#### Thomas Wilson *vs.*William S. McJunkin, and others.

*Wills and Testaments*— Limitation *of Estates.*

The testalor devised real and personal estate to his executors in trust, for the sole and separate use of his daughter N., “for and during the term of her natural life, and at her death to be equally divided amongst her children in fee simple.” N. had eight children living at the death of the testator, one of whom died tn the lifetime of N., leaving a husband, but no issue, surviving her:— Held, that the eight children took vested interests, and that the representative of the one who died in the lifetime of N. was entitled to her share.

BEFORE DARGAN, OR, AT UNION, JUNE, 1858.

The circuit decree, which states the whole case, is as follows :

Dargan, Ch. William Sartor, by his last will and testament, devised and bequeathed certain real and personal estates, described in the plaintiff’s bill, to his executors, in trust for the sole and separate use of his daughter, Nancy McJunkin, wife of Joseph McJunkin, for and during the term of her natural life, and, at her death, to be equally divided amongst, her children in fee simple. The property thus given consisted of a tract of land, whereon the said Joseph McJunkin lived at the date of the will, and two negroes, Joe and Dinah, and also sundry executions against the said Joseph McJunkin, and various choses in action, which the testator held against him, which he directed to be collected or to be appropriated in the purchase of negroes from McJunkin, to be held in the same trusts. The negroes were accordingly purchased with the fund thus designated; Nancy McJunkin' was permitted by the trustees to possess and enjoy the real and personal estate during her life, according to the scheme of the trust. Nancy McJunkin died 15th *528of January, A. D. 1856, leaving surviving her, children as follows, viz: Emeline Wilson, wife of William Wilson, Frances Davis, wife of P. A. Davis, Amanda Fant, wife of David A. Fant, Sarah J. Thomas, wife of- Thomas, William S. McJunkin, Robert D. McJunkin, and Plarriet McJunkin, who has since intermarried with William Jeter.

At the death of the testator, Nancy McJunkin, the tenant for life, had another child, Mary McJunkin, who, A. D. 1840, intermarried with the plaintiff, Thomas Wilson, and who gave birth to a child who died in the life of the mother (almost immediately on its birth.) The said Mary McJunkin, afterwards Wilson, predeceased her mother the tenant for life, Nancy McJunkin. She died in 1845. Joseph McJunkin, the father, survived Mary — he died A. D. 1855.

At the death of the tenant for life, the estate to be divided among the remaindermen, her children, consisted of the tract of laud aforesaid, and thirty-seven negroes, which negroes were valued at $25,008 25.

On the 22d February, 1S56, William S. McJunkin, Robert D. McJunkin, P. A. Davis and wife, Sarah J. Thomas, who has since intermarried with John Fant, David J. Fant and wife, Harriet McJunkin, who has since intermarried with William Jeter, and William Wilson, made a partition of the negroes among themselves.

On the 28th April, 1856, a bill was filed for the purpose of effecting a division among the same parties of the real estate, and also to confirm the informal division of the negroes, made on the 22d February, 1856. The land was ordered to be sold for division, and a decree was rendered confirming the said informal division of the negroes. A sale of the land was made in November, 1856, aud confirmed at June term, 1857.

The plaintiff, Thomas Wilson, was not a party to the private partition among the parties, nor was -he a party to the proceedings by which that partition was confirmed, and by which the land was sold for partition. He claims that his *529wife, Mary, took a vested interest, by way of remainder, in the estate of which Nancy McJunkin was tenant for life, which was transmissible to her representatives, and that *he,*as her husband and distributee, was entitled to the one-half part of the share to which she would have been entitled if she had been living at the period of partition.

This claim of the plaintiff is resisted by the defendants on two grounds; the first of which is, that Mary, the wife of the plaintiff, took no vested estate or interest under the will of her grand-father, William Sartor. The question thus raised for the decision of the Court I had thought so well settled as not to admit of controversy or serious doubt; so plain is it, in fact, that it does not, so far as I am informed, seem to have been raised in any reported decision in South Carolina. But when we turn to the English authorities, we find the principle so well settled as to account for the question not having been raised in our Courts.

The defendants contend that the remainder to the children of Nancy McJunkin, after her decease, was contingent, because it was uot certain that they would be living at that period, while, in the meantime, other children might have been born to participate with the *ante naii,*to the diminution of their respective shares. It will be remembered that Mary, the plaintiff’s deceased wife, was born at the death of the testator, and there was no child of Nancy McJunkin born after the date of the will. The gift is to Nancy McJunkin during her life, and at her death to be equally divided among her children in fee simple. Fearne, 1 vol. p. 9, classifies contingent remainders into four kinds. His fourth class of contingent remainders he defines “where a remainder is limited to a person not ascertained, or not in being at the time when such limitation is made.” In this instance Mary McJunkin was in being, and was ascertained at the time when the limitation was made. The facts satisfy the requisition of this rule to its fullest extent.

