#### *W. H. Rivers, adm'r. W. M. Edings,*vs. *John A. Fripp et al.*

Devise of property, real and personal, to testator’s wife, for life, and after lier death to his son, for life; “and from and immediately after the death of my wife and son, unto the issue of my said son living at the time of his death, who shall live to attain the full age of twenty-one years, or who, dying before that time, shall leave issue to live until the time at which the parent or parents, if alive, would have reached the fuE age of twenty-one yearsand, in default of such issue, then, *over,*— held, to give a vested, but defeasible, interest, with immediate right to the rents and profits, to a child of the son who survived both the wife and son, although such child died under twenty-one years of age, leaving no issue which Eved until the time at which the parent, if aEve, would have been twenty-one years of age.

*Before*DuNKiN, Ch., *at Charleston, June,*1851.

DuNKIN, Ch. The questions presented by the pleadings arise on the will of William Edings, deceased, and the codicil thereto. The former bears date 23d May, 1834, and the latter on the 27th March, 1836, and both were admitted to probate on the 11th April following. An extract of so much as is necessary is annexed to this decree.

It appears that, at the time of the execution of these instruments, and at the decease of the testator, he had one son, John Evans Edings, who was himself married and had two sons, to wit: William M. Edings and John Evans Edings, jr., one of the defendants. The testator left also, besides his widow, Sarah Ed-ings, two daughters, Sarah Chisolm and Mary Eripp, and the children of a deceased daughter, Eliza Whaley.

By the principal clause of the will, which it is important to consider, the plantation on Edisto Island therein described, and the slaves attached thereto, are devised and bequeathed to his wife during her natural life, and, subject to her life estate, the same property is devised and bequeathed to his son, John Evans Edings, during his natural *life;*but it is specially provided that, in the event of the bankruptcy of his son, or of .any act on his part that would deprive him of the use, annual profits or income *277arising from said property, then, and in. any such case, the devise and bequest to his son are absolutely revoked and annulled, and the testator devises and bequeaths the said property, subject to his wife’s life estate, &c., *“*unto the wife ana children of his said son, or the survivor or survivors of them, for and during the remainder of the life of his said son, to and for their, and each of their sole-and separate use, benefit, and behoof, and without being in any manner subject to the debts, contracts or control of his said son.” *“From and immediately*after the death of his wife and son,” his mansion house, &c., and the three tracts of land, his dwelling house on Eding’s Bay, &c., and all the slaves, &c., on his three tracts of land on Edisto Island, the testator gives, devises, and bequeaths “unto the lawfully begotten issue of his said son living at the time of his death, who shall live to attain the full age of twenty-one-years, or who, dying before that time, shall leave lawfully begotten issue to live until the time at which the parent or párente, if alive, would have reached the full age of twenty-one years : if more than one, then to them, their heirs and assigns, absolutely 'and forever: and if only one of them, then to that one, his or her heirs and assigns absolutely and forever, the issue of any deceased issue of my said son, and whether the *said issue*died *before*or *after my*said son, taking and receiving the same share and proportion as the parent or parents, if alive, would have taken and received. And should my said son die without leaving lawfully begotten issue living • at the time of his death, who shall live to attain the full -age of twenty-one years, or who, . *dying*before that time, shall leaveTawfully begotten issue to live until the time at which the parent or parents, if alive, would have attained twenty-one years of age, then I give, devise and bequeath all the said real and personal property mentioned and contained in this clause of my will, unto the right heirs then living of me, the said William Edings, to be equally divided among them, share and share alike, according to the laws of this State for the distribution of intestates’ estates.”

John Evans Edings died two years after the death of the tes*278tator, hjs father, leaving surviving him his two sons, William M. Edings and John Evans Edings. His mother, Sarah Edings, died in 1844. William M. Edings lived until 29th September, 1850, when he departed this life at the age of twenty years. He left surviving him a son, who died three months after his father, and before his father would have attained the full age of twenty-one years. John Evans Edings, the defendant, was eighteen years and six months old in May, 1851. The bill is filed by the personal representative of Wm. M. Edings, praying, among other things, an account of the rents and profits of the estate above devised and bequeathed, from the death of the life tenant in 1844 until the close of the year 1850, and that a moiety thereof may be paid to him. The success of the complainant depends upon the inquiry whether William M. Edings had a vested or contingent interest under the will of his grand-father.

