#### *George Crim and wife et al.*vs. *Wm. Knotts et al.*

Sestator declared, “ it is my will and desire that the rest and remainder of my estate he divided into equal shares among my brother, Jacob Patterson, and Anthony Patterson’s lawful children, and that my brothers, Jacob and Anthony, have the use of their children’s portion, or part, during their natural lives, and at their death to their children forever.” At the death of testator Jacob had eight children living, and Anthony had three ; and Anthony had nine children born afterwards: *Held,*that Jacob and Anthony were each entitled to take one moiety of the estate for life ; and that at Anthony’s death all his children, as well those born after the death of testator, as those born before, were entitled to his moiety as remainder-men.

*Before*DargaN, Ch. *at Orangeburg, February,*1852.

DARGAN, Ch. John Patterson, of Edisto Island, died in the month of January, A. D. 1818. He left, in full force and duly executed, his last will and testament, bearing date the 31st December, 1817. William Seabrook, William Edings and Ephraim Mikell, were appointed by the testator as the executors of his ■will, and the said will having been admitted to probate, the executors took upon themselves the burthen and execution thereof. After bequeathing several specific legacies, (not necessary to be '•■particularly alluded to,) the testator proceeds to declare as fol*341lows : “ It is my will and desire, that the rest and remainder of my estate be divided into equal shares among my brother, Jacob Patterson, and Anthony Patterson’s lawful children, and that my brothers, Jacob and Anthony, have the use of their children’s portion, or part, during their natural lives, and at their death to their children forever.”

At the time of the testator’s death (and of the said sale,) Jacob Patterson had eight children, (not necessary to be described,) and Anthony Patterson had three children.- The children of the said Anthony Patterson, who were living at .the death of the testator, and the representatives of those since dead, are as follows : Margaret, his daughter, who has intermarried with George Crim; George C. Patterson, a son, who, according to the statement of the bill, left the State 12 or 13 years ago, and not having since been heard from, is supposed to be dead; and Mary, a daughter, who intermarried with Amos Harris, and who died on the 25th of February, 1844, leaving her husband, the said Amos Harris, and her children, Daniel Harris, Ellen Harris and Jane Harris, her heirs at law and distributees. After the death of John Patterson, (the testator,) Anthony Patterson had one other child by his first marriage, namely, Eliza Wactor, who is now a widow. After the death of his first wife, Anthony Patterson formed a second marriage, by which he had eight children, namely, Rachael 0., wife of James Wimbish, (now residing in Virginia,) Barbara S., wife of John Lucas, Leah E., wife of William Cleckley, Sarah C. Patterson, Jane Patterson, Donald Patterson, Jerome Patterson and Susannah Patterson. These children, with his second wife, Elizabeth Patterson, all survived the said Anthony Patterson.

The slaves purchased by Anthony Patterson at the sale of the estate of John Patterson, (or rather the survivors thereof,) and the natural increase of the stock are at the present time, seventeen in number, namely : Sarah, Isaac, John, Moses, Mary, Betsy, Joe, Sinda, Sealy, Sampson, Sylvester, Adam, William, George, Aaron, David and Rachael. These slaves were in the possession of Anthony Patterson at the time of his death, which occurred *342On tbe 31st May, 1850. Besides these, he had at the time of his death, two other slaves of a different stock, namely : Eleanor and Stephen, and some other personal property. The said Anthony Patterson having died intestate, one William Knotts has sued out letters of administration of the intestate’s estate, and has possessed himself thereof, as well of the negroes derived by his intestate from the sale of John Patterson’s estate, as those derived by’ him from another source.

The complainants are George Crim and Margaret, his wife, Amos Harris, Daniel P. Harris, Ellen Harris and Jane Harris. The defendants are William Knotts, the administrator, Eliza P. Waetor, a daughter of Anthony Patterson by his first wife, George C. Patterson, a son by his first wife, (who is absent and supposed to be dead,) and all his aforesaid children by his second marriage.

The complainants contend that they, with George C. Patterson, are entitled to the whole of the legacy given by John Patterson’s will to Anthony Patterson’s children, to the exclusion of the *post natal,*or those born after the testator, and after his will took effect.

The general rule is, that a bequest to children as a class, embraces only the children who are in existence at the testator’s death. If the period of distribution be postponed, all who can bring themselves within the description of the time appointed for the distribution, will be entitled, whether the time be a fixed date or contingent upon some future event. If the bequest be indefinite as to the time for the partition and the enjoyment of the legacy, the general rule will prevail, and the children *in esse*at the death of the testator, will take to the exclusion of the *post natal.*

If an estate be given to one for life, and after his death to his children, all the children will be entitled to take the *post natal*as well as the *ante natal.*The same result would follow, if an estate was given to one for life, with remainder to children of another person. The interposition of the life estate has the effect of postponing the partition, and thus lets in *all*the children equally. This, I mean to say, would be the construction, unless there were *343other manifestations of the testator’s intention expressed in the context, or arising by implication.

