#### *Mary A. R. Lowry, adm’x. of Wm. Brown, deceased,*vs. *Lewis O’Bryan et al.*

Bequest to testator’s four sons “to them and their heirs forever; if either of my sons should die without issue, Ms part shall he equally divided between, the survivors:” G. was the last surviving son and he died without issue — W., another son, having died before him, leaving issue: *Held,*that G.’s estate was a vested fee, defeasible in the event that he died without issue, leaving one or more of his brothers surviving him, and, therefore, in the events wMch had happened, W. had no interest, under the will, in G.’s share, wMehMs administratrix;-could claim.

*Before*Dunkin, Ch. *at Colleton, February,*1851.

Dunkin, Ch. Robert Brown, the father of complainant’s intestate, died in 1805. His will has the following residuary clause, *263viz : “ Item — I give and bequeath unto my loving sons, William Brown, George Brown, Bobert Brown, and Charles Brown, all the remainder part of my estate, to be equally divided between them, share and share alike, to them and their heirs forever; and I also will and desire that, if either of my sons should die without issue, his part shall be equally divided between the survivors.” The estate was equally divided between the four sons. In 1811, George died without issue, and his share was equally divided between the surviving brothers. So in 1818, Bobert died without issue, and his share was equally divided between the surviving brothers, William and Charles. In 18l5, William, the former husband of the complainant, died, leaving two children, who also died in infancy. Charles Brown, the fourth son of the testator, survived until 1848, and then died without issue, having bequeathed his estate to the children of the defendant, Lewis O’Bryan, jun., whom he appointed executor of his will. As the adminis-tratrix of Wm. Brown, deceased, the complainant can have no right which did not belong to her intestate. His interest in the share allotted to his brother Charles, depended on two contingencies, to wit: That he should die without issue, and that he, William, should survive him. But William was in his grave more than thirty years before the death of Charles, and consequently could take nothing in the character of survivor. This is an end of complainant’s claim. But as the testator, Bobert Brown, manifestly intended to part with his whole estate; and as Charles was the last survivor, so that no one could take on the happening of the contingency, the Court is of opinion that his interest, under his father’s will, became absolute, and might well pass under the bequest to the defendants. It is ordered and decreed that the bill be dismissed.

The complainant appealed, on the grounds:

1. Because she submits, that on the death of William Brown *leaving issue,*his interest in the share of Charles Brown became transmissable to his representatives.

2. Because, though she might not be able to sustain her bill in *264the character of administratrix *solely, jet,*as she alleges herself in her bill to be the sole surviving distributee of William Brown, and she is admitted to be so, her bill for the cause first stated in the decree ought not to be dismissed.

3. Because the decree is otherwise contrary to law and equity.

*Rhett, Tracy,*for appellant.

*Henderson,*contra.

The opinion of the Court was delivered by

Dunkin, Ch.

By the will of Robert Brown, it is quite clear that each of his four sons took, not merely a life interest, but an absolute estate in the personalty bequeathed to them. It is to he equally divided between them, “ share and share alike, to them and their heirs forever.” But this absolute estate was defeasible on a contingency, “ if either of my sons should die without issue, his part shall be equally divided between the survivors.” Charles Brown, defendant’s testator, was the last surviving child of his father, Robert Brown, The complainant’s intestate had been dead thirty years before his brother Charles died. Complainant’s intestate loft issue, and his absolute interest in the share bequeathed to him was, therefore, indefeasible. But it is insisted, on the part of the appellant, that her intestate had an interest in Charles’s share, which was transmissible to his representatives, and that, on the death of Charles without issue, she, as administratrix of Wm. Brown, deceased, became entitled to the estate, although her intestate died before his brother.

If the position assumed by the complainant be correct, it is obviously fatal to her claim. The gift to the first taker is in the most ample terms, “ to him and his heirs forever, but if he should die without issue, his part shall be equally divided between the survivors.” The only ground upon which this limitation overean be sustained, as demonstrated in *Massey*vs. *Hudson,*2 Mer. 130, and *Postell*vs. *Postell,*1 Bail. Eq. 390, is that “ it was intended that the survivor was meant individually and personally to enjoy the legacy, and not merely to take a vested interest, which might, *265or might not, be accompanied by actual possession” — otherwise, although there should be no such failure of issue as would enable him personally to take, yet his representatives would be entitled to claim in his right whenever the failure of issue should happen, which might be fifty years after the death of the first taker. “ Unless the term survivor has the effect of limiting the generality of the expression, dying without issuein other words, if it is not a personal, but a *transmissible,*interest which is intended, there is no ground to support the limitation over, and the interest of the legatee would be absolute and indefeasible. It may be further remarked, that, if the limitation over were not too remote, but might take *effect*on the failure of issue at any time, there would be more legitimate ground for argument that the defendant, representing the last sinviving brother, was entitled to the share of William Brown, the complainant’s intestate, than that the complainant would take Charles’s share. Eor although William died leaving issue, yet the issue became extinct in the life time of Charles, who was then the last survivor. But upon the principle and the authorities before stated, William having left issue at the time of his death, his estate was indefeasible, although the issue might afterwards fail. It is an entire misapprehension to suppose that the vesting of the estate depended upon the legatee having or leaving issue. It vested immediately on the death of Robert Brown, the original testator, and was defeasible only upon the happening of a contingency. If that event occurred, it was limited over to certain persons. None are entitled but those who can bring themselves within the description at the happening of the contingency. Neither the complainant, nor any one else, answered the description at the death of Charles Brown, who was the last surviving brother. Under these circumstances, it was held by the Chancellor, that, as it was the manifest intention of the testator to part with his whole estate, and as at the death of Charles Brown there was no one capable of taking under the description of survivor, his estate was absolute, and such conclusion has the sanction of *Powell*vs. *Brown,*1 Bail. 100, and the au-*266tborities there cited. But this is an unimportant inquiry. If tbo result were otherwise, and it became a case of intestacy, none could claim but the legal representative of the original testator, and that character is not sustained by the complainant.

The appeal is dismissed.

JOHNSTON, Dargak and Wardlaw, CC. concurred.

*Appeal dismissed.*