The authorities concur that this inquiry must be determined by the sense in which the testator intended the devisees interest in the property to depend upon his attaining the specified age. Thus a devise to a person, if he shall live to attain a particular age, standing alone, would be contingent: yet if it be followed by a limitation over in case ho die under such age, the devise over is considered as explanatory of the sense in which the term is used, to wit: that, at that age, the estate should become absolute and indefeasible: the interest in question, therefore, is construed to vest *instanter.*1 Jarman on Wills, 738. The principle is sustained by many cases, and among others by *Doe*vs. *Nowell,*which was first determined in the King’s Bench, 1 M. & Selw. 326, and the judgment afterwards affirmed by the House of Lords, 5 Dow P. C. 202. The devise was to the testator’s nephew for life, and, on his decease, to and among his children lawfully begotten equally, at the age of twenty-one, and their heirs as tenants in common. But, if only one child should live to attain such age, to him or her and his or her heirs, at his or her age of twenty-one ; and in case the nephew should die without lawful issue, or such lawful issue should die before twenty-one, then to and *279amongst the testator’s nephews and nieces there named, or such of them as should be then living, and their heirs and assigns forever.' The father, during the infancy of two of the children, and before the birth of others, leviéd a fine and afterwards suffered a recovery, and conveyed the estate to a purchaser, and died leaving his children under age. It was held that the children, at their birth, took vested remainders, and they recovered, against ■the purchaser. The case was decided on the authority of *Bromr field*vs. Orowder, 1 New Rep. (B. and P.) 313. Testator devised a life estate to his widow, and, on her death, to Joshua Rose for life, and at the decease of the longest liver of them, he devised all his real estate to the plaintiff, if he should live to attain twenty-one years of age: but in case he die before he attains that age, and his brother Charles survive him, “ in that case I give my real estate to Charles, if he lives to attain the age of twenty-one years, but not *otherwise;*but in case both the above mentioned boys die before either of them attain the age of twenty-one years, then I give my real estate to John Tale, my god-son, and his heirs for ever.” After the decease of the widow and Joshua, and before the plaintiff attained the age of twenty-one years, he filed a bill to have his rights declared. On the part of the heir at law, it was. insisted, that the remainder was contingent, and the tenant for life having died before the plaintiff attained twenty-one years of ago, such remainder consequently could not take effect, and the estate descended to the heir at law. On a case made for the opinion of the Judges, it was certified “ that the plaintiff took a vested estate in feo simple in the freehold and copyhold estates of the testator, determinable upon the contingency of his dying under the age of twenty-one years.”' The Chief Justice says: “This is an immediate devise to the plaintiff,- to take place on the death of the two preceding devisees. If so, we must either break in upon the terms of the will or give them effect. In the latter case, there is an end of all argument about the word *if.” “*There is nothing in the will to prove that the testator meant the plaintiff not to take a vested estate unless he survived twenty-one. Indeed, *280the true sense of the thing is, that the testator meant him to take it as an immediate devise in himself, hut that it was to go over in the event of his dying under twenty-one.” “Words must be construed according to the intention of the parties.” “ The apparent intention, as collected from the whole will, must always control particular expressions.” “ The fairest construction is, that the plaintiff took an immediate vested estate on the death of the preceding devisees, with a condition subsequent.” *Poe*vs. *Moore,*14 East. 601, was a *direct*devise to A. *when*he attains the age of twenty-one years: but in case he should die before he attains the age of twenty-one years, then over.” It was held byLordEllen-borough, on the authority of the jneceding cases, as well as *JEd-wards*vs. *Hammond,*3 Lev. 132, that this did not make the de-visee’s attaining twenty-one a condition precedent to the vesting of the interest in him: but that the dying under twenty-ene is a condition subsequent, on which the estate is ,to be divested. The rule, and the reason of it, are very clearly stated by Sir E. Sugden, in the argument of *Phipps*vs. *Williams, 5*Sim. 44. “ Whether the estate be in possession or remainder, if it be devised to a man on the happening of an event, as, for instance, his attaining twenty-one years, and if there be a devise over in case the party does not arrive at that age, the devisee will take a vested estate before he attains the specified age, and the estate will go over if he does not attain that age: because it is considered that the words are introduced for the sole purpose of limiting the period when he is to take an indefeasible estate, and not for the purpose of showing an intention of keeping him out of the enjoyment of the property till that particular event happens.”

This class of cases was at one time the subject of much observation, and particularly the case of *Poe*vs. *Moore*was supposed to carry the doctrine too far. Eut the whole subject was recently considered, and the decisions reviewed in *Phipps*vs. *Aelcers,*9 Clarke and Ein. 583.- The cause was twice argued in the House of Lords, and once in the presence of the twelve Judges. The question submitted to the Judges was, “What estate George Hoi-*281land Ackers took in tbe Wheelock estate ? Testator gave these estates to Gr. II. A. when and so soon as he should attain the age of twenty-one years: but in case he should die under the age of twenty-one years without leaving issue, in that case the estates should form part of the residuary estate of the testator, which he gave over to another person.” Chief Justice Tindal delivered the unanimous opinion of the Judges, that Gr. II. A., on the decease of the testator, took an estate in fee simple in the lands and hereditaments of W., subject to be divested in the event of his dying under twenty-one and without issue. He says that, “ Whatever may be the true meaning of !a devise to A. and his heirs, when or if he shall attain twenty-one, without any concomitant provisions, yet there is ample authority for spying that such words may, from the context, be taken not to indicate the time when the estate is to vest, but to point out an event, on the happening of which, an estate already vested is to be diyested, in favor of some other person.” He instances two classes of cases. The second class of cases, continues he, “goes on the principle that .the subsequent gift over in the event of the devisee dying under twenty-one, sufficiently shews the meaning of the testator to have been that, *the first devisee should talce whatever interest the party claiming under the devise over is not entitled to,*which, of course, gives him the immediate interest, subject only to the chance of its being divested on a future contingency. Whether the doctrine on which this second class of cases has rested was originally altogether satisfactory, is a point which we need not discuss. It is sufficient to say, that it clearly has been established and recognized as a settled rule of construction, not only in the Courts below, but also in the House of Lords.” In *Phipps*vs. *AeJcers,*the devise was to trustees, in trust to convey to Gr. II. A., when and so soon as he should attain twenty-one years, &e., Lord Lyndhurst said, that this made no difference in the disposition of the property. Referring to the course which the case had taken, he says, “ the object which the House of Lords had in view was, that the learned Judges should review the cases of *Poe*vs. *Moore*and *Bromfield**282vs. *Qrowder,*and other cases of that class. The Judges, after consideration, unanimously pronounced the opinion, that G. II. A. took a vested estate in fee, liable to be divested in the event of Ms dying under twenty-one, without leaving lawful issue. I am perfectly satisfied with that decision of the Judges.” Lord Campbell said, he thought “ it could not admit of any reasonable doubt that, if it had been a legal limitation, it would have vested in George Holland Ackers immediately upon the death of the testator, liable to be divested on his dying before twenty-one without issue.” Lord Brougham thought that *aDoe*vs. *Moore,*was an extreme application of the do'ctrine, but that the principle sanctioned by the cases had been for so many years adopted by acquiescence, that no course ought to be taken which could break in upon it.” “It is,” says he, “ of the most essential consequence that the doctrines which have been long received for law, and acted upon by the Courts in their decisions, and by parties and their professional advisers in the disposition of property, should not be shaken.” The bill had been filed by the heiress at law for an account of the rents and profits. George Holland Ackers was only twelve years of age at the testator’s death. His demurrer was sustained by the Yice Chancellor, *(Phipps*vs. *Williams, 5*Sim. 44,) and, on appeal, the judgment of the Yice Chancellor was affirmed by the House of Lords.