On behalf of the post *natal,*it is contended, that Jacob Patterson and Anthony Patterson had a life estate respectively in the property given to them by John Patterson’s will, which postponed the period of distribution to the death of the tenants for life, and. thus let in all the children, according to the doctrine so well settled. The argument is specious, but there are circumstances which forbid such a construction.

I lay no great stress on the fact, that the will in form gives the estate directly to the children, and then provides that the parents, (the testator’s brothers,) should “ have *the*use of their childrens’ portions or shares, during their natural lives, and after their death to their children forever.” Substantially, the will may be regarded as giving to Jacob and Anthony Patterson an estate for life, respectively, in their childrens’ portions, with remainder *to*their children.

“ The rest and remainder ” of the estate is given to the children of Jacob and Anthony Patterson. In what proportions do the children of the two brothers take ? Do they take *per-stirpes*or *per capita ?*In my opinion, the solution of this question will have an important bearing on the construction of the will as to the issue now before us. The testator declares it to be his will that the rest and remainder of his estate shall be *divided in equal shares*among his brother Jacob and Anthony Patterson’s lawful children; and that his brothers, Jacob and Anthony Patterson, have the use of their childrens’ portions or shares during their natural lives, and at their'death to their children forever.

I take it to be very clear, that the children of Jacob and Anthony Patterson took *per capita. “*Where a gift is to several persons, whether it be to the children of A. and B., or to the children of A. and the children of B., they take *per capita*and not *per Stirpes."'*2 Jarm. on Wills III.; *Weld*vs. *Bradbury,*2 Yern. 705; *Lady Lincoln*vs. *Pelham,*10 Yes. 166 ; *Barnes*vs. *Patch,*8 Yes. 604; *ex parte Leith,*1 Hill Ch. 153.

*344Jacob Patterson had eight children, and Anthony Patterson had three children at the death of the testator. He gaye to each of his brothers the use of his childrens’ *portion or share during his life.*He therefore designed a partition *per capita*among the children of his brothers who were living at his death. How otherwise could his brothers have the use of their childrens’ portions or shares during their lives ? An instant division was necessary to the enjoyment of their life estate or interest; for it could not be known what their childrens’ shares or portions were without such division. It is obvious also, that if a distribution then took place, only the existing children could participate in the division. The three children of Anthony Patterson were entitled *per capita*to three shares, and the eight children of Jacob Patterson to a corresponding number of shares. Upon this principle a partition was actually made of the property embraced in the residuary clause, among the children of Jacob and Anthony Patterson, by a decree of the Court of Equity in the year 1818 ; and Jacob and Anthony Patterson have, since that time, had the possession and enjoyment of their portions respectively.

It may be asked, why not *now*let in the *post natal*in a distribution of the part, which, in the partition already legally made, has been assigned to the children of Anthony Patterson ? Why not do this, as the period of their enjoyment, and for a division among themselves, has just arrived ? Why not let them in, as they can *now*bring themselves within the description of children ? I do not think that there is any thing to be inferred from the will, that the testator had in contemplation two periods of distribution as affecting the rights of the parties who wore to take. To let in the after-born children of Anthony Patterson, in the distribution of the three shares (out of eleven,) which the *ante natal*drew in the *per capita*division with the children of Jacob Patterson, would violate the manifest and declared intention of the testator. He said that the property should be equally divided amongst the children of Jacob and Anthony Patterson. Plow can it be an equal division, if after eight-elevenths have been taken *345off by tbe children of Jacob Patterson, the three-elevenths assigned in the division to the children of AnthonyPatterson, should again be subdivided into twelve shares, corresponding to the number of Anthony Patterson’s children. The shares which his three oldest children toolc in the division, they took as legatees under the description of children, and they took in their own right. If there is any thing certain in the will, it is that those who were to take at all were to take in equal shares. It seems to me but little short of an absurdity to say that when they, in pursuance of the terms of the will, and coming in under the description of “children,” took three shares out of eleven, which were then equal shares, and all they were entitled to receive, now they should be compelled to make partition with the after-born children of Anthony Patterson, who were not then in *esse,*and not entitled to draw any shares. If such a construction were to prevail, it is clear that the whole estate must be brought together, as well that which was assigned to Jacob Patterson’s children, as that which was assigned to Anthony Patterson’s children, and a division made equally among all. Jacob Patterson, however, has long since gone to the West, and carried with him his children and their property. It is not known to the Court whether he is living or dead. If living, he has still a life estate in his childrens’ portion of the testator’s estate. And were he now within the jurisdiction of the Court, the claim could *now*be made, (that is, in his life time,) for an equal division of all the testator’s residuary estate among all his nephews and nieces, the *post natal*as well as the *ante natal.*The different periods at which the life estates of Jacob and Anthony Patterson would terminate, is another argument to show that the testator did not contemplate an equal division among all the children of his two brothers, horn or to be born.

