came to her hands were applied to and absorbed by judgments and mortgages of the testator, of prior date to plaintiff’s judgment, and which were, therefore, entitled to priority of payment, and nothing was paid on account of his said judgment. Plaintiff further shows, that the said Richard W. Vanderhorst, at the time of his death, besides the property in his possession, and which was administered by his executrix, was entitled to a vested interest in remainder, in one-third part of a large estate, which by the will of his grandfather, Richard Withers, had been devised to Mrs. Sarah C. Vanderhorst for her life, and at her death to her children ; that the said Sarah C. Vanderhorst, who, after the death of the said Richard Withers, her father, being a widow, intermarried with William Cartwright Shack-elford, had three children, namely, the said Richard W. Van-derhorst, William C. Shackelford, and Mary L. Shackelford, who intermarried with Thomas Butler; and that the said William C. Shackelford and Mary L Butler, as well as the said Richard W. Vanderhorst, died in the life time of the said *52Sarah C. Shackelford; that the said Sarah C. Shackelford ^as lately died, whereby the estates of the said Richard W. Vanderhorst, William C. Shackelford, and Mary L. Cutler have become respectively entitled, each to one-third part of the said estate, of which their mother was tena't for life, under the will of her father Richard Withers; that this estate consists for the most part of about 120 negroes, and some other personal chattels ; that soon after the death of the' said William *G.*Shackelford, his widow Mary Shackelford, took out letters of administration of his estate in Georgetown district, he having died intestate in that district, leaving his widow and three children, namely, Richard W. Shackelford, R. F. W. Shackelford, and Susan, the wife of Benjamin W. Rumney, and the said Mary Shackelford has since intermarried with William Lester; and since the death of the said Sarah C. Shackelford, the said Mary Yanderhorst and John Axson, the executrix and executor of the said Richard W. Yanderhorst, being both dead, Dr, Henry Y. Toomer has lately taken out letters of administration *de bonis non,*with the will annexed, of the said Richard W. Yanderhorst, and H. Pinckney Walker has taken out letters of administration of the estate of the said Mary L. Butler.

The bill further sets forth that the said Dr. Henry Y. Too-mer has also taken letters of administration *de bonis*non, with the will annexed, of the said Richard Withers, and denies and pretends that the negroes and other property of which the said Sarah C. Shackelford was possessed for life, under her father’s will, are, since her death, unadministered estate of the said Richard, and that he as administrator of that estate, is entitled to take possession of and administer the same. The said Sarah C. Shackelford left a last will and testament, whereof she appointed her grandson Richard W. Shackelford executor, and that the said Richard W. Shackelford now has custody and possession of the negroes and other property of which the said Sarah G. Shackelford was tenant for life, as aforesaid.

The bill charges the said Henry Y. Toomer, Richard W. Shackelford and one Rumney, who has intermarried with a daughter of the said William C. Shackelford, and claims, in right of his wife, to be entitled to a share of the said estate, intend to sell the negroes, or remove them beyond the jurisdiction of this Court, and prays that defendants Henry Y. Toomer, W illiam Lester, and Mary his wife, H. Pinckney Walker, and Richard W. Shackelford, executor of Sarah W. Shackelford deceased, may answer the charges of the bill, and for ah account of the estate of which Sarah C. Shackel-ford was tenant for life, under the will of her father, with remainder to her children, and for partition thereof, and that the share to which the estate of the said Richard W. Yander-*53horst is entitled may be ascertained and allotted, and the same applied to the payment of his debts, in due course of istration, and that plaintiff’s judgment may be paid, and that Henry V. Toomer, Richard W. Shackelford and Rumney, may be restrained from selling or otherwise disposing of the negroes, or of any part of the said estate, and for a writ of injunction, &c.

