#### *Hester Perdriau and others*vs. *Henry H. Wells and others.*

Testator bequeathed property to his wife for life, and directed the same, after her death, to be divided between Ann M., the children of his brother Peter, and the childron of his sister Hester, “ alive at the death of my wife, share and share alike, for and during their natural lives, and after their death to their respective children forever. It is my will, that if the said Ann M., either of the children of my brother Peter, or sister Hester, should die in my life time, or the life time of my said wife, that the child or children of such one or more of them as may so die, take the part of their deceased parent.” Peter and Hester, the brother and sister of testator, were both dead when the will was executed: at that time, and at the death of testator, there were eight children of Peter, and fivo of Hester, living: testator’s wife also survived him *:*— jELeldy that, at the termination of the life estate, Ann M. and the children o^ Peter and Hester will take equally and per *capita*— the children of such as may be dead taking their parent’s share.

*Before*Dargan, Oh. *at Chambers,*December, 1851.

Samuel Perdriau, of Sumter, the testator, died in the year 1843. His will, which was executed and dated July 15, 1842, was drawn several years before, its execution, and while his sister Hester Wells was alive. She, however, had died before it was executed. The material clauses are as follows:

*“First.*I devise and bequeath unto my brother John Per-driau’s widow, Mrs. Ann Perdriau, for the term of her natural life, the use of my winter plantation, situate in Williamsburgh District, whereon she now resides.

*“Second.*It is my will and desire that my negroes and other personal estate be kept together on my plantation whereon I now reside in Sumter District, and are not to be removed therefrom during the life of my beloved wife, Hester Perdriau, to whom I give, bequeath and devise the said plantation, negroes, and all other my real and personal estate, of whatever nature, description or kind, for and during the term of her natural life. I also devise, bequeath and give to my said wife one-half of the said real and personal estate to be disposed of by her, by will, but if she make no will, then to be delivered to her representatives. Her said half is not to be allotted off to her in her life time, but to be delivered after her death to her executor or *21administrator. The other half of my’ said real and personal estate, (given to my said wife for her life time,) I will and devise be sold by my acting executor, on such terms as he may think proper. But it is my wish and desire that my negroes he sold in families, that is to say, that husband and wife and young children not to he parted, but to be sold together.

“The proceeds of said sale of the said half of the estate, given as aforesaid to my wife for life, to be divided between Ann M. China, wife of John China, jr., the children of my deceased brother, Peter Perdriau, and also the children of my sister, Hester Wells, alive at the death of my wife, share and share alike, for and during the term of their natural lives, and after their death, to their respective children forever ; the parts of the females, my nieces and Ann M. China, to be to their sole and separate use. It is my will that if the said Ann M. China, either of the children of my brother Peter or sister Hester, should die in my life time, or the life time of my said wife, that the child or children of such one or more of them as may so die, take the part of the deceased parent. It is further my will that the share that my nephew, James Perdriau, may have allotted to him, be delivered to Ann L. Clark, as his trustee, to be managed for him, she giving to him such part thereof as she may deem necessary from time to time. I do hereby authorize and empower my acting executor to appoint five persons, (any three to act, if all cannot attend,) to divide my estate after the death of my said wife, and do all such other acts as may be necessary to carry this my will into full eifect, as fully as if he were authorized by the Court of Ordinary or Equity.”

The children of Hester Wells and Peter Perdriau, who were livings when the will was executed and at the death of the testator, were Mary E. Linam, Hester Harvin, Richard P. Wells, Peter E. Wells, Warren S. Wells, Henry H. Wells Martha P. Tindall and Lydia A. Tindall, children of Hester Wells, and James Perdriau, Hester Ramsay, Ann L. Clark, Lydia A. Evans and Mary G. Barrett, children of Peter Perdriau. Of these thirteen persons, three had died since the testator, each leaving issue, to wit, Martha P. Tindall, *22who left three children', Lydia A. Tindall, who left one child, and Mary G. Barrett, who left eight children.