Regarding the doctrine then as well established, it may be proper, before considering .the application of it to this will, to advert to the distinction between a devise and a bequest of personalty. It is true the rules in relation to the latter are chiefly derived from the civil law. But, in both, the ascertained intention of the testator will control the construction. In this will, the real and personal estate are included in the same clause, and made subject to the same provisions. On reference to the authorities, it will be perceived, that the principle stated applies as well to personal as to real estate. Thus, Mr. Jarman (vol. 1, p. 771) says, when a bequest is to *the*children, *who*shall attain, or to *such*children *as*shall attain the age of twenty-one years, there being in such case *283no gift, except to tbe persons wbo 'answer tbe qualification wbicb tbe testator bas annexed to tbe enjoyment of bis bounty, tbe vesting of tbe legacy is postponed. But even these expressions may be explained and neutralized by tbe context, *u*as if tbe testator, after giving to tbe children wbo attain a certain age, goes on to dispose of the property in case there is no child wbo does attain tbe prescribed age, be affords a plausible ground for tbe argument on which *Edwards*vs. Eammond, and that class of cases, is founded, to wit: that the subsequent words explain tbe sense in which be intended tbe prior words to be understood, namely, that tbe interest of tbe legatees was merely liable to be divested on .the event described; in other words, was to become absolute at (not to be postponed until) tbe prescribed age.”

William Edings, tbe testator, bad but one son. To that son he devises and .bequeaths (subject to a life interest in bis widow) the homestead, and tbe valuable property, real and personal, attached thereto, during bis life, subject to certain restrictions. “ From and immediately after tbe death of bis wife and son,” be devises and bequeaths the same ¡property (describing it) unto tbe lawfully begotten issue of bis said son, living at tbe time of bis death, wbo should live to attain twenty-one years of age, or wbo, dying before that time, should leave issue to live until tbe parent would have attained twenty-one years of age. But should bis son die without leaving issue living at tbe time of bis death, who shall live to attain twenty-one years of age, &c., then tbe testator devises and bequeaths “ tbe said real and personal property mentioned and contained in that clause of bis will,” unto tbe right heirs of him (tbe testator) then living, to be equally divided, &c. Tbe context explains tbe meaning of tbe testator. Tbe gift -is to tbe issue of bis son, to whom be bad previously given a life estate. Tbe usu-fruct and enjoyment of tbe estate was to continue in them as it bad been in their father, but tbe estate was not to become absolute and indefeasible until attaining tbe full age of twenty-one years. Tbe language of tbe annotator on Mr. Eearne, seems very applicable. Commenting on *Edwards*vs. Eammond, be says: *284“ The event in that case, namely, the attainment of twenty-one, is one which is often considered as a *quasi*certain' event, so that it is not required that the vesting of an estate should be suspended till the happening of such an event: it is sufficient if the estate be divested in case it should not happen, especially as that event is not of such a character as to constitute the indispensable pre-requisite to the attaching of any sort of interest in the party. On the contrary, it is rather to be supposed that the testator, considering it most probable that the party would attain twenty-one, should be maintained in a suitable manner out of the rents and profits, as he would be if he should take a vested interest, instead of allowing those rents and profits to go to his heir at law, whom he has shown no intention to benefit.” 2 Eearne, sec. 351, a. And so Mr. Jarman on this point says that, although it would not perhaps be warrantable to lay down any general position to that effect, yet several of the cases point to the conclusion that, in bequests of this character, the'construction should be, that “the *absolute*ownership only is suspended until the prescribed age: and that, in the meantime, the legatees should take vested interests, with a liability to be divested on the happening of the prescribed event.”

These remarks derive force from the consideration, that the testator seems to have placed himself in the relation of a parent to his son’s offspring, or, at least, to have intended so to provide for them. He contemplated his son’s improvidence, or, perhaps, his insolvency. In that event, the life estate given to him is revoked, and, for the remainder of his life, the estate is given “to the wife and children of his said son, or the survivor of them, without being in .any manner subject to the debts, contracts or control of his said son.” From and immediately after the termination of the life interest, the estate is devised to the issue, as before recited. It is true that the codicil of 1836 gives to his two grand-sons the crop of the preceding year, but payment is expressly postponed until twenty-one years of age, with directions to invest for them use. Assuming that their father might live *285insolvent, the testator had carefully and liberally provided for his grand-children during their father’s life time: can it be presumed that he intended this enjoyment to be interrupted and suspended from the death of the father until his issue had attained the prescribed age ?

