#### William J. Cureton and others *vs.*Benjamin H. Massey and others.

*Will*— Construction *of*— Lapsed *Legacies.*

Legacies to two of testator’s nieces by name, who both died before testator, leaving children. *B.eld,*that the legal consequences of the lapse were not prevented by certain declarations of testator, that the great purpose of his making a will was “to include some of his grandnephews and nieces in the distribution of his estate,” who would be excluded if he should die intestate, and that “the children of a deceased nephew and niece herein named will count one, and take among them the shares of their deceased parents if they had been living.”

BEFORE INGLIS, OH., AT LANCASTER, JUNE, 1860.

Thomas Cureton, the testator in the cause, died in November, 1858. His will is as follows:

State of South Carolina — Lancaster District :

In the name of God, Amen. I, Thomas Cureton, senior, of the district and State aforesaid, being advanced in life, and somewhat afflicted with disease, and believing that there is a great propriety in my making a will, do herein and hereby make this my last will and testament, to pass and dispose of all the estate, real and personal, I now own or may possess at my death.

First. I give to the children of my brother, William Cureton, late of Alabama, deceased, the- sum of five hundred dollars, to be equally divided among them.

Second. I give to my nephew, James 0. Massey, the notes and accounts I now or may hold and have against him at my death.

Thirdly. I have no brother or sister alive; they are all dead, and have left children, and some of their children have *105died; and if I was to die intestate, some of my grandnephews and nieces that I desire to take paft óf my estate would not be entitled, under the Statute of Distributions;- and this is the great purpose of my making a will, to include some of my grandnephews and nieces in the distribution of my estate; and I now and herein state how, and in what manner, and to whom and what persons will receive my whole real and personal estate, situate in this State and also in North Carolina; that is to say, all my negroes, now about forty-six, all my stock of cattle, hogs, horses, mules, all my lands; composed of many tracts, both in this State and the State of North Carolina, my cotton crop, plantation tools and implements, my notes, cash, and all choses in action, (after the payment of my debts and the legacies herein stated,) and also all and every species of property and estate which I may own at my death, shall be divided among the following persons, and in the following proportions, that is to say: to my nephew, "William Jackson Cure-ton, one share; to my niece, Sarah Kimbrell, one share; the children of my deceased nephew, Thomas K. Oureton, one share; the children of my deceased nephew, Jere Oureton, Jr., one share; the children of my deceased niece, Ann Potts, one share; the children of my deceased nephew, John Oureton, one share. These are of the family of my brother, Jeremiah Oureton, Sr. Also, to the descendants of my sister, Elizabeth Massey, as follows: that is, to Benjamin H. Massey, son of Everard, one share; to Henry Eeese Massey and Mary Massey, children of Henry, one share; to the children of William Massey, deceased, viz., Eebecca, Jane E., Sarah A., and William H., among them, one share; to the children of Charlotte Massey, deceased, to wit, L. H. Massey, Charlotte Cureton, the children of H. T. Massey, deceased, and of Dr. G-. L. Massey, deceased, among them, one share; also, to the children and descendants of my deceased sister, Mary Haile, as follows: that is, *106to Col. James C. Haile, one share; to Mrs. Matheson, wife of C. Matheson, one share; to Elizabeth Knox, one share ; to the children of Benjamin Haile, Jr., deceased, among them, (names not known,) one share; to the children of Susan Lanier, (names not known,) among them, one share; also, to the children of my deceased brother, Everard Cureton, as follows: to James B. Cureton, one share — there are several other children of my said brother Everard, but I do not now recollect their names, but each and every one of the children of my said brother Everard is to have one share in the distribution of my estate. These are the persons who will receive my whole estate. Each nephew and niece will count one, and the children of a deceased nephew and niece herein named will, among them, count one, and take among them the shares of their deceased parents if they had been living.

In the division I desire that my faithful slaves, Cupid and his wife, and Charlotte, shall choose their master, and be allotted to whoever they may desire to live with.

I nominate, constitute, and appoint William Jackson Cureton and Dr. Thomas K. Cureton executors of this my last will and testament, and I revoke all former wills, and declare this to be my last will and testament. In witness whereof, I have hereunto set my hand and seal this sixth day of October, 1857.

Catherine Matheson, wife of C. Matheson, and Elizabeth Knox, two of the legatees named in the will, died after the will was made and before the testator, each leaving children who survived the testator, and the only question made on the appeal was whether their legacies had lapsed.

So much of the decree of his Honor, the Circuit Chancellor, as relates to this question is as follow's:

Inglis, Oh. The purpose of the plaintiffs in this case is, to have a distribution of the estate of the late Thomas *107Oureton, in conformity -with the directions of his will, and in order thereto to obtain from the Court an authoritative construction of certain clauses of the will which have come to be considered of doubtful interpretation. Under an order heretofore made, the whole estate has been sold by ■ the Commissioner, and it only remains, by a solution of the doubts stated by the executors, to ascertain the mode of distribution.