The bill, which was filed by Hester Perdriau, the widow of the testator (Ann M. China and all other persons interested being parties) prayed that the slaves of testator, some eighty in number, might be sold by order of the Court; and (the said Hester Perdriau having consented to relinquish her interest for life in one-half) that the proceeds be divided, “by allotting one-half thereof to the said Hester Perdriau, as her own right and property, and the other half to the persons entitled to receive the same as at her death, in the proportions prescribed by the said will.”

His Honor made an order for the sale of the slaves by the Commissioner, on credit — bonds with good sureties to be given by the purchasers: — and, in relation to the division of the proceeds, he decreed as follows ;

“ That on receiving the said bonds, the Commissioner do deliver over so many of the same as will equal one-half of the amount of the said salo, to the said complainant, Hester Per-driau, in full discharge of all her right and interest under the said will, to and in all the said negro property to be sold; and that when collected, he divide the proceeds of the balance of the said bonds into three equal parts — one part thereof to be the share of the said Ann M. China; another third part thereof to be the share of, and to be equally divided between the children of the said Peter Perdriau, living at testator’s death, and of the children of such of the children of the said Peter Per-driau, as may have died since the testator — the last to take, among them, the share the parent would have taken if alive; and the other third part to be the share of, and to be equally divided between the children of the said Hester Wells, living at testator’s death, and of the children of such of the children of said Hester Wells as may have died since the testator, the last to take among them the share the parent would have taken, if alive.”

From so much of the decree as is recited above, Richard F. *23Wells and others appealed, and moved this Court that the same be so modified, that Ann M. China, instead of taking one-third part of said proceeds, shall take one-fourteenth part thereof; that each of the four children, now living, of Peter Perdriau, deceased, and each of the six children, now living, of Hester Wells, deceased, shall take one other fourteenth part thereof; that the children of Mary G. Barrett, deceased, shall take, among them, one other fourteenth part thereof; that the children of Martha P. Tindall, deceased, shall take, among them, one other fourteenth part thereof; and that the child of Lydia A. Tindall, deceased, shall take the remaining fourteenth part thereof.

Richardson, for appellants.

The only question presented by the appeal is as to the proportion in which the parties take; that is to say, Does Ann M. China take one-third, the children of Peter Perdriau one-third, and the children of Hester Wells the remaining third, as the Chancellor has decided; or do they all take equally andy>er *capita,*as the appellants contend?

It is proper, perhaps, in the first place to remark, that the recent decisions in *Templeton*vs. *Walker*(3 Rich. Eq. 543) and *Collier*vs. *Collier*(Id. 555) have no application -whatsoever to this case. Those cases were .decided on the principle, that inasmuch as the testator 'has himself made it necessary that resort should be had to the statute of distributions for the purpose of ascertaining the objects of his bounty, resort must also be had to the statute for the purpose of ascertaining the proportion in which they take. *Here*the testator has made no reference to the statute necessary. Who the *•children*of Peter Perdriau and Hester Wells are, can be known without resort to the statute of distributions.

There is but one class of decisions which has direct application to the case now before the Court, and that is the general class, where there is a bequest or devise to a designated individual and to a class or classes of individuals. But this general class is subject to a sub-division, which, to avoid circumlocution, will be called class No. *1*and class No. 2.

Class No. 1. To this class belong the cases, which fall with*24in the following principle, as laid down by Chancellor Harper, in *Cole*vs. *Creyón*(1 Hill, Ch. 319.) “If there be a bequest to an ascertained individual and to a class of unascertained individuals (to be ascertained at some future time after the death of the testator) it vests one-half in the said individual and the other half in the individuals of the class collectively when they are ascertained.” To this class, in addition to the case of *Cole*vs. Creyón, belongs the case of *Conner*vs. Johnson, (2 Hill, Ch. 41.) *Cole*vs. *Creyón*furnishes an illustration of the rule. There the bequest was to testator’s wife for life, and after her death to Alexander Creyón and the children of Elizabeth Cole. Elizabeth Cole was living at -the death of the testator. It was held, that all the children of Elizabeth Cole born after the death of the testator and before the death of the tenant for life, were entitled to come in, qnd that as the individuals were unascer-tained when the testator died, Alexander Creyón took one-half of the property bequeathed, and the children of Mrs. Cole the other half.