The result of my reflections is, a decided opinion, that only the three children of Anthony Patterson living at the death of John Patterson, are entitled to the legacy bequeathed to the children of Anthony Patterson by the residuary clause of John Patterson’s will; and it is so ordered and decreed.

*346And it is further ordered and decreed, that one part thereof be assigned to Margaret Crim, one third part to the distributees of Mary Harris, and one third part to George C. Patterson. As to the share of the latter, if the circumstances warrant the legal presumption of his death, there must be an administration as in any other case of death and intestacy. And the persons interested as his- distributees must proceed as they are advised. There is nothing in the present proceedings- that warrants any thing more to be done in reference to his share, than tó order it to be set apart to him.

The defendants appealed:

Because, under the provisions of John Patterson’s will, the defendants were entitled to share equally with the complainants in the residuary estate.

Gtlover, for appellants.

-, contra.

The opinion of the Court was delivered by

WaRdlaw, Ch.

In the construction of bequests to children, it is well- settled, that where a bequest is immediate to children in a class, children in existence at the death of the testator, and these exclusively, are entitled to take. But where the division of the fund among the legatees is deferred until a particular period, which takes place after the death of the testator, children born after the testator’s death may be entitled' under a bequest to children in a class. Thus, where legacies are given to the children of A, when a child or children attain a particular age, or to be divided amongst them at the death of A; any child who falls under the description at the time when the fund is to be divided, is entitled to a share, although not born until after testator’s death, and although born of a subsequent marriage. 2 Wms. Ex’rs. 797 ; *Gilmore*vs. *Severn,*1 Bro. C. C. 582 ; *Barrington*vs. *Tristram,*6 Ves. 345.

The bequest to be interpreted in the present case, is in the following words : *“*It is my will and desire, that the rest and re*347mainder of my estate be divided into equal shares among my brother Jacob Patterson and Anthony Patterson’s lawful children, and that my brothers, Jacob and Anthony, have the use of their childrens’ portion, or part, during their natural lives, and at their death to their children.” This'clause is drawn ungrammatically and inartificially, but the intention of the testator, which i» the great guide of interpretation, where no rule of. law is infringed, seems pretty plain. The testator has directed, in effect, that the residue of his estate be divided into two equal shares; that Jacob Patterson shall have one of these moieties for life, and that at his death his children shall take .the same among them absolutely ; and in like manner, that Anthony shall take the other moiety for life, and at his death his children shall take it among them absolutely. No dispute is made as to the accuracy of this interpretation in any particular, except as to the original division into two equal parts. It is argued for the plaintiffs, that the original division should be into as many parts as there were children of testator’s brothers at his death; and consequently that Jacob for life, and his children after him, should take eight shares, and Anthony take for life three shares only, distributable at his death among his three children in being at testator’s death, to the exclusion of the eight born subsequently. The argument has some support in the letter of the former portion of the clause, but it is opposed to the general scope of the provision, particularly that which postpones the enjoyment of the fund by the children, until the deaths of their fathers respectively. The employment of the terms “ childrens’ portion or part,” seems to contemplate that a moiety for each class of children was to remain an unseparated mass until the period of enjoyment arrived. The direction as to division of the residue into equal parts, is satisfied by understanding it as applicable to the brothers of the testator who were the immediate objects of his bounty; and no reasonable motive can be assigned for the supposed purpose of the testator, to exclude from the remainder any of the children of his brothers. In the case cited from Vesey, Lord Eldon remarks: “ The rule *348of the Court has gone upon an anxiety to provide for as many children as possible with convenience. Therefore any coming *in esse,*before a determinate share becomes distributable to any one, is included.”

In opposition to the construction indicated, it is further urged, that the construction given by the plaintiffs was adopted by the decree of this Court in 1818, in a suit between the tenants for life and the executor. But the partition then decreed is not obligatory upon the children who were no parties to the proceedings. *Bool*vs. *Mix,*17 Wend. 119.

The fact that Jacob Patterson received too much in the partition of 1818, in no wise diminishes the right of the defendants to equal distribution with the other children of Anthony in the partition received by him. Any claim to *recoup*from Jacob or his estate for the excess above one half received by him, is common to all the children of Anthony.

It is declared and adjudged, that all the children of Anthony Patterson, living at his death, are entitled to distribute amongst them the legacy enjoyed by the said Anthony for life, under the will of John Patterson: and it is ordered and decreed, that the accounts be taken accordingly. Costs to be paid out of the estate of Anthony Patterson. It is further ordered, and decreed, that the circuit decree be modified according to this opinion, and in other respects be affirmed.

JOHNSTON and DuNKiN, CC., concurred.

DabgAN, Ch.

I dissent. T see no reason whatever for changing or modifying the construction of the will given in the circuit *decree."*

*Decree modified.*