It has been often said that where the will is capable of that construction, an interest shall, if possible,'be considered as vested rather than contingent: and for obvious reasons. It is not less true, that the leaning of the Courts is to sustain the will of a testator, rather than to give such construction as would defeat it. It is not too much to assume that the testator, in this case, intended to make a full and final disposition of his whole estate. He not only executed a will which was to be the law of his property, but he established a tribunal for declaring this law. The instrument was made upon advisement, with manifest reference to the rules of law, and an intention to adhere to them. The most prominent object in his will was the disposition of the Edisto Island estate, on which he himself resided. After securing this to his widow for life, his manifest purpose was to secure it to his only son‘and his immediate family, so long as he was permitted to secure it by the rules of law. Construing the devise as a vested interest, subject to be defeated on the happening of the prescribed event, the object of the testator is completely attained. But if it be regarded as a contingent remainder, not to take effect until the issue attained the prescribed age, not only is his intention defeated, but the testator contemplated the state of things, and so framed his will that his purpose would be certainly and obviously frustrated. “ Every remainder must vest, either during the particular estate, or else at the very instant of its determination.” Erom this rule it follows that whore the event, “ on which a contingent remainder is limited to take effect, does not happen by the time at which the preceding estate determined, it never can arise or take effect at all.” Eearne, 808. The testator here particularly contemplates the probable determination of the particular estate, and, according to the hypothesis, postpones the vesting *286(it may be) for twenty years thereafter. The devise over to the testator’s right heirs, is only on the happening of the contingency. The result would be, that the fee descended to his heirs at law as in case of intestacy, or that it passed under the residuary clause of his will; in which latter case the offspring of his son, although they might afterwards attain the age of twenty-one years, would find themselves effectually excluded from any participation in the estate, in consequence of the very measures adopted to secure their absolute right in it.

The subsequent clauses of the will, and particularly the devise to the children of his deceased daughter, Eliza Whaley, confirm the conviction that the intention of the testator was that the issue should take a vested, though defeasible interest., The Court is of opinion that William M. Edings took a vested interest under the will of his grand-fatlier, which was not divested or defeated until the death of his child, prior to the period at which his father would have attained the age of twenty-one years, and that his personal representative is entitled to an account of a moiety of the interim rents and profits, from the decease of Sarah Edings, the life tenant. •'

As to the proceeds of the crop of 1835, the language of the codicil seems sufficiently explicit. The gift is direct to the two grand-sons, to be equally divided between them, each receiving his respective share as he comes to the lawful age of twenty-one years, and his executors are authorized to convert the same into any valuable property for their use. This vests an immediate in-’^érest in each of the legatees, transmissible to Ms personal representative. The event never having occurred on which the right of survivorship would attach, the complainant is entitled to an account and payment of the intestate’s interest in this fund.

The complainant is also entitled to an inquiry and account as to the estate of Mrs. Sarah Edings, deceased, the grand-mother of the intestate, William M. Edings, deceased.

It is ordered and decreed, that it be referred to one of the masters to state an account between the parties upon the princi-*287pies herein declared, and that he have leave to report any special matter, parties being at liberty to apply for such further orders, at the foot of this decree, as may be necessary to carry the same into effect.

EXTRACT FROM WILL.

“ Item. I give and bequeath unto my beloved wife, Sarah Edings, for and during her natural life, the use and occupation of my principal mansion-house, yard and garden, on Edisto Island, of my dwelling-house on Eding’s Bay, and of all my three tracts of land on Edisto Island, containing in the whole about twelve hundred acres. And I further give and bequeath unto my said wife, also for and during her natural life, the use, occupation, interest and income of all the slaves, and of the stock and plantation implements and utensils on my said three tracts of land on Edisto Island, to be delivered to her from the time of my death. And I give and bequeath absolutely to my said wife, my wench Sylvia, and carriage and horses, my boats, and household furniture. And I will, order and direct that the provision hereby made by me for my dear wife shall be in lieu and bar of dower or thirds, and of all other claims which she may or can in any manner have against my estate, real or personal.

“ Item. I give, devise and bequeath unto my dear son, John Evans Edings, for and during his natural life, and subject to the conditions, limitations and provisions herein-after expressed and declared, all my said three tracts of land on Edisto Island, containing in the whole, as aforesaid, twelve hundred acres, together with my Sea Bays on the said Island, subject to the life estate of my dear wife in my principal mansion-house, yard and garden, in my dwelling-house on Eding’s Bay, and in my said three tracts of land, and reserving to my sister, Mary Chisolm, and to each of my daughters, the right of having each a lot of land for a resi-sidence on any of my Sea Bays, at their election, for and during their respective natural lives, and no longer; and which said right I do hereby give and bequeath to them respectively. And also I further give and bequeath to my said son, for and during his na*288tural life, and subject to the said conditions, limitations and pro-visoes herein-after expressed and declared, the use, occupation, interest and income of all the slaves, and of' the stock, plantation implements and utensils on-my said three tracts of land, subject to the life estate therein of his mother, my dear wife as aforesaid. And I do hereby will, order and direct, that if at any time or times hereafter, during the life of my said son, the operation of any bankrupt or insolvent law, or any act, matter or thing in law or in equity, without or with the will or consent of my said son, would deprive him of the use, annual rents, issues, services, profits and income arising from the devise and bequest herein and hereby made to him, as the same shall annually and from time to time accrue after the death of his said mother; or if he, my said son, shall sign or execute any instrument, or enter into any contract or agreement, by which he shall contract or agree to sell, assign or otherwise part with the said use, annual rents, issues, services, profits and income, or any part thereof, as a security for any sum or sums of money due and owing by him, or to be lent and advanced by him, to any person or persons whomsoever, or in any manner charge or dispose of the said use, annual rents, issues, services, profits and income, or any part thereof, by way of anticipation, or whereby or in which he should authorize and empower, or intend to authorize and empower, any person or persons whomsoever to receive the same, or any part thereof, otherwise than for his, my said son’s, own and direct and immediate use, then, and in any or either of thesé cases, I from thenceforth revoke and annul the said devise of my said three tracts of land and my Sea Bays on Edisto Island, to my said son for life, subject to the life estate of my dear wife therein, and in my principal mansion-house, yard, garden, and in my dwelling-house on Edisto Bay, and the reservations to my sister and daughters respectively, as aforesaid; and I thenceforth also revoke and annul the said bequest to my said son for his life of the said slaves, stock and plantation implements and utensils, on my said three tracts of land on Edisto Island, subject to the life estate therein of his *289mother, as aforesaid; and I thenceforth give, devise and bequeath the said three tracts of land, and my principal mansion-house, yard, garden and dwelling-house on Eding’s Bay, and my Sea Bays.on'Edisto Island, as aforesaid, and the said slaves, stock and plantation impleriients and utensils, on my said three tracts of land on Edisto Island, as aforesaid, subject to the life estate therein of my wife, and to the restrictions as aforesaid unto the wife and" children of my said son, or the survivor or survivors of them, for and during the remainder of the life of my said son, to and for their and each of their sole and separate use, benefit and ■ behoof, and without being in any manner subject to the debts, contracts or control of my said son. And from and immediately after the death of my said wife and son, I give, devise and bequeath all my said three tracts of land, my said mansion-house, yard and garden, my dwelling house on Eding’s Bay, and my Sea Bays on Edisto Island, as aforesaid, subject to the reservations in favor of my sister and my two daughters, as aforesaid; and all my slaves, stock, and plantation implements and utensils, on my said three tracts of land on Edisto Island, as aforesaid, unto the lawfully begotten issue of my said son, living at the time of his death, who, to wit, the said issue, shall live to attain the full age of twenty-one years, or who, dying before that time, shall leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have reached the full age of twenty-one years; if more than on'e, then to them, their heirs and assigns, absolutely and forever; and if one, then to that one, his or her heirs and assigns, absolutely and forever, the issue of any deceased issue of my said son, and whether the said issue died before or after my said son, taking and receiving the same share and proportion as the parent or parents, if alive, would have taken and received. And should my said son die without leaving lawfully begotten issue, living at the time of his death, who, to wit, the said issue, shall live to attain the full age of twenty-one years, or who, dying before that time, shall leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would *290have attained twenty-one years of age, then I give, devise and bequeath all the said real and personal property mentioned and contained in this clause of my will, unto the right heirs then living of me, the said Wm. Edings, to be equally divided among them, share and share alike, according to the laws of this State for the distribution of intestate’s estates.