The joint and several answer of Benj. W. Rumney and Susan his wife, neither admits nor denies the allegations in plaintiff’s bill, touching the judgment against Richard W. Yander-horst; the condition of his estate at the time of his death, and the administration of the same. These defendants have no knowledge thereof. They admit that Richard Withers, father of the late Mrs. Sarah Shackelford, did leave a large number of negroes to his said daughter during her life, and at her death to her children ; but Mrs. Sarah Shackelford had, besides the children mentioned in the bill, two other children, James and Hugh, by her second husband Wm. C. Shackel-ford, both of whom died in her life time, while still of tender years, unmarried and intestate, and who, according to plaintiff’s construction of the will of Richard Withers, took an interest in the will of the said testator, to a portion of which these defendants would be entitled, in right of this defendant Susan, as one of the descendants of Wm. C. Shackelford and Sarah his wife. These defendants admit the death of Mrs. Sarah Shackelford, and that she left a will appointing her grandson R. Withers Shackelford her executor, and they have heard that Dr. H. Y. Toomer has administered on the estate of R. W. Yanderhorst, deceased, with the will annexed ; they also admit that William C. Shackelford, father of this defendant Susan, and son of Mrs. Sarah Shackelford, did, sometime since, die, and that his widow administered on his estate, and afterwards intermarried with Wm. C. Lester; and that Mary Lupton, daughter of Mrs. Sarah Shackelford, who intermar ried with Thomas Butler, is also dead, and that H. Pinckney Walker has administered on her estate; and this defendant Benj. W., denies that he has ever attempted or intended to eloign or dispose of any of the said negroes, bequeathed under the will of Richard Withers, and in possession of Mrs. Shack-elford at the time of her death, or to remove the same beyond the jurisdiction of this Court. These defendants are not in anywise concerned or interested in the estate of Richard W. Yanderhorst, or the administration of the same, but only desire that the portion and interest to which they are entitled out of that property, bequeathed by Richard Withers, deceased, may be allotted and set apart to them in severalty, <fcc.

The answer of Henry Y. Toomer, as administrator, and in his own right, denies a’l knowledge of plaintiff’s judgment *54against R. W. Yanderhorst; admits that Mary Yanderhorst did qualify as executrix of the will of R. W. Yanderhorst, but being wholly unacquainted with business, she intrusted the management of the- estate to her solicitors, and therefore no books, papers, or documents of any kind, that would show the amount of debts that were paid or left unpaid, came into the possession of this defendant, after the death of the said executrix of R. W. Yanderhorst, when he qualified as her executor. But this defendant is informed and believes, that the said estate was known tobe partially insolvent in the lifetime of the said executrix. Defendant is informed and believes, that R. W. Yanderhorst, in his lifetime, had a contingent interest only in one undivided third part (if not in the whole,) of the estate of his grandfather Richard Withers, to which he would have been entitled if he had survived his mother, Mrs. Mary C. Shackelford, but the said Mary C. Shackelford survived her said son many years, as she did her other children; by reason of which this defendant is advised and believes, the said estate of which she died possessed, on her death vested in her grand children, as there were no children alive in whom it could vest. This defendant, therefoi-e, took out letters of administration with the will annexed, for the purpose of making partition of the said estate, under the direction of this honorable Court, among her surviving descendants, “share and share alike,” according to the intention of the will of the said Richard Withers, to which this defendant craves reference, and more particularly to the following part thereof; “and if I should have no child by my loving wife Frances Withers, I do then give and bequeath the use of all my estate, both real and personal, to my daughter Sarah Yanderhorst, during her life, and at her decease to *be equally divided among her children, share and share alike.”*This defendant further answering says, that R. W. Yanderhorst was the only child of the said Sarah, then bom, inasmuch as she had no other child by her first husband Elias Yanderhorst, who survived her said father some years; and she afterwards intermarried with her second husband Shackelford, by whom she had two children; that Frances Withers, the wife of testator, died without leaving any child or children, and possession was given by the executors to his daughter Sarah, according to the provisions of the above clause of the will; that the said Sai ah Shackelford died on the day of November last, leaving a will, of which R. W. Shackelford, her grandson, is now qualified executor, and by which she disposed of certain moveables of her own acquisition, which defendant believes she had a right to do; but her executor, at the time of her death, took possession of the personal property left to her for life by the will of her father, which consisted of one hundred and nine negro slaves, and not one hundred and twenty, as *55in the bill set forth : And this defendant further answering shows, that by the said will of Richard Withers, other tingent interests were created in favor of John Withers, Ann Calvert, Rebecca Calvert, Wm. Shackelford, and Richard Shackelford, which defendant is advised and believes could not be determined, until after the death of the said Sarah Shackelford, as will more fully appear by reference to the will, (Exhibit A.) Admits that he took out letters off administration on the estate of R. W. Yanderhorst, not because he believes the said estate entitled to any portion of the estate of Richard Withers, left by the death of the tenant for life, but partly to prevent strangers from administering t.ereon, and partly to enable him to ascertain the true condition of the said estate, or whether there be any estate, besides a small tract of land in Christ Church Parish, which this defendant is informed and believes belongs to the said estate, and has not been disposed of; denies all manner of combination with any persons whatsoever, to remove the above negroes beyond the jurisdiction of this Court; on the contrary, this defendant gave large and sufficient security to the Court of Ordinary for Charleston, as administrator of Richard Withers, and has also at great expense returned an inventory of said slaves to said Court, and petitioned said Court for leave to sell the same for a division, which petition was refused, at the instance of plaintiff and others; and James W. Gray, Esq., one of the Masters of this Court, *is now acting on the said account*or inventory, (the matter having been referred to him) so made at the expense of this defendant; and he therefore prays that the amount so expended be refunded to this defendant, out of the first monies that shall come into the hands of the Master on account of the said estate or estates. And this defendant denies all, &c.