The'fact that children subsequently born might come in *530and participate, does not, cannot affect the right of children *in esse*at the creation of the limitation to *take an estate,*but merely disturbs the rights as to the *quantity*which they would be entitled to take. The *quantity*of their interest only, and not their estate, is contingent. In this case the question relates to a child who was in existence at the creation of the remainder. But it is equally well settled that where an estate is given to one for life, and after his death to his children; that children born after the creation of the limitation will come in equally with those born before, and that the estates of those born subsequently become vested interests *eo instanti*upon their birth. This, it must in candor be admitted, does not conform literally with Mr. Fearne’s definition, that a remainder is contingent when limited to a person not ascertained or not in being at the time when such limitation is made. But it is not inconsistent with the *rationale*of any rule upon the subject, and it is productive of no evil consequences to hold, that in such a case the children *in esse*shall take vested estates for themselves, and for those who may afterwards be born and come within the description of those who may be entitled to take. As soon as the estate is created, it vests (the whole of it) in the then existing remaindermen, and as soon as another child is born his equal and undivided share vests in him as in the others previously born: so that there is never at any time any portion of the estate not vested or contingent as to an existing proprietor. The Courts are said to have “ *a leaning”*in favor of construing estates to be vested, rather than contingent — the meaning of which is, that the policy of the law which is always supposed to be based upon the best interest of society, favors the vesting of estates. Though contingent estates must necessarily exist, and are essential to the wants <of society and civilization, it is always better, so far as is practicable and consistent with these demands of society, .that every estate should have an existing and ascertained *531proprietor. Hence, the law favors that construction which holds estates to be vested.

In the particular class of cases which I am considering, there is another and a special reason why the estates of even the after-born children should vest upon their birth. In *Doe vs.*Perryn, 3 T. R., 4S4, 495, Buller, J., holds the following language: The Courts of Law “ have said that the estate shall vest on the birth of a child, and without waiting for the death of the parents; which rule is not attended with any inconvenience to the children, because where the estate is limited to a number of children, it shall vest in the first, and afterwards open for the benefit of those who shall be born at a subsequent period. But if this were held not to vest till the death of the parent, this inconvenience would follow: that it would not go to grand-children. For, if a child were born who died in the lifetime of their parents, *leaving issue,*such grand-children could not take; which could not be supposed to be the intention of the devisor.” By the other Judges who sat in the case, Ashhurst, J., and the Chief Justice (Lord Kenyon), this principle was assumed to be well settled at that time.

Since that time, (A. D. 17S9,) the principle that the shares of the after-born remaindermen shall vest at their births, respectively, has been frequently recognized, and, so far as I know, has never been departed from or questioned. In 4 Kent Com., 197, it is laid down in the following language:

“ When a remainder is limited to the use of several persons who do not become capable at the same time, as a devise to-A for life remainder to his children, the children living at the - death of the testator take vested remainders, subject to be< disturbed by after-born children. The remainder vests in - the persons first becoming capable, and the estate opens and becomes divested in quautity by the birth of subsequent children, who are let in to take vested proportions of the estate.” This lucid abstract of the learned commentator is amply supported by his numerous authorities.

*532The defendants farther contend that the plaintiff, if ever he was entitled to any part of the estate, has waived and released the same. They do not pretend that he has actually and formally done this, but that the circumstances and facts raise the implication.

I will mention the facts which they think amount to a waiver or a release on the part of the plaintiff. They say he was aware of the proceedings in this Court for a confirmation of the private division, and for a sale of the land and division of the proceeds. They offered no proof of notice of this fact, but infer it from the circumstances, that he at the time was a resident of Columbia or Lexington, and that the sale of the land was advertised in the Unionville Journal. These are all the. facts on which they ground their presumption, that the plaintiff had notice of the judicial proceedings. If he had had express notice, I do not see how that couid have affected his rights, except so far, perhaps, as to have estopped him from questioning the title of the purchaser of the land. If he had stood by and seen the land sold to another, without interposing an objection, the purchaser might have complained. But, suffering the title of the purchaser to stand unimpeached, what should prevent him from setting up a claim to his proper share of the proceeds of the sale of the land ?

The defendants also adduced in evidence a letter of the plaintiff to his brother, William Wilson, to show a surrender of his interest. The letter is a private and confidential communication to his brother. The *strongest expressions in the*letter, bearing on this point, are those in which he says he had heard of the division of the effects. *“I do*think,” he says, “I should be entitled to the household effects which Mary (his wife) had when she died. As for the bed and furniture, she made them with her own hands; and as for the other furniture, her mother made it and gave it to her. I do not wish them to use myself, nor would I have it. I want your children to have it, &c.” He further says: “I have *533been advised to commence suit for art equal share as one of the legatees; I do not intend to do so. If I had everything, and could settle it on your children, without its coming into my hands, I would do so. I am hard run, and very far from being independent, though I do not and never did wish to live on my dear wife’s property, though I believe it would have been her wish for me to have what was hers; though in my present situation I do not desire it, only in the way I have stated. Please send me a copy of the will and keep this a secret, as you will be benefitted if anything comes.”