“ Item. I give, devise, and bequeath unto my two grand-sons, William James Whaley and Benjamin Seabrook Whaley, 'the children of my dear deceased daughter, Eliza Whaley, for and during their respective natural lives, all my plantation or tract of land on Slann’s Island, commonly called Grlover’s tract, and also that plantation or tract of land on Chehaw, together with all the slaves, stock, plantation implements and utensils on the said two plantations, belonging to me at the time of my death, and the sum of twenty thousand dollars. And upon the death of my said grand-sons respectively, then I give, devise, and bequeath their respective shares in the said lands and negroes, stock, plantation implements and utensils, and twenty thousand dollars, unto their respective lawfully begotten issue living at the time of the respective deaths of my said grand-sons, who, to wit, the said issue, who shall attain the full age of twenty-one years, or who, dying before that time, or before the death of my grand-son or grand-sons, as aforesaid, leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have attained the full age of twenty-one years, to be equally divided among them ; if more than one, then to them, their heirs and assigns, absolutely and forever, the issue of any deceased issue then only taking and receiving the share or proportion to which the parent or parents, £f alive, would have been entitled. And'should either of my said grand-sons die without leaving lawfully begotten issue living at his, my said grand-son’s death, who, to wit, the said issue, who shall live to attain the full age of twenty-one years, or dying before that age, leave lawfully begotten issue living at the time at which the parent or parents, if alive, would have reached the full age of twenty-one years, then the part of the one so dying shall go *291to the survivor of my said grand-sons, or to tbe issue of bim of my said grand-sons, who may have previously died, leaving issue living at the time of his death, who, to wit, the said issue, who shall live to attain the full age of twenty-one years, or dying before that time, leave lawfully begotten issue living at the time at which the parent or parents, if alive, would have reached the full age of twenty-one years; if one, then to that one, his or her heirs and assigns, absolutely and forever : and if more than one, then to them, their heirs and assigns, absolutely and forever, the issue of any deceased issue only taking and receiving the share or proportion which the parent or parents, if alive, would have taken and received. And should both of my said grand-sons die without leaving lawfully begotten issue living, at the death of the survivor of them, my said grand-sons, who, to wit, the said issue, who shall live to attain the full age of twenty-one years, or who, dying before that age, leave lawfully begotten issue living at the time at which the parent or parents, if alive, would have reached the full age of twenty-one years, then, and in either of those cases, I give, devise, and bequeath the said two plantations and negro slaves, with the stock, plantation'implements and utensils, and the said sum of twenty thousand dollars, unto the right heirs then living of me, the said William Edings, to be equally divided among them, according to the law of this State for the distribution of intestate’s estate.