The separate answer of Henry Pinckney Walker neither admits or denies that plaintiff was a creditor of, or had a judgment against R. W. Yanderhorst in his lifetime; defendant has heard and believes, that R. W. Yanderhorst died about the time stated, and left a testament; has no knowledge of the administration of his estate, and neither admits or denies the same. Admits that R. W. Yanderhorst was, as one of the children of Sarah C. Yanderhorst, entitled to a share of a large estate, devised to the said Sarah C. Yander-horst, by Richard Withers, her father, and that she had three children, Richard W. Yanderhorst, William C, Shackelford, Mary Lupton Shackelford, this defendant’s intestate, who afterwards married Thomas Butler, and that all these children died in the lifetime of Mrs. Shackelford; admits that Mrs. Shackelford died at or about Nov. 1845, and the estates of the said children have become entitled to a third part of the estate of which Mrs. Shackelford was tenant for life ; believes *56that after the death of Wm. C. Shackelford, his widow ad-mmistered on his estate, and that she has since intermarried with his co-defendant William Lester: that H. V. Toomer, his co.¿iefen(jant, has also taken out letters of administration *de bonis non et cum testamento*annexo, upon the estate of R. W. Vanderhorst; and that this defendant has taken out letters of administration of the estate of Mary Lupton Butler ; that the said Henry V. Toomer has also taken out letters of administration *de bonis non et cum testamento*annexo, of the said Richard Withers; that the said Sarah C. Shackelford did leave her last will and testament, whereof she appointed Richard W. Shackelford executor, and that the said R. W. Shackelford now has the custody and possession of the ne-groes and other property of which Mrs. Shackelford was tenant for life. This defendant claims one third of all and singular the negroes and other estate of which Mrs. Shackel-ford was tenant for life, and is ready and willing to assent to any just and fair partition and division whereby the rights and interests of his intestate shall be respected and maintained, and therefore prays to be hence dismissed with his reasonable costs and charges.