•X* vr •X* ■X' «H* «$£

In distributing among “ the children and descendants” of his deceased sister “Mary,” he disposes thus: “To Mrs. Matheson, wife of 0. Matheson, one share; to Elizabeth Knox, one share.” Each of these nieces of the testator died in the interval between the execution of his will and his death, leaving children. On behalf of these two families of children, it is claimed that each family is entitled to take, by representation, the share thus given to the mother. The other legatees, or some of them, insist that the devises and legacies to Mrs. Matheson and Mrs. Knox lapsed by the death of the devisee, &c., in the testator’s lifetime, and must fall into the residue, or, rather, must, by reducing the *number,*increase the *value*of the shares into which the residue is distributable.

If Thomas Oureton had died intestate, his nephews and nieces then living would have taken by descent his whole estate among them in equal shares; and the children or remote issue of such as were then deceased would have been excluded. This result would have disappointed his wishes. “ If I was to die intestate,” says he, “ some of my grandnephews and nieces that I.desire to take part of my estate would not be entitled under the Statute of Distributions, and this is the great purpose of my making a will, to include some of my grandnephews and nieces in the distribution of my estate.” It is quite certain, however, as well from the form of expression here used as from the *108disposition actually made, where he proceeds to state how, and in what manner, and to whom and what persons will receive his whole real and personal estate, that neither all his then living nephews and nieces, nor the children of all such as were then deceased, were equally or at all within the purpose of his bounty. There cannot be a doubt that the whole issue, in whatever generation, of his brother William, for some cause not appearing, are *K*cut off” with a comparatively trifling pecuniary legacy. It is, however, true, as is manifested by the form of words in which he constantly expresses himself, that in every instance provision is made for the children of every deceased nephew or niece who would, if living, have been in person a partaker in his bounty. And it cannot therefore be doubted that if the testator had happened to anticipate and bring within the range of his thought at the moment the possibility that any nephew or niece for whom he was providing a share might die, leaving issue, before his will should take effect, he would have adapted the terms of bequest to meet such contingency, and given the parents’ shares to the issue, as a substitute. Every one who reads what the testator has written will most probably be persuaded of this from the carefulness with which he has, in so many instances, remembered the issue of nephews and nieces whom he knew, at the making of the will, to be deceased. It is, however, too plain that he was contemplating only the state of things existing at the time, and has not provided for the consequence of such an event as has occurred in .the instances now under consideration. The question is one of construction purely, and can be answered only by declaring what intention, if any, the testator has expressed, in reference to the particular case or class of cases. If he has wholly failed to provide for the contingency which has happened, the Court may deplore his want of forethought, but cannot supply the omission resulting therefrom. The *109judgment of the Court on this part of the case is, that the gifts to Mrs. Matheson and Mrs. Knox lapsed by their deaths, severally, in the lifetime of the testator. The gift to each of them is of one share in the general residue of his whole estate, described by himself as *“*consisting of many tracts of land,” besides divers sorts of personal chattels. If this had been a bequest of specific property, personal and real, under the distinction between the two kinds of property which the law — at least as it stood at the date of the testator’s death — recognized, the realty thus lapsed would have descended to, and been distributable among, the heirs at law of the testator as intestate property, while the personalty would have fallen into the residuum. It is probable that our Act of 1858, (sec. 1, 12 Stat. 700,) which went into operation only some few weeks after the death of Thomas Cureton, by taking away the distinction between realty and personalty, as to the time at which the will speaks in reference thereto, has also removed the grounds of this distinction, as to lapsed devises and lapsed legacies, and in a proper case will be held to have abolished it. The present, however, is not a case of specific gifts lapsed, but of shares in the general residue itself; and they do not, therefore, either as respects the realty or the personalty, fall into the residuum, or, by reducing the number, go to swell the value of the shares into which that is to be divided, but descend, as undisposed of, to the distributees, or next of kin, under the statute, *(Bagwell*vs. *Dry,*1 P. Wms. 700; *Page*vs. *Page,*2 P. Wms. 489; *Peat*vs. Chapman, 1 Ves. Sr. 544; *Ackroyd*vs. *Smith,*1 Br. C. C. 503; *Salt*vs. *Chattaway,*3 Beav. 576.)

* -x * * * * * *

It is ordered and decreed that the distribution of the proceeds of the estate of'Thomas Cureton be made by the Commissioner of this Court, in conformity with the directions of the will, as the same are expounded in the par*110ticulars considered by the Court in tbe present judgment. The cost of the cause, if there be any not hitherto provided for, to be paid out of the general estate.

The defendants, children of Catherine Matheson and Elizabeth Knox, appealed from the decree of his Honor, on the ground that, upon a proper construction of the will of the testator, the legacies to Catherine Matheson did not lapse, but passed to their respective children.

*Kershaw,*for appellants.

*Williams,*contra.

*Curia,*per Dunkin, 0. J.

This Court concur with the Chancellor, and for .the reasons stated in the decree.

The appeal is dismissed.

"Wardlaw and Inglis, A. J., concurred.

*Appeal dismissed.*