“ Item. I give, devise, and bequeath all my plantation called Indian Field, purchased of the executors of Henry Calder, together with all the slaves, stock, plantation implements and utensils, and personal property belonging to me thereon, at the time of my death, and also my wench named Katy, with her issue and increase, unto my dear daughter, Sarah Chisolm, the wife of George Chisolm, junior, for and during her natural life, to and for her sole and separate use, and without being in any manner subject to the debts, contracts, or control of any husband whom she may have ; and from and immediately after the death of my said daughter, Sarah Chisolm, then I give, devise, and bequeath *292the said plantation called Indian Field, and the slaves, stock, plantation utensils and personal property tbereon belonging to me, unto the lawfully begotten issue of my said daughter, Sarab, living at the time of her death, who, to wit, the said issue, who shall live to attain the full age of twenty-one years, or who, dying before that time, shall leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have attained the full age of twenty-one years ; if more than one, then to them, their heirs and assigns, absolutely and forever ; and if one, then to that one, his or her heirs and assigns, absolutely and forever, the issue of any deceased issue of my said daughter, and whether the said issue died before or after my said daughter, taking and receiving the same share and proportion as the parent or parents, if alive, would have taken and received; and should my said daughter, Sarah, die without leaving lawfully begotten issue living at the time of her death, who, to wit, the said issue, who shall live to attain the full age of twenty-one years, or who, dying before that age, leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have attained the full age of twenty-one years, but leaving her husband surviving her, then, and in that case, I thenceforth give, deviso, and bequeath the use, occupation, and enjoyment of the said real and personal estate, mentioned and contained in this clause of my will, unto her said husband, for and during his natural life, and then from and after the death of her said husband, I give, devise, and bequeath all the said real and personal property mentioned and contained in this clause of my will, unto the right heirs then living of me, the said William Edings, to bo equally divided among them, according to the laws of this State for the distribution of intestate’s estates. And should my said daughter, Sarah, die without leaving lawfully begotten issue living at the time of her death, who, to wit, the said issue, who shall attain tho full age of twenty-one years, or who, dying before that ago, leave lawfully begotten issue to live until the time at which the parent ■or parents, if alive, would have reached the full age of twenty-*293one years, and without leaving her, my said daughter’s husband, surviving her, then from and immediately after the death of my said daughter, I give, devise, and bequeath all the said real and personal property mentioned and contained in this clause of my will, unto the right heirs then living of me, the said William Edings, to be equally divided among them, according to the laws of this State for the distribution of intestate’s estates.

“ Item. In like manner, I give, devise, and bequeath all my plantationjm John’s Island, purchased of Commodore Campbell, together with all the slaves, stock, plantation utensils, and personal property belonging to me thereon, at the time of my death, and also all my plantation called Archfield, situate in Saint Paul’s Parish, and purchased by me of Mrs. Harriet Crafts, with all the slaves, stock, plantation utensils, and personal property thereon belonging to me at the time iof my death, and also my wench Hagar, with her issue and increase, unto my dear daughter, Mary Eripp, the wife of John A. Eripp, for and during her natural life, to and for her own sole and separate use, and without being in any manner subject to the debts, contracts, or control of any husband whom she may have; and, from and immediately after the death of my said daughter, Mary Eripp, then I give, devise, and bequeath the said plantation on John’s Island, and the said plantation called Archfield, and the slaves, stock, plantation utensils,. and personal property belonging to me on the said two plantations at the time of my death, unto the lawfully begotten issue of my said daughter, Mary, living at the time of her death, who, to wit, the said issue, who shall live to attain the-full age of twenty-one years, or who, dying before that time, shall leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have attained the full age of twenty-one years ; if more than one, then to them, their heirs and assigns, absolutely and forever; and if one, then to that one, his or her heirs and assigns, absolutely and forever, the issue of any deceased issue of my said daughter, and whether the said issue die before, or after her, my said daughter, taking and receiving the same share and proportion as the parent *294or parents, if alive, would bave taken and received. And should my said daughter, Mary, die without leaving lawfully begotten issue living at the time of her death, who, to wit, the said issue, shall live to attain the full age of twenty-one years, or who, dying before that age, leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have attained the full age of twenty-one years, but leaving her husband surviving her, then, and in that case, I thenceforth give, devise, and bequeath the use, occupation, and enjoyment of the said real and personal property, mentioned and contained in this clause of my will, unto her said husband, for and during his natural life ; and then from and immediately after the death of her said husband, I give, devise and bequeath all the said real and personal property, mentioned and contained in this clause of my will, unto the right heirs then living of me, the said William Edings, to be equally divided among them, according to the laws of this State for the distribution of intestate’s estates; and should my said daughter, Mary, die without leaving lawfully begotten issue living at the time of her death, who, to wit, the said issue, who shall attain the full age of twenty-one years, or who, dying before that age, leave lawfully begotten issue to live until the time at which the parent or parents, if alive, would have reached the full age of twenty-one years, and without leaving her, my said daughter’s husband, surviving her, then from and immediately after the death of my said daughter, I give, devise, and bequeath all the said real and personal property, mentioned and contained in this clause of my will, unto the right heirs then living of me, the said William Edings, to be equally divided among them, according to the laws of this State for the distribution of intestate’s estates.

“ Item. I give and. bequeath my slave Daphne, with all her issue and increase, unto my grand-son, William Edings, his executors, administrators, and assigns forever.

“ Item. I give, devise, and bequeath all the rest, residue, and remainder of my estate, real and personal, whatsoever and wheresoever, unto my dear wife, the issue of my deceased daughter, *295Eliza Whaley, and my two daughters, Sarah Chisolm and Mary Eripp, to be equally divided among them, share and share alike, the issue of my daughter, Eliza Whaley, receiving only one share; and I will order and direct that the issue of any of my said residuary devisees and legatees who may die before me, shall take and receive the same share and proportion in my said residuary estate, real and personal, as the parent or parents, if alive, would have taken and received.”

CODICIL.

*“*Item. I farther more give and bequeath unto my grand-sons, William Edings and John Evans Edings, the children of John E. Edings, the proceeds of the crop of cotton made on my plantation on Edisto Island, in the year eighteen hundred and thirty-five, to be equally divided between them, each receiving his respective share as he comes to the lawful age of one and twenty years.

*“*My executors named in my will are authorized to convert the same into any valuable property for them use.

“ Item. It is likewise my will, that should either of the above named children die before he attains the age of one and twenty years, leaving no lawful issue, then, in that case, the survivor shall be heir to the whole amount.”

The defendant, John Evans Edings, appealed from so much of the foregoing decree, as declares that William M. Edings took a vested estate in a moiety of the Edisto Island property, on the following grounds :

1. Because the attainment of the age of twenty-one years formed a part of the original description of the devisee and legatee, and the interest was necessarily contingent on account of the person ; and that William M. Edings not having attained that age, never answered the description of the person who was to take.