The separate answer ofR. Withers Shackelford neither admits or denies the allegations in the bill touching the judgment of plaintiff, and the debt claimed to be due from the late R. W. Vanderhorst, and the judgment obtained thereon in his lifetime, nor as to the condition of indebtedness of said R. W. Vanderhorst at the time of his death; nor as to any last will .and testament left by him, or the administration of his estate, of all which things this defendant is entirely ignorant. This defendant admits that Richard W. Vanderhorst was one of the children of Mrs. Sarah W. Shackelford, deceased; and that by a clause in the will of Richard Withers, certain property, real and persona), was devised and bequeathed to Mrs. Shackelford during her life, and at her death to her children, but says that there are other claims in the said will also, relating to the said legacy and devise,-and the nature of the interest devised to the said R. W. Vanderhorst, according to a proper construction of the whole said will, this defendant cannot determine. Admits further, that a considerable estate, consisting of a large number of negroes, went into the possession of his testatrix Sarah Shackelford, as tenant for life, under the will of her father Richard Withers; and after the death of Vanderhorst, the said Sarah married William Cartwright Shackelford, grand-father of this defendant, and that she had born to her, R. W. Vanderhorst, by her first husband, and by her second husband, Wm. C. Shackelford, father of this defendant, and Mary Lupton Shackelford, who after-wards intermarried with Thomas .Butler, but that she had also by the said W. C. Shackelford two other children, both *57of whom died unmarried, without issue, and intestate. Further admits that the said Sarah Shackelford lately died, leaving this defendant her executor, and that she was at the time oí her death in the possession of a large number of negroes, to wit, bequeathed to her during her life, under the will of Richard *Withers;*that Shackelford, after the death of her husband Wm. C. Shackelford, did take out letters of administration on his estate, and that she afterwards married William Lester, and has heard and believes that Dr. Henry V. Toomer has lately taken out letters of administration *de bonis non*on the estates respectively of Richard Withers and Richard W. Yanderhorst, and the said Henry Y. Toomer now pretends that he is entitled to the negroes of which Sarah Shackelford was possessed as tenant for life, under the will of Richard Withers, as his unadministered estate. This defendant denies that he has ever attempted or intended to sell the said negroes, or remove them beyond the jurisdiction of this Court, but on the contrary is ready to act in the premises as this Court shall direct; and submits his rights under the will of Richard Withers to the adjudication and determination of this Court. ' Denies all, &c. and prays to be hence dismissed with his costs and charges, <fcc.

The answer of Elizabeth F. W. Shackelford, a minor, by Thomas. J. Gantt, her guardian ad litem, neither admits nor denies the allegations of the bill touching the condition of the estate of Richard *W.*Yanderhorst, or the rights of .complainant as a judgment creditor of the said R. W. Yanderhorst, as none of these things are within her knowledge. This defendant has heard and believes, that besides the children of her grand-mother, the late Sarah C. Shackelford deceased, mentioned in complainant’s bill, there were two other children, James and Hugh, born to her by her second husband Wm. C. Shackelford, both of whom died under the age of twenty-one, intestate and unmarried. And this defendant further says, she is an infant, and submits her rights and interest under the will of her great grand-father, Richard Withers, and in the property bequeathed by him, to the protection of this Court.

The question in this case is, did Richard W. Vanderhorst take a vested interest under the will of Richard Withers ? The clauses out of which the question arises are as follows, “and if I do not have a son, I do then give and bequeath the half of my lot of land in Charleston to my grand-son Richard W. Yanderhorst, that is thirty feet in front, fronting Union street, and Queen street, and one hundred feet in depth, at the decease of my daughter Sarah Yanderhorst, or at the age of twenty-one years, which shall first happen, to him, his heirs and assigns forever. And if I should have no child by my loving wife Frances Withers, I do *then*give the use of *58all my personal estate not mentioned, unto my daughter Sarah Vanderhorst during her natural life, and at her decease to be equally divided, share and share alike, amongst all her children, t"> them and their heirs and assigns forever ; and if I should have no child by my loving wife, I do then give and bequeath the use of all my estate, both real and personal, to my daughter Sarah Vanderhorst during her life, and at the decease of my daughter Sarah Vanderhorst, to be equally divided amongst her children, share and share alike, to them and their heirs- and assigns forever, &c. and if it should so happen that I should leave no children, and my daughter Sarah Vanderhorst should die and leave no children, then and in such case, *at the decease of loving wife Frances Withers,*I do give the whole of my estate, both real and personal, to be equally divided, share and share alike, amongst John Withers, Ann Calvert, Rebecca Calvert, William Shackel-ford and Richard Shackelford, to them and their heirs forever.”

