#### James Lowry *vs.*Warren A. Muldrow.

Testator deyisecl as follows: UI give and devise to my brother *W,*L., for and during his natural life, my plantation, &c., and from and after his death, I give and devise the said plantation to his sons during their natural lives, and after their death their parts thereof to their children forever.” "W. L. survived the testator, and at his death the plantation was divided among his sons, J. L. being one, all of whom were *in esse at*the death of the *testator:*— Held, that *J.*L. took, in the *part*of the land which he got in the division, only an estate for life — the limitation to his children not being void for remoteness.

“Where land is devised to be divided upon a future event, — as upon the death of A. —between a class of persons — as the sons of A. — each son to take his part for life, with remainder to his children, it does not follow that the remainder to the children of a son who was *in esse*at the death of the testator is void for remoteness, because other sons might have been born to A. after the death of testator who would have been entitled to take in the division, and to whose children the limitation would have been void for remoteness.

On a bill for specific performance by the vendor, the Court will not compel the defendant to take a title which is reasonably doubtful.

BEFORE DARGAN, OH., AT SUMTER, JANUARY, 1856.

Dargan, Ch. On the 25th of October, A. D. 1858, the plaintiff and Warren A. Muldrow entered into a contract, *242under seal, by which the former, for the consideration of six dollars per acre, agreed to convey to the latter, in fee simple, a certain tract of land therein described. The particulars of the agreement (for the purposes of this case) need not be further noticed. Muldrow has been inducted into the possession of the premises, according to the terms of the agreement, and has given his note for one instalment of the purchase-money. The plaintiff has tendered him a title in fee simple, with a general warranty, which Muldrow has refused to receive, and declines further fulfilment of the contract, on the ground that the plaintiff is unable to make him a good and sufficient title in fee simple; he having only a life estate. The plaintiff has filed this bill for a specific performance of the contract. The only question discussed on the trial relates to the sufficiency of the title of the plaintiff. lie will be entitled to the relief which he seeks, if he can make a title according to his covenant. The title of the plaintiff to the land in question was derived under the will of Samuel Lowry, executed on the 13th September, 1825. By the first clause of the will, the testator says: “ I give and devise to my brother, William Lowry, for and during his natural life, my plantation whereon I now live, it being formed of several adjoining tracts of land, and from and after his death, I give and devise the said plantation to his sons during their natural lives, and after their death their parts thereof to their children forever.”

On the death of the testator, William Lowry, the brother and devisee of the said testator and the father of this plaintiff, took possession of the land devised to him in the clause of the will which has been cited, and continued in the possession thereof until his death, which took place in the month of June, A. D. 1831. At the date of tMs event, William Lowry (the de-visee) had several sons, of whom James Lowry, the plaintiff was one and all of whom were *in esse*at the death of the testator. On the death of their father, the first taker and tenant for life, there was a partition 'of the property among his said *243sons, each of whom went into the possession of his share. The land which is the subject of this controversy was assigned to James Lowry, the present plaintiff. His title thus derived is undisputed. We are only to enquire as to the quantity of his interest or estate. ITe has now three children, Samuel, James and Sarah Lowry, all born after the death of Samuel Lowry, the testator, and of William Lowry, the devisee and tenant for life, and they are infants.

It is clear that William Lowry took a life-estate with remainder to his sons horn or to he born. But what estate did the sons of William take? Did they take an estate for life with remainder to their children as purchasers, as the testator seems to have intended ? This would probably have been the construction, had the testator in the first instance limited the estate to the sons of William living at the death of the testator. But by physical possibility, and even probability, William might have had other sons born unto him after the testator’s death. And in that event the *post nati*as well as the *ante nati*would have been entitled: for they would have come within the description of persons who were to take on the death of William. It is clear that the *post nati*and the *ante nati*would have taken the same estate. But as to the limitation in favor of the children of the after born sons' of William, it would have been too remote. It would not have been within the rule which the law prescribes against perpetuties. It could not have taken effect within life or lives in being and twenty-one years afterwards. It is perfectly legitimate to test the construction of a will in questions of this character, by showing that, on a particular construction contended for, results might take place which the law would not permit. To prove the unsoundness of a given construction, we may not only appeal to facts which have happened, but to consequences which grow out of such a construction from facts that might have happened. In this point of view, I think that the gift to the *244children of the sons of William is too remote, and that they cannot take as purchasers.

If this construction be correct, what estate did James (the son of William) take? Did he take a fee simple or a fee conditional ? One or the other of these estates he must take, if the remainder to his children is too remote.

This is an embarrassing question, and, as it is not necessary for the purposes of this case that it should be decided, I waive its discussion at the present time. Whether James Lowry has a a fee simple or fee conditional, he has such a title as the defendant is bound to accept.

It is ordered and decreed that the defendant do specifically execute and perform the contract set forth in the plaintiff’s bill.

It is further ordered and decreed that the costs of this suit be paid according to the stipulations of said contract.

The defendant appealed, and moved this Court to reverse the decree.

Because the complainant has no estate of inheritance in the land agreed to be sold; not having either an estate in fee simple absolute, or conditional.