Class No. 2. To this class belong the cases which fall within the following rule: “If there be a devise to an individual designated by name and to other individuals designated as a class, as to A, and the children of B ; or if it be to the children of A and the children of B, all the individuals take equally and *per*capita.” Per Chancellor Harper in *Conner*vs. *Johnson,*(2 Hill, Ch. 43.) To this class belong the cases of *Black-ler*vs. *Webb,.*(2 P. Wms. 283,) *Butler*vs. *Stratton,*(3 Bro. Ch. Rep. 367,) and *Lady Lincoln*vs. *Pelham,*(10 Yes. 176.) *Butler*vs. *Stratton*furnishes an illustration of the rule. There the devise was to “ John Stratton and Robert Stratton and the children of Mary Patterson.” Mary Patterson had four children living at the death of the testator. Held, that they all took equally and *per capita.*

The only remaining question seems to be, to which of these classes does the case now before the Court belong ? If to class. No. 1, then the decision of the Chancellor, at Chambers, was right: if to class No. 2, then the decision was wrong and the *25appellants are entitled to have the decretal order so modified that the parties shall take equally and *per capita.*

the will, as was Mrs. Ann It is so plain that this case belongs to class No. 2, that it is scarcely necessary to discuss the question. Peter Perdriau and Hester Wells having both died before the testator (they were both in fact dead when the will was executed) could of course have no children bom after the death of the testator, as was the case in *Cole*vs. *Creyón.*The individuals therefore of both the classes (that is, the children of Peter Perdriau and Hester Wells) were as certainly designated and as much ascertained, at the death of the testator, by the terms of description used in if,:

But it may be said, th: of my wife,” brings this class No. 1. It should be. as well to Mrs. China as live at the death ase' back again -sfithin the rule of _"e(f'-(íMí3á}£f(texpression applies the children of PAter Perdriau and Hester Wells. To take lifidir rtBc wllI^íü'e jilso must be alive at the death of the tenant fiftvlifa. ^ y

That expression may be held tamake' the remainders contingent ; but the question is not, whether the remainders are contingent, but whether the individuals are ascertained. Sir William Blackstone divides|contingent remainders into two classes : 1st. Where the remainder is “ to a dubious and uncertain person,” and 2d where it is to take effect on *“*a dubious and uncertain event.” 2 Bl. Com. 169. At page 170 he gives an illustration of the 2d class, and it is the very case before the Court: “ Where,” says he, “ land is given to A for life, and in case B survives him, then with remainder to B in fee ; here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A.”

It may again be said, that, in the event of the death of a child before the tenant for life, unascertained legatees are substituted in the place of such child; but that can hardly make any difference in the construction when the same objection applies to the bequest to Mrs. China herself. Should she die in *26life time of the tenant for life, Mrs. Perdriau, unascertained legatees, to wit, her children, take her place.

Much might be said upon the particular words of the will, and especially upon the expression “ share and share alike; ” but, upon the views above taken, it is submitted that the appellants are entitled to their motion.

*DeSaussure,*for Mrs. China,

cited 1 Jann. on Wills, 277, and note, and contended, that as to the objects of a testator’s bounty and the proportion in which they shall take, a will speaks from its date, or the time it is drawn. When the testator here drew his will, Hester Wells, his sister, was alive. It could not, therefore, have been known, then, but that she would have other children and survive both the testator and his wife, the life tenant. The objects of the testator’s bounty were, therefore, so far as the children of Hester Wells were concerned, unascertained at the time of the draft of the will; and, in this view, he submitted that the case was within the principle upon which the case of *Cole*vs. *Creyón*.was decided. He also contended that the words “alive at the death of my wife ” did not apply to Mrs. China. That they applied to the children of Peter Perdriau and Hester Wells, only, and they, therefore, were the persons who were to “ share and share alike.”