2. Because the attainment of the specified age was a condition precedent to the vesting of any interest in William M. Edings, and not a condition subsequent, the fulfilment of which would make a defeasablo vested estate indefeasable.

*2963. Because the interest of William M. Edings in the real estate was not a remainder, but an executory devise ; and that his interest in the personal estate was an executory interest; and that the vesting of either depended upon his attaining the age specified.

4. Because the intermediate rents and profits of the said property accumulated for the benefit of the person who should become ultimately entitled to the *corpus.*

5. Because it is apparent from the will that the testator intended the intermediate rents and profits to accumulate, and to postpone the vesting.

6. Because the decree is contrary to law and equity, and the demurrer of the said John Evans Edings should have been allowed.

*B. J. Whaley,*for appellant.

If the testator stood, as to W. M. Edings, in *loco parentis,*and this were an application by W. M. Edings to be allowed maintenance out of the rents and profits, the application could not succeed. *Sanson*vs. *Gfraham,*6 Yes. 238; *Chambers*vs. *G-oldwyn,*11 Yes. 1; *MacJcie*vs. *Alston,*2 Des. 362; *Brailsford*vs. *Heyward,*2 Des. 30; *Allen*vs. *Cros-land,*2 Rich. Eq. 68 ; *Bairman*vs. *Green,*10 Yes. 48 ; *Cavendish*vs. *Mercer,*5 Yes. 195; *Kendall*vs. *Nash,*5 Yes. 197; *Mitchell va. Bower,*3 Yes. 282 ; *Long*vs. *Long,*3 Yes. 286, note; *Greenwell*vs. *Greenwell, 5*Yes. 195. But the exception to the general rule of law, (that a contingent legacy, with a limitation over, or a legacy payable at twenty-one, does not carry interest,) does not extend beyond the case of parent and child, or husband and wife; and the testator’s will contains nothing which shows that he intended to place himself in *loco parentis. Criekett*vs. *Dolby,*3 Yes. 10; *Butler*vs. *Butler,*3 Atk. 58 ; *Lupton*vs. *Lup-ton,*2 Johns. Ch. 628; *Van Bramer*vs. *Hoffman,*2 Johns. Ch. 200; *JErrington*vs. *Chapman,*12 Yes. 10; *Rawlins*vs. *Gold-frap,*5 Yes. 440 ; *Leslie*vs. *Leslie,*Lloyd and Gr. 1; *Moggridge*vs. *Thaclcwell,*1 Yes. 474; *JEarle of Radnor*vs. *Shafto,*11 Yes. 457 ; 2 Jarm. on Wills, 742. Upon the first and second grounds of appeal *Mr. Whaley*cited *Boraston’s*case, 3 Rep. 19; *JEd-wards*vs. *Hammond,*1 B. and P. New Rep. 324, noté ; Fearne, *297241, *et seq.; Broomfield*vs. *Crowder,*1 B. andP. New Rep. 313; *Doe*vs. *Moore,*14 East. 601; *Doe*vs. *Nowell,*1 M. and S. 327, S. C. 5 Dow, 202 ; *Phipps*vs. *Williams,*5 Sim. 44 ; 2 Yes. Sen. 121; 18 Yes. 368; 3 P. W. 300 ; Cases Temp. Talbot, 228; 2 Yes. Sen. 521; Ereem. 243 ; Cases Temp. Talbot, 245; *Bull*vs. *Pritch-ard,*1 Russ. 213; Vawdryvs. *Gfeddes,*1 R. and M. 203 ; *Leake*vs. *Bolinson,*2 Mer. 363 ; Smith on Execut. Int. 136 *et seq.; Duf-field*vs. *Dujfield,*1 Dow and C. 268 ; *Barker*vs. *Lea,*1 T. and R. 413 ; *Bland*vs'. *Williams,*1 M. and K. 411; *Judd*vs. *Judd,*3 Sim. 525; *Blunter*vs. *Judd,*4 Sim. 455 ; *Phipps*vs. *Ackers,*9 Cl. and Ein. 595; *Skey*vs. *Barnes,*3 Mer. 334; Smith- on Execut. Int. 184; 1Jarm. on Wills, 738, *et seq.; Brailsford*vs. *Bey-ward,*3 Des. 30; *Mackie*vs. *Alston,*3 Des. 362; *Bedfern*vs. *Middleton,*Rice, 459 ; Eearne, 503; 4 Johns. Ch. 388 ; 7 Wend. 52; Jac. R. 468; 1 Story Eq. § 289, 290.

*Elliott, Petigru,*contra,

cited *Croodtitle*vs. *Whitby,*1 Burr. 234 ; 1 Jarm. on Wills, 624, *et seq.;*1 Eearne, 241, 347; Sug. on Real Prop. 286 ; Eearne Posth. W. 191.

The opinion of the Court was delivered by

DuNKIN, Ch.

The Court have given to this appeal all the consideration which the importance and difficulty of the questions involved, and the able argument of the counsel properly demanded. Not only have conflicting decisions been adduced, but text writers of acknowledged respectability have differed as to the result of those decisions. It is believed, however, that not only is the preponderance of authority in favor of the clecree, but that, in adopting this construction, some general principles are followed which this Court have uniformly recognized in the interpretation of testamentary instruments.