5 Ves. 308.

Booth v. Booth, 4 Yes, 399.

The consideiation of the whole will, where there is an apparent inconsistency in the parts, generally enables us to perceive the intention of the testator, and to give such a construction as will reconcile the conflicting clauses. The relative position of the clauses is of no importance, unless there is an irreconcilable inconsistency between them — then the last clause must prevail. The testator appears to have selected four objects of his bounty, his wife, daughter, grand children, and the ultimate remaindermen.

He contemplated three events as important contingencies, 1st. His having no child by his wife, Frances Withers, which occurred. And 2. Having no children at his death. And 3d. His daughter’s dying having no children, which were necessary to co-operate before the death of his wife, Frances Withers, or the remaindermen could take no *estate; these*events did not occur, and therefore that part of the will is as inoperative as if it had not been inserted, and has no weight in the construction of the other clauses, only so far as it may illustrate his general intention. When there is a clear vested interest, not divested, the express contingency on which it was to be divested not having happened, the construction of the clause giving the vested interest is not to be *affected*by any thing connected with the contingency that would otherwise have divested the estate. In *Harrison*v. Foreman, it was *held “*thart when there are clear words of gift, giving a vested interest to parties, the Court will never permit that absolute gift to be defeated, unless it is perfectly clear, that the *very case*has happened in which it is declared that interest shall not arise.” If the previous clauses give a vested interest to Richard W. Vanderhorst, and the contingency on which it was to be divested never happened, the vested interest remains as *if that contingency had not been annexed**59*to it.*The first inquiry is what estate did Richard W. Tan-derhorst take under the following words of the will, *“*and if, I should have no child by my loving wife, Frances Withers, I do then give the use of all my personal estate not mentioned, unto my daughter, Sarah Yanderhorst, during her natural life, and at her decease to be equally divided, share and. share alike, amongst all her children, to them and their heirs and assigns forever this is a residuary clause of the personal property of the testator, and brings the claim of the personal representative of Richard W. Yanderhorst within the rule, that when there is a residuary bequest, the intention of the testator must be very clearly indicated in order to postpone the vesting of the legacy. One of the objects of the rule, is to prevent an intestacy, which is always incompatible with the intention of one who makes a will. This is analogous to giving a legacy out of a particular fund, which becomes, at the death of the testator, separated from his estate and appropriated to a specific purpose, first for the use of Sarah Vanderhorst for her life ; and second, at her death, it is distributable between her children ; and there being no survivor-ship provided for by the will, it would seem that the interest was vested. It is very clear, if instead of the present legacy, real estate .had been given after the death of the tenant for life to her children as tenants in common,, but if either of them died *before her deaths*then to the survivor, there can be no doubt it would have been a *vested*estate, to be divested on a contingency of survivorship; and there is no reason why personal property does not pursue the same course. When a gift is made to B. with a charge to C. it is a distribution of the fund between the person to take in the present, and him who is to take in the future, and the gift to the latter vests in him at the same moment it does in the former. The general rule which has been drawn from the host of cases of this kind, with which the books abound, is that if futurity be annexed to the substance of the gift, the vesting is suspended, but if it appears to relate to the time of payment only, the legacy vests instantly. Words directing distribution between two or more objects at a future time, fall within the same category as a direction to pay, and therefore when they are engrafted on the gift, which would without these super-. added expressions confer an immediate interest, they do not postpone the vesting.