*Moses,*for the plaintiffs.

The opinion of the Court was delivered by

Johnston, Oh.

Samuel Perdriau, by his last will, gave his negroes and other personal property, and the plantation on which he resided, to his wife Hester, during her natural life. And, at her death, he directed that one-half thereof be delivered to her next of kin.

The other half he directed to be sold by his executor: and that “the proceeds of said sale (of the said half of the estate”) “ be divided between Ann M. China, wife of John China, jr.> the children of my deceased brother Peter Perdriau, and, also’ the children of my sister Hester Wells, alive at the death of my wife, share and share alike, for and during the term of their *27natural lives, and after their death, to their respective children forever : — the parts of the females, my nieces and Ann M. China, to be to their sole and separate use. It is my will,” he proceeds, “if the said Ann M. China [or] either of the children of my brother Peter or sister Hester should die in my life time, or the life time of my said wife, that the child, or children, of such one or more of them as may so die, take the part of the deceased parent.”

This bill was filed by Hester, the widow of the testator, to obtain the assent of the Court to her relinquishing one-half of the negroes, — for a sale of that half, and for a present distribution of the proceeds among the parties to whom they were bequeathed at the expiration of the life estate.

A decree to that effect has been obtained, from which no appeal is taken except upon one single point. The decree divides the proceeds of sale into three equal parts, and directs one of them to be allotted to Ann M. China, one to the children of Peter Perdriau, and one to the children of Hester Wells. The appellants contend, that Ann M. China, instead of taking one-third part of said proceeds, should take only an equal part with each of the children of Peter Perdriau and Hester Wells: (the issue of any deceased party to represent that party, according to the will.)

In my opinion the appeal is well taken.

It is a material circumstance in this case, that at the death of the testator, Peter Perdriau and Hester Wells, his brother and sister, for whose children his will was intended to provide, were both dead : and their children were then so ascertained, that no additions could be made to their number.

If the testator, under these circumstances, had given an estate directly and unconditionally,- and not suspended upon any prior estate, to Mrs. China and .the children of his deceased brother and sister, it is clear that she and they would have taken each an equal share. As is said, in *Conner*vs. Johnson, (a) “if *28there be a devise to an individual, designated by name, and to other individuals, designated as a class: as to A and the children of B — or if it he to the children of A and the children of B — all take equally and *per capita.”*See also *Blackler*vs. *Webb*(2 P. Wms. 283 ;) *Lincoln*vs. Pelham, (10 Ves. 176;) and *Butler*vs. *Stratton,*(3 Bro. Ch. R. 367.) The latter case serves as an illustration of the rule. The devise was “ to John Stratton, and Robert Stratton, and the children of Mary Patterson.” Held, that they all took equally, *per capita.*

The combination of the name of a particular individual with classes of children, under such circumstances, cannot produce any effect other than would follow, if the bequest were simply to two or more classes of children. The division must be *per capita.*A case of the latter description is furnished in *Ex parte*Leith;(b) where the devise was of “ two shares to my deceased sons’ (William and James’s) children.” Without much reliance on the words i! equally to be divided between them,” which followed; it was held, that the two shares, considered as amalgamated, were to be divided among all the children *per capita.*

If all the legatees be ascertained at the time of the gift, and the gift be direct and unconditional, then, taking by purchase, they must take, each, an equal share. I know of no exception" to this rule, except the late cases of *Templeton*vs. *Walker**(c)***and *Collier*vs. *Collier.**(d)***But these cases have, in fact, no application to the principle I am now considering. Those cases proceed on the principle, that, where a testator has given to the *“*heirs ” of a particular individual, it being necessary to resort to the statute to ascertain who the heirs are, it may be resorted to for the additional purpose of ascertaining the proportion to which the statute would entitle them: — upon the implication, that where the gift is to “ heirs,” the intention is to give them inheritable portions: — that the beneficiaries are to be presumed to stand in the affections of the benefactor, according to the standard to which he himself has appealed.

