#### William B. Risher, and others, *vs.*Benjamin B. Adams, Executor, and others.

By marriage settlement, the intended wife’s property was limited to her separate use for life, and after the death of the said J. H., the intended wife, then to the use of her four children (she being a widow) by name, “ and also of the issue of the said J. H. by her intended husband, who shall be alive at the time of the death of the said J. H., and who shall live to attain the several and respective ages of twenty-one years, or days of marriage; to hold the said trust estate, upon the attaining the said ages or days of marriage, to such children and issue, if more than one, to them, &c., forever. But in case the said J. H. shall happen to die without leaving either of the above-named children and issue, &c., or such children and issue should all die in minority and unmarried, then upon the death of the said J. H.,” over, *&c.:*— Held, that the interests of all the remainder men, the *children*named, as well as the *issue,*were contingent, and depended not only upon their coming of age or marrying, but also upon their surviving J. H.

Where the bill is dismissed as to the plaintiffs, they being entitled to no relief, the Court will not decree between the defendants.

BEFORE JOHNSTON, OH., AT COLLETON, FEBRUARY, 1857.

Johnston, Ch. This bill is brought for the assertion of interests which the plaintiffs allege they have, in common with the defendants, under a deed of marriage settlement.

The deed bears date the 6th of April, 1805, and was executed in contemplation of a marriage, which was afterwards solemnized, between Jane Hoff, widow, of Colleton, and God-frey Adams, of Abbeville. By this instrument, Mrs. Hoff, who had, at the time, four children then in their minority, by a former husband, conveyed to Richard Singleton twelve slaves, by 'name, with a tract of land situate at the Round 0, in St. Bartholomew’s Parish, and an undivided one-fifth of her former husband’s estate, in trust (after the approaching *248marriage) for Her own separate use and behoof, during her life, “ and from and immediately after the death of the said Jane Hoff, then in trust for the use, benefit and behoof of Wm. Hoff, John S. Hoff, David S. Hoff, and Mary E. A. Hoff, present *children*of the said Jane Hoff, and also of the *issue*of the said Jane Hoff by her (intended) husband, the said Godfrey Adams, who shall be alive at the time of the death of the said Jane Hoff, and who shall live to *attain the several and respective ages of twenty-one*years, or days of marriage; to hold the said trust estate, upon the attaining the said ages or days of marriage, to such *children*and *issue,*if more than one, to them, their heirs, executors, administrators and assigns forever. But in case the said Jane Hoff shall happen to die without *leaving*either of the above named children, and *issue*by her said husband, Godfrey Adams, or such *children*and *issue*should all die in *minority*and *unmarried,*then upon the death of the said Jane,” then over to Adams, &c. There are other trusts in the deed, but they are immaterial to the present cause.

By the marriage with Adams, the grantor had several children, of whom some died during the life of the mother, and others survived her. Of those who died during her life, some left issue. All her issue by Adams are parties defendants in this suit.

The four children of the former marriage all died in the lifetime of their mother, the life-tenant. ¥m. Hoff, the first of them, died in his minority, unmarried, and without issue; John S. Hoff came of age, but died unmarried and without issue; David S. Hoff came of age, and married, and left issue; and Mary E. A. Hoff came of age, was married, and left issue. All these parties are represented in the cause.

Godfrey Adams and Mr. Singleton, the trustee, are long since dead; the life-tenant, Jane Adams, formerly Hoffj died in 1852 or 1853, leaving a will, and her executor is a party.

The plaintiffs of the Hoff family claim an account and par*249tition of tbe trust estate, which is resisted. The defendants, if a partition is ordered, sever among themselves, as to the portions to which they are entitled.

Testimony has been taken to identify the property in the hands of the executor of Jane Adams, with that described in the trust deed. There is a good deal of obscurity in the evidence ; but I do not deem it necessary to scrutinize it particularly, because, in my opinion, the case may be disposed of upon the construction of the deed.

If the bill can be sustained, and only in that case, the points' between the defendants will arise. • Though it is competent to decree between defendants, it must be upon a case arising between plaintiffs and defendants.

Had the contestation between the defendants properly arisen for adjudication, however, I should have felt little difficulty in deciding it. The remainder, so far as the deed creates it, in favor of the second family, differs from that created in favor of the first family, the-Hoffs. The remainder, in the former case, is given to the issue by Adams (1 Rich. p. 112, and 1 Rop. Leg. 127); and according to the case of *Barlcsdale*vs. *Edwards*(8 Rich. Eq. 125), all lineal descendants would come *mpter capita.*The interests of the Hoffs, on the other hand, are given them by name, and under the designation of children ; and none but those thus named and designated can take, unless the interests are vested by the instrument, so as to be transmissible.

If their interests were vested (while those of the issue are confessedly contingent and shifting), then the case would fall within the principle of *Cole*vs. *Creyón*(1 Hill Ch. 311) whereas, if contingent, yet when they came into effect (if that had happened), the case would come under the class of *Per-driau*vs. *Wells*(5 Rich. Eq. 30).

The point upon which I shall decide the case is, that the-interests of all the remaindermen *(children*of the first family- and *issue*of the second), are made expressly by the deed, con*250•.tingent and dependent 'upon their surviving the life-tenant, as well as their coming of age or marrying. The first words employed might admit of some hesitation, whether these con. ditions were intended to be applied to the *children,*as well as the issue, or to be confined to the *issue*; but the subsequent words clear this matter from all doubt.

• The interests of the Hoffs lapsed by their death before their mother; and being contingent, were not transmissible; and the bill is filed to assert rights which never accrued.

It is ordered that the bill be dismissed.

The complainants appealed from the decree, and prayed that the same may be reversed, for the reasons:

1. Because his Honor erred in deciding, that the Hoff family, named in the deed, did not take vested interests, and the appellants submit, said interests being vested and transmissible, that in the events that have happened in the case, on the death of Jane, their grandmother, they were entitled to shares in the lands and slaves in the controversy.

2. Because his Honor’s construction of the deed of marriage settlement defeats the manifest meaning and intention of the grantor.

3. Because the decree is, in other respects, contrary to law.

The defendants, Anna “Willis, Jane Hoff, and Benjamin Adams, on behalf of themselves and their children, issue of Jane Adams, also appealed on the ground:

Because they were entitled to a writ for a division of the *251property, *per capita,*and it is respectfully submitted that bis Honor erred in refusing tbe same.

. *Henderson,*for plaintiffs.

*Perry, Cam,*for defendants.

Pee CueiaM.

*We*see no sufficient reason to differ from the decree of the Chancellor; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin, Daegan and Waedlaw, CC., concurring.

*Appeal dismissed.*