Farther on, he says: “ As regards D. Fant, (who had married one of the parties entitled,) I do not want him to have one cent which should have been poor Mary’s. He was the man who refused to help her at his own table, after being invited by her sister. He is unworthy to be called man. My blood boils whenever I think-of it now; to think he, a brute, should exult on what should have been hers.”

This letter the defendants rely on as a release from the plaintiff to the defendants, and D. Fant among them. It is evidently written in ignorance of the plaintiff’s rights, in a spirit of discontent of what he believes would be the inevitable result, and manifests anything but a disposition to concede anything which he believed to be his, and which the law would give him. This is what the defendants call a release!

If he had said to the defendants in so many words, that he would release to them all his interest and share, it would not have bound him. It would have been without consideration, and wanting in an essential form.

The plaintiff was and is entitled to the one-half part of the share of his wife in the said estate held by Nancy McJunkin for life, with remainder to her children in fee. Nothing has happened which can have the effect of divesting him of his rights. The children of Mrs. McJunkin were as follows: 1, Etneline, wife of William Wilson ; 2, Francis; 3, Amanda; 4, Sarah; 5, Harriet; 6, W. S. McJunkin; 7, Robert D. *534McJunkin; and 8, Mary Wilson, deceased, the plaintiff’s wife. These were the remaindermen with vested estates in common, being eight in number. The share of the plaintiff’s deceased wife was then one-eighth of the whole. The plaintiff, as her husband and distributee, is entitled to the one-half part of her estate. The other half is distributable between her father, now deceased, and her brothers and sisters. The plaintiff’s share is a sixteenth of the whole estate. *It is so ordered and decreed.*I do not know whether the proceeds of the sale of the land have been collected and paid over. If they have not, it is *ordered and decreed*that the commissioner do pay to the plaintiff the one-sixteenth part of the net proceeds of the sale of the said land, and of the interest that has accrued thereon. If the proceeds of the sale of the land have been collected and paid over to the other remaindermen, it is *ordered and decreed*that the commissioner state an account, with each of the other remainder-men, for the purpose of ascertaining how much each party must contribute to the plaintiff to make his share equal, and that each party pay to the plaintiff his or her proportionate share, and the interest thereon, from the time he received it, to make the plaintiff’s share equal.

It is further ordered and decreed, that a writ of partition do issue for the purpose of re-dividing the personal estate, so held by Nancy McJunkin for life, with remainder to her children. In such division, it is ordered that the commissioners assign and allot to the plaintiff, Thomas Wilson, one-sixteenth part of the whole, and that as to the rest of the said personal estate, and the other remaindermen, they, the commissioners, conform as near as may be practicable with the former division.

It is further ordered and decreed, that the commissioner in equity state an account of profits of the negroes, &c., which have been in possession of the defendants, and that the plaintiff do receive the one-sixteenth part of the said profits from the time that the said defendants have been in posses*535sion of the said personal estate, or in the enjoyment of the profits thereof.

It is further ordered and decreed, that each party, plaintiff and defendant, pay an equal part of the costs of these proceedings.

The defendants appealed on the grounds :

1. Because his Honor erred, it is respectfully submitted, in holding that Mary Wilson, wife of Thomas Wilson, took a vested interest under the will of Thomas Sartor, transmissible to her representatives.

2. Because his Honor erred in holding that Thomas Wilson is entitled to any portion of the estate distributable among the children of Nancy McJunkin.

3. Because, if plaintiff was entitled to any portion of said estate, he has released the same, or, at least, his acts and declarations raise that implication.

4. Because the decree is in other respects erroneous.

*Arthur,*for appellants,

cited : *Myers vs. Myers,*2 McC. Ch., 257; *Cole vs. Crayon,*2 Hill, Ch., 311 ; *Connor vs. Johnson,*2 Hill Ch., 41; *Campbell vs. Wiggins,*Rice,Eq., 10 ; *Swinton vs. Legare,*2 McC. Ch., 440; *Stewart vs. Sheffield,*13 East, 527; *Lomax vs. Glover,*1 Rich. Eq., 141; 1 Strob. Eq., 383; *Maiheson vs. Hall,*3 Swans., 339.

*Gadberry,*contra.

Per *Curiam.*

We concur in Chancellor Dargan’s decree, and for the reasons contained in it, it is affirmed.

O’Neall, C. J., and Johnstone and Wahdlaw, JJ., concurring.

*Decree affirmed.*