*29In the case before us, the testator has imposed no necessity to refer to the statute. Who the *children*of his brother and sister are, can be known without resorting to it. And, indeed, whatever information we might obtain from it, in relation to a division among the children of the brother and those of the sister; it can furnish none respecting the proper division between them and Mrs. China. So that the cases I have mentioned have no application to the subject now under consideration.

I have already stated what, in my opinion, would be the proper construction, if the bequest in this case were direct and unconditional.

The bequest is, however, not of that character. It is limited upon a prior life estate; and it is conditioned upon the remainder-men surviving the life tenant. Owing to this circumstance, it has been supposed to fall within the principle of *Cole*vs. Creyon.(e)

I do not think it comes within the principle of that case.

There, after a life estate given to the wife of the testator, the bequest was to Alexander Creyón and the children of Elizabeth Cole, — testator’s married niece, who survived him.

There are words indicating that the division was to be made equally between them: which perhaps were too little regarded in the decision. But it is not necessary to attend to that. It is the leading principle adjudged, which we are now to ascertain and apply.

It was held in that case, that Creyón was entitled to one-half of the estate, and that the other half was divisible between all the children of Elizabeth Cole who came *in esse*before the expiration of the prior life estate.

The reasons given for this decision were, — that Creyón, being a person named and not described, took a vested interest in the remainder, at the death of the testator: but that Mrs. Cole’s children, taking by description as children, from the necessity *30of the case, could take only a contingent interest, their number being incapable of being ascertained until the death of the life tenant. This difficulty arose from the period of division being postponed until that event: because the law is familiar, that where a class of described persons are to take on a future event, all who can bring themselves within the description, at that time, are equally entitled to take. There was a contingency, therefore, as to the children, but hot as to Creyón; — by which their interests, and not his, were aifected. Again: there was a diversity between the parties, in respect to the time when their titles accrued. The parties could not take as joint tenants, because the right of Creyón vested in interest at the death of Hicklin, the testator, while that of the children remained contingent until the death of Hicklin’s widow.

But, as I read the will of Perdriau, there is no interest of a remainder-man that is not subject to equal contingency. The difference between Creyón and Mrs. China is, that his was a certain and uncontingent interest from the death of the testator; her’s is subjected to the same contingencies as to surviving the life tenant as are applicable to the children. All the conditions which are applied by Perdriau to his brother’s and sister’s children, he applies also to Mrs. China. The- persons who are to take, are to take life estates only, with a limitation to issue, and the females, including Mrs. China, are to take separate estates : and contemplating that they might not be alive at the death of his wife, which he had at first view imposed as a condition, (and, adding what occurred to him; — i. e,, that they might possibly die in his own life, so as to occasion a lapse,) he provides that, in either of those events, their children, if they left any, should take in their place : not by way of *remainder*to their life estates, but as *substitutes,*— and, in that case, absolutely.

The reasons of the decision in *Cole*vs. *Creyon*(viz. the fact that there was a fixed and certain interest in one party and a contingent interest in the others, rendered it necessary to distinguish between them,) do not apply here.

*31When, on the face of the will, 1 see not only that all parties are put upon the same footing, hut are to *“*share and share alike,” I do not perceive any ground to doubt, that the distribution should he made, as contended for in the ground of appeal.

. It is ordered, that the decree appealed from he modified according to this opinion: and that in all other respects, it he affirmed.

Dunkin and Waudlaw, OG., concurred.

*Decree*modified,

(a)

2 Hill, Ch. 43.

(b)

1 Hill, Ch. 153.

(c)

3 Rich. Eq. 543.

(d)

*3*Rich. Eq. 555.

(e)

 1 Hill, Ob. 311.