#### Wm. D. Kersh, Adm’r, vs. John L. Yongue, et al.

Property, real and personal, was conveyed to a trustee, in trust to apply the profits to the support of H. for life, and at her death to, “release and confirm unto the four present children of H., or the survivor or survivors of them, in equal shares, as tenants in common,” the absolute' right and title to the property. The four children all died in the lifetime of *H.:*— Held, that each one of the four children toot a vested, transmissible interest, liable to be divested in the event that he or she died in the lifetime of H. *and*that one or more of the others survived H;; and as they *all*died in the lifetime of H. no contingency had happened upon which their rights were defeated.

BEFORE JOHNSTON, OH., AT FAIRFIELD, JULY, 1854.

JohnstoN, Ch. This cause was heard upon the single question made by the amended bill, as to the construction of a deed executed by Henry Moore on 19th December, 1839, conveying certain property, real and personal, to William Moore, “in trust, however, that the said William Moore shall apply the uses, issues and profits of the above mentioned property, both real and personal, to the support and maintainance of my daughter, Harriet Watson, together with her household, for and during the term of her natural life; and upon the further trust, that at and after the death of my said daughter, the said William Moore, his heir or assigns, shall convey, release and confirm- unto the four present children of my said daughter, or the survivor or survivors of them, in equal shares, as tenants in common, the absolute right and title in and to all the above mentioned property, both real and personal, together with the increase thereof, and to their heirs forever.”

At the date of the execution of this deed, Mrs. Harriet Watson, for whom a life interest was thus provided, had four children, to wit: John H. Watson, James L. Watson, Eliza A. *101Kennedy, wife of Joseph Kennedy, and Sarah S. Watson, who subsequently intermarried with the defendant, Thos. Stitt. These four children all died in the life-time of Mrs. Watson, the life-tenant, the two sons unmarried and without issue, the two daughters leaving their husbands and children surviving them. Mrs. Watson died in June, 1852.

The question submitted for the judgment of the Court is, whether the interest of these four children, thus dying before the life-tenant, reverts to the estate of the grantor, or is transmissible to their distributees.

There can be no dispute as to the general principle, that in case of doubt, instruments of this character are to be construed most strongly against the grantor, and, .therefore, interests taken under, or by virtue of such instruments, are tó be the largest of which the words are susceptible. The Court will not hold there is a reverter, in any case where any other reasonable construction can be given.

Here, the legal interest is in the trustee, but the principle of construction in this Court is the same as regards legal and equitable interests, and the interest of Harriet Watson may therefore properly be regarded as a life-estate. Then, what interest do her “four present children” take in remainder. The trustee, at and after the death of the life-tenant, is to convey unto the four present children of the said daughter, or the survivor or survivors of them, in equal shares, as tenants. in common, the property, real and personal.

As above stated, we must conclude that the object of the grantor was to convey to them the largest interest possible, not merely an interest at the death of the life-tenant, but the interest passed immediately out of him to these four children, or to the survivor of them at the expiration of the life-estate; that is a vested interest, to be enjoyed thereafter, unless one or more of them should be surviving the life-tenant, in which event, such survivor or survivors would have taken, to the, exclusion of such of them as may have died during the continuance of *102the life-estate. No such event having happened, the original gift is not divested. Whenever the grant, in the first instance, is perfect, it is only to be diminished upon the happening of the contingency which is to defeat it. But here the contingency has not happened; there are no survivors of the description intended by the grantor (i. e. survivors of the life-tenant), to take to the exclusion of those who have predeceased them, and the remainder-men take under the terms of the original grant, without reference to the defeating contingency.

It is adjudged and declared, that there is no reversion to the estate of the grantor, Henry Moore, but that the interest taken by the four children remained in them, and is transmissible to their distributees.

The whole case has not been sufficiently brought to the attention of the Court to enable it to express an opinion as to the costs, and this question is reserved.

The complainants appealed and now moved this Court for a reversal of the decree, on the ground:

That inasmuch as the four children of Harriet Watson all died before their mother, the Chancellor should have decreed the property, consisting of land and negroes, to revert to- the representatives of the donor or his heirs.

