#### *Benjamin Chaplin and others vs. David Turner.*

Can a party having a *contingent*remainder in slaves, file a bill to compel the tenant for life to give security for their forthcoming at the termination o f the life estate *% Qucere.*

Testator, by one clause of his will, direetedthat “ my estate, real and personal, should be kept together, and not divided, until my grand-son, Thomas, at. tain the age of twenty-one,” &c. By another clause he bequeathed to his three grand-sons, William, Anthony and Thomas, three-fifths of his personal estate, *“*to be equally divided between them, share and share alike, and to the heirs of their body, lawfully begotten, from thenceforth and forever; and should William die leaving no issue, then in that case to be equally divided between Anthony and Thomas; and should Anthony die leaving no issue, then in that case to be divided between William and Thomas; and should Thomas die leaving no issue, then in that case to be divided between William and Anthony,” When Thomas arrived at twenty-one years of age the property was divided. Held, that the contingency contemplated by the testator was the death of either of the grand-sons before the period of division, and that, after that period, each, who survived it, took his share absolutely.

Testator, by the second clause of his will, devised real property to A. *“*and to the heirs of his body, lawfully begotten, from thenceforth and forever; and should he die leaving no issue, then in that case” over. By the third clause he bequeathed to A. personal property, *‘‘*in the same manner and form, and with the same restrictions, as is mentioned respecting my real estate.” *Held*that, in inquiring whether the limitation over as to the personalty was good; the true way to construe the will was, to apply the words employed in relation to the realty, just as if they had been repeated in the clause relating to the personalty, and not to construe it as if the testator meant that the same *estate*should be taken in the personalty that he had given in the *realty.*

*Before*Harper, Ch. *at Beaufort,*

February, 1844.

*The Chancellor.*Anthony Albergottie, by his will, executed in 1815, devised as follows: !í I give, devise, and bequeath, to my three grandsons, William J. Albergottie, Anthony Albergottie, and Thomas Albergottie, my two plantations, Mount Pleasant and Mulberry Hill, share and share alike, and to the heirs of their body, lawfully begotten, from thenceforth and forever ; and should my grandson, William J. Albergottie, die, leaving no issue, then and in that case, to be be divided between Anthony Albergottie and Thomas Albergottie.” The testator makes similar provis*137ions in the case of the death of the other two grandsons, and then the will goes on — “ I give and bequeath three-fifths of all my personal property to my grandsons, William J. Albergottie, Anthony Albergottie, and Thomas Albergottie, to be equally divided between them, share and share alike, *in the same manner and*form, *and with the same*restrictions, *as is mentioned respecting my real estate*

The bill is filed by the two children of William J. Albergottie, the devisee, charging, that under the terms of their great-grandfather’s will, their father takes only a life estate in the personal estate bequeathed to him, and that at the termination of that estate they will be entitled to take, as purchasers, in remainder. They charge, that several slaves, which were allotted to their father, as part of the personal estate, have been purchased by the defendant, and are in his possession ; that some of them have been removed from the State, or otherwise disposed of, and they pray that defendant may be compelled to give security for the forthcoming of the slaves, at the termination of the life estate.

Various matters of defence are stated in the answer, which, from the view I shall take, I do not think it necessary to inquire into. Indeed, it was agreed at the hearing, that the effect of the limitations of the will only should be determined, and that the matters of fact should, if necessary, be made the subject of reference. It was agreed, however, that defendant had purchased some of the slaves which were allotted to William J. Albergottie, on the division of the personal estate.

The question is one of some novelty, but I think that under the terms of the will, the grandsons took an absolute estate in the personalty. If the testator had repeated the words which he has used in disposing of his real estate, and applied them to the personal estate, I should have thought, under the authority of the cases of *Talbird*vs. Archer, Bail. Eq. 535, and *Henry*vs. Means, 2 Hill, 328, cited in argument, that, the limitation over being good from the effect of the word, *“*leaving,” the “heirs of the body” of the legatees would take as purchasers. But the testator does not say that the personal estate shall be disposed of by the same words as the real estate; but that the legatees shall take *in'the same manner and*form, *and with the same*restrictions, as are applied to the real estate.

This does not mean a verbal, but an actual identity of disposition — 'the same limitations shall apply to the personal, as to the real estate — not in words and in form, but in substance and ef-*138feet — they shall take the same estate in the personalty that he has given them in the realty.

Then what is the disposition of the real estate *1*There is no doubt that the devise to grandsons, *and the heirs of their bodies,*gives them a fee conditional, as it would give an estate tail in England. In the case of *Mazyck vs. Vanderhorst,*Bail. Eq. 48, which has been followed in other cases, when the terms, “ *leaving*issue,” are applied to real estate, this imports an indefinite failure of issue. The grandsons, then, take a fee conditional in the real estate, with a limitation over, on the determination of that estate. The testator gives them the same estate in the personalty ; but this the law will not allow them to take, as creating a perpetuity, and the legatee must take an absolute estate. If the limitation over of the "real estate, had been on the event of *dying without*issue, generally, there would have been no question ; but according to the decisions I have referred to, the present limitation is the same substantially and in effect.

It is ordered and decreed, that the bill be dismissed.

The complainants appealed, on the ground :

Because his Honor decreed that the complainants took nothing by way of executory devise in the personalty bequeathed by the testator, Anthony Albergottie, to their father, William J. AI-bergottie. Whereas, it is respectfully submitted, that they take the same as purchasers on the death of the said William J. Al-bergottie.

E. Rhett, for the appellants.

-contra.

*Curia, per*Johnston, Ch.