It is not proposed to attempt any further ieview of the authorities. . But it has been familiarly stated, and was repeated by this Court in *Smith*vs. *Hilliard,*3 Strob. Eq. 211, that whenever there is a doubt whether the estate be vested or contingent, “ the ruléis to presume that the testator intended to give a vested rather *298than a contingent interest; and even where the words import contingency, but do not create a condition precedent, they give a vested interest to the devisee, subject to be divested if the contingency should not happen.” See also Eearne, 241 to 247, (10th Ed.) Although the reasons of this rule are various, and more or less obvious, and, as might be supposed, have been received with more or less favor, the rule itself seems well settled. So from *Boraston’s*case, 8 Rep. 19, down to the very recent case of *Williamson*vs. Berry, decided by the Supreme Court of the United States in 1850, 8 How. 495, words seemingly creative of a future interest have been frequently construed to refer to the futurity of the possession, and not as designed to postpone the vesting of the estate. In *Boraston’s*case there was a term of eight years devised to A. and B., and, after the said term, the land to remain to executors for the performance of his will £ *till such time, as &. should accomplish his full age of twenty-one years ;*and *when*the said H. should come to his age of 21, *then*to him and to his heirs forever.’ It was held by the Court that the estate was vested in H.; that the adverbs of time, when, &e., did not make any thing necessary to precede the vesting of the remainder, but merely expressed the time when it should take effect in possession. It was said at the bar, that, in the devise to the issue of John Evans Edings, there was a double contingency. The issue must be alive at the death of John Evans Edings, *and*must also attain twenty-one years of age, and that, although the issue might have attained twenty-one years of age and then died before his father, such issue failed to answer the description (as it was said,) and the estate never vested. I concur with the counsel that the absence of either circumstance is equally available, and, if non-age prevented the vesting, so would want of surviving the parent. The effect of this latter circumstance seems to have been fully considered in *Williamson*vs. *Berry.*Testator devised his estate to trustees, in trust to pay the rents, &c., to Thomas B. Clarke, during his natural life, and from and after the death of the said Thomas B. Clarke, in further trust to convey the same *299to the lawful issue of tbe said Thomas E. Clarice living at his death, in fee ; and if the said Thomas B. Clarke should not leave any lawful issue at the time of his death, then in further trust to convey the premises to testator’s grand-son, Clement 0. Moore, and to his heirs. The Judges of the jCircuit-Court of the United States for the Southern District of New York concurred in the opinion, that, on this devise, the first born child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate, as they were successively born. Upon other points of the case the Judges were divided in opinion; and upon that division the cause was certified to the Supreme Court of the United States. It was not perhaps necessary for the Supreme Court to pronounce on a question upon which the circuit Judges were agreed. But they commence by declaring as follows : “ It is right, however, to say that we concur with the learned Judges of the Circuit Court, that, under the will of Mary Clarke, the first born child of Thomas B. Clarke, on its birth, took a vested estate in remainder, which opened to let in his other children to a like estate, as they were successively born ; and that their vested remainder became a fee simple absolute, in the children living, on the death of their father.” It might here have been urged, that the trustees were to convey only to the lawful issue of Thomas B. Clarke *living 'as his death,*and that until his death, it was uncertain who would answer that description; but the Court held, that the estate vested immediately on the birth, subject only to be divested, or.defeated, if the issue should not be alive at the death of the parent. It will be remarked, that in *Williamson*vs. *Berry,*as in the case under review, there was a limitation over in default of issue at the time specified. “ This class of cases,” says Sir Edward Sugdon, “ goes on this principle, that the gift oyer, in the event of the devisee dying under twenty-one, sufficiently showed the meaning of the testator to have been, that the first devisee should take whatever the party claiming under the devise over was not entitled to, which of com’se gave him the immediate interest, subject only to the *300chance of its being divested on a future contingency.” Sug. Law of Prop. 290. If, then, there is a previous gift, as in *Boraston’s*case, and also in this, the first interest is regarded as an exception out of the gift to the infant, which takes effect on the determination of the preceding interest; or, if there is a gift over, the first devisee takes all to which the devisee over is not entitled. In both cases the Court struggle, and, as the writer states, have hitherto “ struggled effectually to carry into effect the testator’s intention.” The devise in this will is substantially to the testator’s son for life, “and from and immediately after” the death of his son, to the lawfully begotten issue of his son living at the time of his death, who shall live to attain twenty-one years of age, &c., and if the son should die without leaving issue at the time of his death, who should attain twenty-one years of age, then to the right heirs of the testator then living, &c. The manifest object of the testator was to vest the fee in the issue of his son. The preceding interest, as in *Boraston’s*case, was merely an exception out of the gift to them. On the determination of that preceding interest, or, in the stronger and more emphatic language of the will, *“*from immediately after ” the death of his son, the devise to the issue took effect. But if the issue should not be alive at the death of the son, or, being alive, should not attain twenty-one years of age, “the said real and personal property described in that clause of his will, ” is devised and bequeathed to his right heirs then living. What could the right heirs of the testator then living claim ? Certainly no more than the real and personal property described in that clause of the will. All not given over to them is taken, according to the authorities, by the first devisees in fee. The will of the testator is then complete. The son enjoys his life estate. His issue continue in the enjoyment of it until, on arriving at twenty-one years of age, in the language of *Williamson*vs. *Berry,*“ their vested remainder became a fee simple absolute.” But until that time their vested estate was subject to de-feasance by their death under twenty-one years of age. Upon the happening of that contingency, the estate, real and personal— *301the plantation and slaves — passed to .the right heirs of the testator then alive. It is this plan or purpose, so natural in itself, and, it may be added, so apparent in the instrument, which the Courts have endeavored to carry into effect, and which is declared by the circuit decree. On the other hand, it remains only to say, that, if the estate was not vested, it is not only uncertain as to what should become of the interim profits between the death of John Evans Edings, and the arrival of his sons to twenty-one years of age, hut it would become a grave question whether the whole purpose of the testator in the provision for his son’s issue would not be effectually frustrated.

The appeal is dismissed.

Wardlaw and DargaN, OC., concurred.

*Appeal dismissed.*