Buchanan, for complainants.

*Boylston, Me Cants,*contra.

The opinion of the Court was delivered by

DargAN, Ch.

This Court concurs in the construction which the Chancellor, in his circuit decree, has given to the deed of Henry Moore, dated the 19th December, 1839.

It seems to me that nothing more is necessary or proper to *103be said upon this occasion, than to show that the views of the Chancellor who tried the cause on the circuit, as expressed in his decree, are fully sustained by authority.

In *Perry*vs. *Wood,*3 Ves. 204, the testator gave a legacy to A. for life, and after her death to her children; if she should leave none, to B. and C., share and share alike, or to the survivor. A. died without children. It was held to be a vested interest in B. and C., upon the death of the testator, as tenants in common.

In *Sturgess*vs. *Pearson,*4 Madd. 411, the testator bequeathed as follows : *“*I give the interest and dividends of one other fifth part thereof, to be paid to my daughter, Anne Tat-nall, during her natural life ; and after her decease, I give the same to be equally divided among her three children, or such of them as shall be living at her decease, the same to be paid to them at their age of twenty-one years.”

The children all died in the lifetime of the tenant for life. It was held, that they took vested interests, transmissible to their representatives; for the vested interests first given by the will were by the form of the expression only defeated, in case there should be some, or one, and not all, of the children living at the death of the tenant for life. That event did not happen: consequently, the vested interest was not defeated.

In *Browne*vs. *Lord Kenyon,*3 Madd. 410, the testatrix gave ¿61000 in trust for several persons successively for life, and after the death of the survivor upon trust, to pay the principal to O. But if he was then dead (which event happened), then to his two brothers in equal shares, or the whole to the survivor. Both the brothers were living at the death of the testatrix, but died during the continuance of the life estates. It was decided, that they both took vested interests at the death of the testatrix, subject to be divested, if only one of them should survive the tenants for life.

In *Harrison*vs. *Foreman,*5 Ves. 207, the testator bequeathed a certain fund to A., for life, and after her decease to *104two other persons, in equal moieties, and in the event of either of them dying in the lifetime of A., then the whole to the survivor living at the decease of A. It was held, that they both took vested interests at the death of the testator, transmissible to their representatives. The vested estate given to the remainder-men, was only to be defeated on the condition that one should survive the other on the death of the tenant for life; an event that did not happen.

In *Belk*vs. *Slack,*1 Keen, 218, the testator, William Belk, gave the residue of his real and personal estate to trustees, upon trust, to pay the interest and produce thereof to his mother, during her life; and after the death of his mother and daughter, he gave the same to his brother, George Belk, and his sister, Hannah Belk, to be equally divided between them, or to the survivor of them. George and Hannah Belk both died during the lifetime of the testator’s mother and daughter. And it was held, that the representatives of George and Hannah Belk were respectively entitled to the several moieties of the residue.

In *Wagstaff*vs. *Crosby,*2 Colyer, 746, the testator bequeathed ¿61500 stock to trustees, in trust, for his daughter, for life, and after her decease for her children, but if she should leave no children, he directed his executors to stand possessed of the fund, in trust, to pay or transfer the same equally unto and between his three nephews and his niece, and the survivors or survivor of them, share and share alike. The nephews and niece survived the testator, but died in the lifetime of the daughter, who died without ever having had a child. It was adjudged, that the representatives of the nephews and niece were entitled in equal shares.

This case, *mutatis mutandis,*is the case now before this Court for adjudication. See also *Maberly*vs. *Strode,*3 Ves. 455; *Russell*vs. *Long,*4 Ves. 551.

It seems to this Court that the Chancellor has not only given *105a rational and benignant construction to the deed in question, but one that is well sustained by authority. ■

It is ordered and decreed that the Circuit decree be affirmed, and the appeal dismissed.

Johnston, Dunkin, and Wardlaw, CC., concurred.

*Decree affirmed.*