*Moses,*for appellant.

*Haynsworth,*contra.

The opinion of the Court was delivered by

WaRdlaw, Ch.

Samuel Lowry by the first clause of his will, made the following disposition of a portion of his estate; “ I give and devise to my brother William Lowry, for and during his natural life, my plantation whereon I now live, it being formed of several adjoining tracts of land, and from and after his death I give and devise the said plantation to his sons *245during tbeir natural lives, and after their death their parts thereof to their children forever.” At the death of the testator all the sons, including James the plaintiff, of William the first tenant for life were in existence. Upon the death of William the plantation devised was' divided among his sons, and to the plaintiff was assigned the tract of land now in controversy. The plaintiff agreed under seal to convey this tract to the defendant, and has tendered to defendant a conveyance in fee simple with general warranty, which defendant refuses to receive, supposing the plaintiff to have a life estate only in the land. The bill prays specific performance of the contract, and the question in the cause is, whether plaintiff has title in fee. We hold with the Chancellor, 'that the validity of a limitation over on a question of remoteness, must depend on events possible at the time of the creation of the gift, and that it is not generally to be controlled by the events which have actually occurred. The contingency upon which a gift over is to take effect, must necessarily happen within lives in being and twenty-one years after-wards from the creation of the gift. We agree too that the donation to the sons of William includes all of his sons who may come into existence before the period of distribution which is the death of William; and, that by possibility William might have sons born more than twenty-one years after the death of the testator, and that the limitation over to the children of such unborn sons, would be void for remoteness. But the exact question in the case is whether the whole limitation over to the children of the sons of William is to be declared void, because the limitation over would be too remote as to the children of such sons of William as might possibly be born after the legitimate era from the death of the testator. On this point we differ from the Chancellor’s conclusion, although he has not discussed the question, nor have the counsel on either side discussed it before this Court.

By the devise under consideration, the testator manifestly contemplated a division of his plantation among the sons of *246William, at the expiration of a life in being, namely that of William, and in fact such division was made. The testator further directs that the sons of William should hold for life only, and that their “ parts” on their deaths respectively, should proceed to their children in fee. If the limitation over had been confined to the children of the sons of William *in esse,*at the death of the testator, or. more largely to the children of such sons as might be born within twenty-one years after the death of the testator, it would have been unquestionably valid. Is the limitation over to the children of sons within the rule against perpetuities to be defeated by the possibility that the life tenant might have sons whose children might be without the rule ? We think not, because the testator has directed separation of his plantation into parts, and, that these parts shall go to the children of the previous life tenants. Possibly, although the fact is otherwise, some of the children of the sons of William might not be enabled to take by purchase, but why should this disable others to take their shares when the estate is given partitively ? The “ parts” of the sons of William are to go to their children. Suppose the testator after providing for division of the estate at the death of William, had proceeded to declare expressly that the share of James should be held for his life only and then go to his children, and that the same course should be taken as to the share of any son of William unborn at .testator’s death, surely the invalidity for remoteness of the gift over to the children of the unborn son would not disturb the gift over to the children of James, which is within the era allowed by the rule against perpetuities. Yet the testator has in substance made this precise disposition. He has directed division at the death of William among his sons, and that their *parts*should be held for life only, and then go to their children in fee.

It is a settled rule of construction that Courts will give effect to the lawful dispositions of a testator, although some portions of his disposition may be invalid by some rule of law. His intention is to be consummated so far as it is legitimate. Thus *247where real and personal estate are given over in the same clause, upon the death of the first taker without *leaving*issue, the gift over of the personalty is supported although the gift over of the realty fails. *Forth*vs. Chapman, 1 P. Wms. 665; *Mazyck*vs. *Vanderhorst,*Bail. Eq. 48. If this distribution of the terms of donation be allowable as to the subjects of gift, there is no reason why it should not also prevail as to the objects of gift. So, where there are distinct limitations to two different classes, with one general gift over upon an event equally applicable to the members of both classes, good as to one class, and void as to the other for remoteness, the gift over will be supported as to one class although void as to the other class. Lewis on Perpetuities, 461; *Cromek*vs. Lamb, 8 You. & Col. 565. So also, on gifts over upon a contingency with a double aspect, if in fact one of the contingencies happens within the line of perpetuity, the gifts over are supported. Lewis on Per-petuities, 508. Other analogies might be presented.

It may be that we have not conclusively demonstrated that the estate of the plaintiff in the land in controversy is for life only, but it is sufficient for the defendant that the plaintiff’s title in fee is reasonably doubtful. On bills for specific performance of contracts concerning lands, and the present case is of this character, Courts of Equity do not force the purchasers to take anything but a good title, and do not compel them to buy law suits. Courts of Law consider a title as doubtful only in matters of fact, but Courts of Equity, in deference to the Law Courts, consider a title as doubtful in law as well as in fact, where the law is not settled. We consider the plaintiff’s title as at least doubtful. Lewis on Per. 116.

It is ordered and decreed that the Chancellor’s decree be reversed, and that the bill be dismissed.

JOHNSTON and DukkiN, CC., concurred.

*Decree reversed.*