This court is unanimously of opinion that this case cannot be put upon the nice distinction taken by the Chancellor. If the words employed, instead of controlling the division to be made among the legatees, be regarded as modifying the interests to be taken by them, (which Was the Chancellor’s view) our opinion is, that the construction in relation to the personalty is not to be drawn from the effect which the words employed in relation to the realty has upon *that,*but from the application of the same words to the personalty, just as if they had been repeated in the clause relating to it. Thé testator evidently refers to the disposition he had made of the realty, not with a view to alter the terms he had used, but to avoid the repetition of them. We would therefore read the will as if the first clause, recited in the decree, were amended by *139inserting *“ three-fifths of all my personal*property,” after the *“two*plantations, *Mount Pleasant and Mulberry Hill.”*The effect of this construction would probably be, to let in, as purchasers, the issue of the grandson, William J. Albergottie, who may happen to survive him, upon the authority of the cases cited in the decree. But their interests being contingent and not vested, it might be doubted whether they could sustain their bill for the security they ask. According to the construction of which we are now speaking, the property is to go over, upon the death of William J. Albergottie, whenever that may happen, to his issue then alive, or, if there be jio such issue, then to Anthony and Thomas. The contingency of his leaving issue is to determine which of these alternative limitations is to take effect. The same contingency is to determine them; and they are therefore equally contingent, and' Anthony and Thomas would be just as much entitled to a bill for security as the plaintiffs. The doubt is whether either is entitled to it while William J. Albergottie is alive; and as yet, the right of neither has attached. There would, perhaps, have been less doubt, if both classes had united in the bill.

But the ground on which we shall determine the cause is, that the context of the will shews, that the contingency contemplated by the testator, was the death of William J. Albergottie before the period of division, and not afterwards; so that the other words employed by him were not intended to limit the estate after the division, but to direct among whom the division was to be made, according to the state of affairs which might then exist.

After directing the payment of his debts by the first clause, the testator by the second clause of his will required, “ that my estate, real and personal, should be kept together and not divided until my grandson, Thomas Albergottie, attain the age of twenty-one (except the six negroes left to my daughter, Mary Carney,) and the income thereof, (after paying an annuity to my daughter-in-law, Rebecca Albergottie) should be equally divided between my grand-children, William J. Albergottie, Anthony Albergottie, Mary Ann Slawson and Thomas Albergottie, or to the heirs of their body.”

Then follow the third and fourth clauses, imperfectly set out in the decree.

*“*Thirdly, I give, devise and bequeath to my three grandsons, William J. Albergottie, Anthony Albergottie and Thomas *140Albergottie, my two plantations, Mount Pleasant* and Mulberry Hill, share and share alike, and to the heirs of their body lawfully begotten, from thenceforth and forever; and should my grandson, William J. Albergottie, die, leaving no issue, then *in that case to be divided between Anthony Albergottie and Thomas Albergottie ;*and should my grand-son, Anthony Albergottie, die, leaving no issue, then *in that case to be divided between William J. Albergottie and Thomas Albergottie;*and should my grandson, Thomas Albergottie, die, leaving no issue, then in *that*case to be *divided between William J. Albergottie and Anthony Albergottie.”*

“ Fourthly, I give and bequeath three-fifths of all my personal estate,” (fee. as recited in the decree.

It seems to me very plain that the testator’s intention was that, when the period of division arrived, the property should be divided between the three grand-sons, if all were then alive *;*that the issue of any of them who might have previously died should stand in his place; but if either of them were dead leaving no issue, then the property was “ to be divided” between the other two.

The division relates to the whole property. It is not a limitation over of the *shaie*of William J. (fee. — the *share to*be divided between the survivors — but a direction to divide the whole property according to the circumstances described' in the will. After the division the property is to go absolutely to those to whom it is to be allotted. The case shews that the youngest grandson, Thomas, attained majority — the property was divided, and William J., being alive, received his proportion: and we think he took it absolutely.

It has been argued against this view of the case, that this interpretation does not satisfy the terms of the fourth clause, which directs that the personalty shall be divided not only *“*in the manner and form,” but *“*with the same restrictions” as are *“*mentioned respecting my real estate.” From the word *“*restrictions” it is inferred that some modification must have been intended of the interests or estates which were to pass under the division. But the *restrictions were*upon the mode of division. This clause (the 4th) directs the three fifths of the personalty to be divided among the three grandsons ; but as the previous clause had, in certain contingencies, directed that the realty, which was also given to the three, should be divided between two ; it was thought necessary to declare, that the division of the personalty also, should, under the *141same circumstances, be *restricted*to the two. The fifth clause has also been commented on as opposed to the construction we have adopted. In this clause the testator says, “ I leave to my daughter, Mary Carney (in lieu of her share of the income of my plantations) the use of the following negroes, viz .- Titus,” (Sic., “ and at the division of my personal property as aforesaid, the use of one fifth of all my personal property during her natural life ; and after her death to return back and be divided between my four grandchildren, in the same manner and form, and with the same restrictions as the personal property before recited.”

I perceive nothing in this justly calculated to affect our construction. The period of ultimate division as to this fifth is different from that appointed as to the three fifths given by the third and fourth clauses. It may admit of a doubt, which it would be improper to determine now, whether the ultimate division of this fifth is to be made according to the condition of the legatees at the death of Mary Carney, or at the periodo^iis^^tsfe-d^vision. But in either case the restriction is upon /pi^$^^d£^yfeion. We concur, therefore, with the chancellor Jjn the result ofrii| decree, and is ordered that the appeal be disMg^f SCHOOL 5

Johnson and Dunkin, CC. concurredij