T E1ien, l. Brown C. Mackelwane, i Rus. E. R. 220-

v' i gro. c.’r. 123.

jai. on WilIg 7¿o &761. ’

Atkins v.Hill-x Aik^oo

Booth v. j®n°e°thJ. Mackehvane, Ante, •rar>

An important distinction is to be observed between a case where payment or distribution is deferred, not merely until the lapse of a definite interval of time, which will certainly arrive, but until an event which may or may not happen; the effect it would seem is to render the legacy contingent, unless perhaps in the case of a residuary bequest. If it appears that the distribution or payment, either on account of some *60interest being given to the person on whose death the gift is to take effect in possession, or of some difficulty attending c°llect:ing of the testator’s assets, the legacy will be considered independent of the time specified, and will vest at the death of the testator. When the testator has any ulterior object in deferring the vesting of the legacy to the time appointed for the legatee to take possession, then theie would be some ground to consider it contingent; but when the enjoyment of it by the first taker is the only obstacle that postpones the possession, it is no reason why it does not vest at the same instant.as the interest of the tenant for life.

7 MeMRe 363. CP Bums v. -Allen, Tái.’ ' Ward on LegJannan on Wills 777.

E Simons'"' 6 Taun°n|i3.

There was no other contingency annexed to the legacy’s vesting in Richard W. Yanderhorst, than in his mother: it was only necessary that the legacy should not lapse in the lifetime of the testator ; but if the daughter had died in her father’s lifetime, it is very clear the grandson would have taken the legacy; her death would not have defeated his rights- — -the particular estate, or rather interest to which she was entitled during her life, and the remainder to him vested at the same time; and there is no event designated in the will that has occurred that can divest this legacy. A contingent interest may be transmissible to the personal representative of the legatee, according to the nature of the contingency on which it is dependant. If the gift be to children who shall live to attain a certain age, survive a prescribed period, or a. specified event, the death of any child before the contingency* has the effect of precluding such deceased child out of the of presumptive objects; but when the contingency on ^1(3 vesting depends, is a collateral event irrespective of attainment to a given age. and surviving a given period, the death of any child pending the contingency, works no such exclusion, but simply substitutes and lets in the legatee’s re-preservative for himself. When the parties to take are ascertained, though their interest rnay be contingent, if they die before the contingency happens they take an interest that is transmissible to their representatives: • it would have been a different contingency if the limitation had been to the children of Sarah Yander-horst that might survive her.

The expression in the clause, “ if I should have no child by my loving wife, Frances Withers, I do *then*give,” clearly indicates the *time*when the *use*vests in Sarah Yanderhorst* and *remainder*in Richard W. Yanderhorst — the property was transmissable to them *eo insianti*(after the death of the testator) that event occurred ; and it would be inconsistent with the established rales of construction to hold that the remainder was suspended to the death of Sarah Yanderhorst, as the will provides for *no other event*to happen prior to the possession of the remainder man, hut the contingency of her *61having other childen, on whose birth an interest vests in them, but their births do not divest the estate in remainder that had, already vested in R. W. Yanderhorst, except *pro tanto*to let the younger children into a share. This was certainly the intention of the testator: he had at the making of his will and his death, but one daughter and one grandson, and his object was to make a suitable provision for his grand children, if he left no other child, and to put all his grand children up on an equality, as they must be the children of the same mother : this view is strengthened by the fact that the testator had made provision for his grandson Richard W. Vander-2 horst by-a previous clause: it cannot be implied from any part of the will that the testator intended that the issue any of his grand children that might die in their mother’s lifetime should not take the shares bequeathed to such deceased children : much less could it be inferred that he intended in case his grand children died in the lifetime of their mother, that at her *death*the estate should go over to the ultimate remaindermen in preference to her grand children.

Dey^s °303 304.’ v- Cre-Jar. 75, 497, 74. *ofton^iCm*327. 2 M’C. c. R. 25G.

Sroether v.' Wilcock, 9 Ves. 293. Peyton v. Barry, 2 P. W. 626. 3M.&K. 257.

A. limitation over disposing of the property to another, in case of the prior devisee dying under certain circumstances, always affords a strong argument in favor of the prior devi-see taking a vested interest: and the weight of the argument, especially as to the intention of the testator, is proportionally increased by the proximity of relationship, when the class of intermediate remaindermen are lineal decendants of the testator and the ultimate remaindermen are collateral and remote relations.

