#### Thomas W. Glover and others *vs.*Frances Adams and others.

*Limitation of Estates.*

By marriage settlement, the. property of the wife was settled to the joint use of husband and wife during coverture, and if the husband survived, to his use for life, with remainder to “the legal heirs and representatives” of the wife. The husband survived, and upon his death, held, that the persons entitled to take were the heirs and distributees of the wife, including the husband, at her death.

BEFORE DUNKIN', OH., AT CHARLESTON, JUNE, 1859.

The bill was filed for the sale and distribution of certain property of Mrs. Lydia Adams, deceased, which, upon her marriage with Benjamin Adams, had been settled upon James W. Gray as trustee of the contracting parties. The clause of the marriage settlement under which the distribution is to be made, is as follows, to wit:

“In trust for the sole and separate use, benefit and behoof of the said Lydia Surr, until the solemnization of the said intended marriage, and from and after the solemnization thereof, in trust for the joint use, benefit and behoof of the said Benjamin Adams and Lydia Surr, during the time of their coverture, without the said premises, or any part of them, being in any way liable or subject to the debts or incumbrances of the said Benjamin Adams. And from and immediately after the death of the said Lydia Surr, should the said Benjamin Adams survive her, then in trust to and for the use, benefit and behoof of the said Benjamin during his natural life, and after his death, to result to such person, or persons, as the said Lydia Surr may, by her last will and *265testament, duly executed in writing, appoint (and the power to make such will is hereby given to the said Lydia Surr, notwithstanding her coverture); and in case of the failure of the said Lydia Surr to make such will, then, in trust for her legal heirs and representatives; and should the said Lydia Surr survive the said Benjamin Adams, then all of the said estates to remain in the said Lydia, free and unincumbered of all trusts.”

Benjamin Adams was the survivor of the parties, and-died, having enjoyed the life estate in the property as provided for in the deed. Lydia Adams left no will, and the parties to the suit claim the property as her heirs and legal representatives, under the last clause of the limitations.

Dunkin, Ch. Until the marriage of Mrs. Lydia Surr with Benjamin Adams, she was the absolute owner of the property. After that time, the legal estate was in the trustee; and Mrs. Adams had no interest, except as declared by the marriage settlement. It has been often remarked, that a more liberal construction is put upon such deeds than upon conveyances at common law. The intention of the parties is here more particularly looked to, and the words more made to bend to the intention. As was said by an eminent advocate in a similar case, “it is not what is the eifect of a limitation to a man’s heirs, but who is meant by the description contained in the ultimate limitation in this deed? They are words of description, and nothing else; and in order to see who it is that the party means to describe by that limitation, you must take into consideration his professed inten- ■ tion, and what is the whole effect and tendency of the deed in all the preceding limitations.” In giving construction to this instrument, it may be premised that the property was that of the wife; and, moreover, that the parties did not probably contemplate the existence of issue, as no provision is made with reference to s'uch event. The primary provision is, for the joint use during coverture, but so as not to *266be subject to the husband’s debts. ' The provision next made is for the contingency which actually occurred. “Should the said Benjamin survive her, (the said Lydia,) then in trust for the use, benefit and behoof of the said Benjamin, during his natural life; and, after his death,” (on failure of appointment on her part,) “then in trust for her legal heirs and representatives.” In order to enable the trustee to discharge his duty finally, and surrender the property to those entitled, his only enquiry is: Who, after the death of Benjamin Adams, fulfilled the description of “the legal heirs and representatives” of Lydia Adams, deceased? The euquiry is not who may have been her heirs at the time of her death, but what persons answered that description at the time when the trustee was to perform his final act. It is not unlike the case of a legacy to a class of persons at a future period, in which the constant rule has been, that all persons answering the description at the period of distribution, and none other, are entitled to take. See *Matthews vs. Paul,*3 Swan., 328. In this case, the manifest intention of the parties was to prevent the marital right from attaching, and, therefore, the legal estate was vested in a third person. Regard was had to the interest of the husband by securing to him a joint use during the coverture, and the exclusive use during his life, in the event of his survivorship. When his power of enjoyment should cease, provision is made for the final disposition of the property to such persons as could then substantiate their title under the description of the deed. When it is declared that the trustee shall hold for the use of the husband during his natural life, and after his death, then in trust “for her legal heirs and representatives,” these latter are in contradistinction to, and exclusive of him, for whom the previous.use was declared.

It is ordered and decreed, that the trustee account for his transactions as such, and that the property be divided among the parties entitled thereto, according to the principles of this decree. Costs to be paid out of the fund, except those of the *267administratrix of Benjamin Adams, deceased, which are to be paid out of the assets of said intestate.

The defendant, Frances Adams, appealed on the ground:

That the “ heirs and legal representatives” of Mrs. Lydia Adams are those who were such at the time .of her death; and it is respectfully submitted, that his Honor erred in ruling, that her heirs and representatives were not fixed until the death of Benjamin Adams, who survived her.

*Pressley,*for appellant.

*Simonton,*contra.

The opinion of the Court was delivered by

Johnston, J.

Had the limitation, after Mrs. Adams’life, been to a stranger instead of her husband, and, upon his death, then over to her *heirs,*it would, since *Tompkins vs. Rochelle,*1 Strob. Eq., 114, *Seabrook vs. Seabrook,*and many other cases, scarcely have been doubted in this State, that the husband must come in among those entitled to succeed under this designation.

Nor is it doubtful, under *Hicks vs. Pegues, Buist vs. Dawes,*4 Rich. Eq., 413, and other cases, to the same effect, that a class of persons, designated to take as heirs of a given individual, became fixed and ascertained, and their interests vested at the death of that individual; so that if they should afterwards die before the time assigned for their enjoyment of their interests, these interests would be transmitted from themselves, as a new stock.

The conclusion to be naturally drawn from these principles, would seem to be, that, under this deed, the husband, in addition to the provision made for him, as survivor of his wife, took an interest along with her distributees, upon her death; an interest, which, when it became vested in him, became of value, and might have been aliened, either along with his life estate or separately.

*268These interests were cumulative.

But though these positions seem clear, it has been conceived that to allow the husband to take as *heir*would defeat the intention of the parties to the deed. The intention of parties is not so much to be conjectured, as derived, by construction, from their words. In this case, it has been argued that it was not intended to provide for the husband under the description of heir, because he was provided for under another designation. But it will hardly do to blot out one express provision, because there is another.express provision. It seems to be going too far to make the husband’s exclusion or inclusion depend upon the- fact that provision has been made for him, unless we can be certified that th,at provision was intended to exclude all further provision ; and h.ow can we know that, in the face of express words, that do include him ?• How can we know, in the absence of language to inform us, that the words, *heirs of the*wife, were not intended to have their natural meaning, and designate heirs living *at her death,*but those living at her husband’s death? Do they mean the one or the other, according as the husband is or is not provided for ?

I should draw a different inference as to the intention ; an inference that heirs at her death were contemplated, from the fact that the deed, on its face, provides an alternative which must *then*take effect, either in those who were *then*to take from the wife by *testament*or by intestacy.

It is ordered, that the decree be reformed according to these views; and that the distribution be made accordingly. The provision, in the decree, as to costs, to remain unaffected by this judgment.

Wardlaw, J., concurred.

O’Neall, C. J. I concur in Chancellor Dunkin’s decree.

*Decree rformed.*