#### John R. Toomer *vs.*Thomas W. Rhodes and others.

*Limitation of Estates*— Practice.

A conveyed property to a trustee for the use of the grantor for life, and after his death, “in case he died unmarried and without children,” over. A. having married and had a child, hied this bill against the trustee and remaindermen, to have the deed cancelled, contending that the contingencies had happened which defeated the limitation over. The Court refused to interfere before the death of A, *holding*that, in the situation of the parties, it was sufficient that a reasonable doubt, as to the construction of the deed, should be entertained.

BEFORE DUNKIN, OH,, AT BEAUFORT, FEBRUARY, 1859.

Dunkin, Ch. On the 15th January, 1846, John Ralph Toomer, (the plaintiff,) in the presence of William B. Fick-ling and John J. Dupong, executed the deed, of which a copy is filed as an exhibit with the bill, and which was recorded in the Register of Mesne Conveyance of Beaufort district, on 2d February, 1846. By this deed, the plaintiff conveyed to the defendant, Thomas W. Rhodes, of Prince Williams’ parish, a plantation called Dalton,” and thirteen slaves, in trust for the grantor during his natural life; and from, and after his decease, *in case he died “ unmarried and without*children,” then to pay over one-half the annual income or profits to Mrs. Mary E. Toomer, (plaintiff’s mother,) if she should be then living, and so long as she lived; and to invest the other moiety for the use of Benjamin D. Rhodes, son of the said Thomas W. Rhodes; and upon the decease of Mrs. Toomer, to invest the whole for the benefit of the said Benjamin D. Rhodes, until he attained the age of twenty-five years, and then to convey and assure *“*the whole of the said property, with the accumulations, to the said Benjamin D. Rhodes, to him and his heirs, forever, in fee simple, and to no other uses whatever.”

*257In process of time, the plaintiff married — and a child has been since born to him; the mother and child being now-alive. This proceeding was thereupon instituted to have the said deed, of„ 15th January, 1846, delivered up to be cancelled, upon the ground that the same was *functus offido.*The answer of the trustee states that the deed was executed contrary to his wishes and against his protestations, and that he accepted the trust only upon the urgency of the plaintiff. But that, having done so, he did not regard himself at liberty to do any act which might prejudice the rights of the *cestuy que trusts.*Benjamin D. Rhodes is yet an infant, and the answer filed on his behalf, is merely formal. Against Mrs. Mary E. Toomer, an order *pro confesso*has been taken.

The proposition of the plaintiff is, that the terms “die unmarried and without children,” must be construed, *die without having been married, and without having had children;*1 Jarman on Wills, 456, was cited as authority. But upon examination of the text, it will be perceived, that the learned commentator, disapproves of this construction, and adopts, as a sounder interpretation, that the words mean, *not having a wife or child at the time of his death.*And for this-construction, he relies on the high authority of Lord Ellen-borough and Lord Hardwicke, as well'as more recent adjudications. It is not proposed, at this time, to express any definite opinion upon the construction. For the disposition of the cause, and in the situation of the parties, it is sufficient that a reasonable doubt may well be entertained. If the plaintiff should die without leaving wife or child, the conjuncture would arise upon which the claims of Benjamin D. ■ Rhodes, under the deed of January, 1846, would-be more satisfactorily considered. In the meantime, no rights are affected by declining to interfere by cancellation of the deed.

It is ordered and decreed, that the bill be dismissed without prejudice, but at the cost of the plaintiff.

*258The.plaintiff appealed on the grounds:

1. Because, the gift to the first taker being defeasible, on the event either of marrying or dying without children, and both of the contingencies of marrying and having children having occurred, the deed of 1846 was *functus*officio, and should be cancelled.

2. Because, the gift to the parent, although in form a life interest merely, is, in effect, the whole equitable estate defeasible on certain conditions, and there being nothing limited to the children, it was error to apply to such a case, a rule of construction belonging to those cases only in which the interest given to the parent is partial, and the remainder of the estate limited directly to the children; it being plain in such cases that the provision intended for the children, must necessarily be referred to the death of the parent.

*Rhett, Youmans, for*appellant.

*De Treville, Bell,*contra.

*Ouria*per O’Neall, C. J.

This Court concurs in the decree of the Chancellor.

It is therefore affirmed.

Johnston and Ware aw, J. J., concurred.

*Decree affirmed.*