The same arguments may be applied to the succeeding clause of the will, by which the testator, if he should have no child by his wife, gives the use of all his real and personal estate to his daughter, Sarah Vanderhorst, during her life, and at her decease to be equally divided amongst her children, share and share alike, to them and their heirs and assigns forever. This differs from the preceding clause in two points, first, its subjects are real and personal property; second, it cannot be technically called a residuary clause; but these circumstances are immaterial, and do not diminish the force of the argument, or change the conclusion.

It is therefore ordered and decreed, that the legal representative of Richard W. Yanderhorst, deceased, is entitled to the one-third of the real and personal estate of which his mother, Sarah C. Shackelford, had the use for her life, under the will of her father, Richard. Withers, (with remainder to her children) and that the same be applied in due course of administration to the payment of the plaintiff’s debt: It is also ordered and decreed, that it be referred to the Master to report upon the accounts : the parties to be at liberty to apply for any further order that it may be necessary and proper to *62obtain: the costs to be paid out of the estate of Richard W. Yanderhorst, deceased.

Defendant, H. Y. Toomer, adm’r. Richard W. Yanderhorst, appealed from the decree of the Chancellor, on the following grounds:

1st. Because his Honor erred in deciding that the interest of Richard W. Yanderhorst, was a vested interest at the death of Richard Withers, the testator.

2d. Because his Honor erred in applying the rule for the opening of a vested remainder, to let in after-born children, to this case. The said rule being only applicable to marriage settlements, where children are never supposed to be *in esse*at the time of the execution of such deeds — or to wills in the nature of marriage settlements.

3d. Because the only rule truly applicable to the interpretation of the will of Richard Withers, is the intention of the testator, which in no form can be made to agree with the decree of the Chancellor, but by striking out a part.

4th. ■ Because the intention of the testator cannot be arrived at, but by supposing a contingent remainder vesting in the children of Sarah Yanderhorst at the time of her death, and not before. The condition being that they should survive both Frances Withers and herself, the estate being by the terms of the will otherwise limited over to third persons— grand children in such cases being by common interpretation of law included in the word “ children.”

5th. Because if the estate vested at all at the time of testator’s death in R. W. Yanderhorst, the whole of it vested, and the rule for letting in'-after-born children, applicable to real estate at times, is not applicable to the present bequest.

6th. Because his Honor erred in directing the debt of complainant to be paid out of these assets, other and *prior judgments*to a much larger amount than the whole of the probable sum thereof, being of record and remaining unsatisfied against the said R. W. Yanderhorst, in'the Court of Common Pleas of Charleston District, besides additional claims not yet ascertained by the administrator.

7th. Because the decree of the Chancellor is in other respects contrary to Law and Equity.

Jas. Smith Rhett, defendant’s Solicitor.

Caldwell, Ch.

delivered the opinion of the Court.

This Court concurs in the construction of the will of Richard Withers, given by the Circuit decree, that the children of Sarah Shackelford take a vested interest in the property devised and bequeathed to her during her life, and after her decease to be equally divided amongst her children, share and share alike; and that the share of her son, Richard W. Yanderhost, is liable to the payment of his debts. It is re*63ferred to the Master to ascertain and report who were the children of Sarah Shackelford, and who are their heirs and next of kin, and entitled to the distribution of their shares.

The sixth ground of appeal appears to have been taken from a misapprehension of the decree. The assets of Richard W. Vanderhorst are directed to be applied, in the due course of administration, to the payment of the plaintiff's debt; this was not designed to disturb the order in which the Act prescribes the debts of the deceased are to be paid by executors or administrators; if, however, creditors who might be entitled to a preference, neglect to prefer their claims, it is no reason why other creditors, who establish their demands, should not be paid. It is ordered and decreed that the appeal be dismissed and the decree affirmed.

Dunkin, CH. DARGAN, Ch. concurred.

JOHNSTON, CH. absent from indisposition.

Decree affirmed.