#### *Louis Vidal et al.*vs. *Simon Verdier.*

1. Testator devised and bequeathed as follows: “I give, devise, and bequeath, unto my beloved wife, S. B. the use of all and singular my estate, both real and personal, whatsoever, and wheresoever, *during her natural life;*and after the death of my beloved wife, S. B. I leave to my nephew, J. F. Y. the whole of my estate, both real and personal; but in case of the death of my nephew, J. F. V. without his leaving a lawfully begotten child, or children, then, and in that case, the whole, both real and personal, be divided amongst the rest of my nephews and nieces, share and share alike. And be it further understood, that in case of the death of my nephew, J. F. V. leaving a lawfully begotten child, or children, then, and in that case, the whole property, both real and personal, shall be divided between them, share and share alike; and in case of the death of one of the said children, without his or her leaving a lawfully begotten child or children, his or her *403portion shall be divided between the remaining child, or children; but in case of the death of each and every child, without their leaving behind them a lawfully begotten child, or children, then the estate, both real and personal, shall he divided among my other nephews and nieces, share and share alike, and if they he dead, their children.”

2. It was held,, that the words, “after the death of my beloved wife, S. B. I leave to my nephew, J. F. V., the whole of my estate, both real and personal,” amounted to an absolute gift in remainder, after the estate for life; that the subsequent provisions amounted only to *contingent*limitations over, on the death of the legatee, which were to be construed as referring to the death of the legatee, prior to the period when the remainder was to take effect in possession.

*Before*Dunkin, Ch., *at*Colleton, *February*Term, 1843,

Dunkin, Ch. By the last will and testament of Peter Bennett, late of Wadmalaw Island, deceased, he devised and bequeathed as follows, viz: “I give, devise and bequeath unto my beloved wife, Sarah Bennett, the use of all and singular my estate, both real and personal, whatsoever and wheresoever, *during her natural*life; and after the death of my beloved wife, Sarah Bennett, I leave to my nephew, James Felix Vidal, the whole of my estate, both real and personal; but in case of the death of my nephew, James Felix Vidal, without his leaving a lawfully begotten child, or children, then and in that; case, the whole, both real and personal, be divided among the rest of my nephews and nieces, share and share alike. And be it further understood, that in case of the death of my nephew, James Felix Vidal, leaving a lawfully begotten child, or children, then and in that case, the whole property, both real and personal, shall be divided between them, share and share alike; and in case of the death of one of said children, without his or her leaving a lawfully begotten child, or children, his or her portion shall be divided between the remaining child, or children; but in case of the death of each and every child, without their leaving behind them a lawfully begotten child, or children, then the estate, both real and personal, shall be divided among my other nieces and nephews, share and share alike, *and %f they be*dead, their children.” The widow, Sarah Bennett, *404and James Felix Vidal, were appointed executrix and executor of the will, both of whom qualified. Some time af-. terwards, the widow departed this life, leaving, surviving her, the said James Felix Vidal, who, on the 11th September, 1835, for valuable consideration, conveyed and assigned all his interest in the said estate, consisting of a plantation and fifty negroes, to the defendant, Simon Verifier. The defendant has since sold one of the negroes.

James Felix Vidal is without children, and unmarried. The bill is filed by the nephews and nieces of the testator, insisting, that in the event of the death of James F. Vidal, without leaving a lawfully begotten child, or children, they will be entitled to the estate under the will of Peter Bennett, deceased, and praying an injunction against the sale of the negroes, and that the defendant may be compelled to file an inventory or schedule, &c.

The whole question turns on the construction to be given to the terms, *“but in case of the death oí*my nephew, James Felix Vidal,” *<&c.*It is said by Mr. Roper, that these words, when used generally, in a clause divesting, or limiting over, a bequest, have acquired no precise or definite meaning. If the testator meant to refer to the period of the death of the legatee, *whenever it might take*place,— that is a *certain*event, and the word of *contingency*should be *rejected.*On the other hand, if the testator had in his mind some *contingency,*as, that the legatee was *then*dead, or *might die before him,*or *before*the *legacy was payable,*then the inaccuracy consisted in not specifying the *period*to which the *death*was to be referred. 1 Rop. Leg. 406. “Courts, therefore, endeavor to collect from the nature and.circumstances of the bequest, or the context of the will, in which sense it is most likely this doubtful and ambiguous expression was employed.” Some settled rules have, however, been established by the concurrence of authorities, or of decided eases. If a legacy be given to A, generally, “and in case of his death,” to B, these expressions, unexplained by the context, are confined to the event of the death of A, in the *lifetime*of the *P stator.*See Rop. Leg., and *Turner ms.*Moore, 6 Ves. 557. But if'the gift is not *immediate,*but in *remainder*after an estate for fife, with a bequest over, “in' case of the death of the remainderman, those expressions *405will be applied to the period when the remainder takes effect in possession, viz : the death of the person taking the preceding interest.” Rop. 409.

If the object of the testator, as appearing from the clause itself, or from the context, be to give an *absolute*estate to the legatee, with a *contingent*limitation over, upon the death of the legatee within, or before, a particular period, these rules of construction are applicable, and the court will not permit them to be controlled by parol testimony. *Loiofield*vs. Nloneham, 2 Stra. 1261. *Cambridge vs. Lous,*8 Ves. 13, 21.

On the other hand, if the object of the testator, as collected from the will, be not to give an *absolute*estate to the legatee, but that the legacy should go over upon his decease, *whenever it might happen,*the court will reject the words denoting contingency, as “in case of,” and substitute words of absolute signification, as “at,” or *“uponBil-*Imgsvs. *Sandan,*1 Bro. C. C. 393; the effect of which will be to give to the first taker only an estate *fior*life, and the absolute interest to the person in remainder. It is necessary, therefore, to inquire what was the object of the testator in regard to his nephew, James Felix Vidal, and to apply these principles, or rules of construction, according to the character of the legacy, or the category under which it should be classed. Was it the intention of the testator, that his nephew should, in no *event,*take more than a *life estate,*or was it his intention to vest in him the absolute estate, subject only to be defeated on the happening of a particular event, to wit, the death of the legatee, within a' period contemplated by the testator'? In the latter case the expressions, according to the rule stated, will be construed to apply to the event of the death of the legatee during the existence of the life estate, or before the period when the remainder was to take effect in possession — and, as the legatee has survived the life tenant, his estate, and consequently that of his vendee, is now perfect and indefeasible. In the other case, that is, supposing the intention be ascertained to give only a life estate to the nephew, with a limitation over on his death, *whenever it shall take place,*the court will give such construction as will carry this in*406.tention into effect, provided such intention can be accomplished without violating the rules of law.

The remark which the court would first make, in endeavoring to ascertain the intention of the testator, is, that, where he clearly proposes to give only a life estate, he knows very well the proper language to express his intention, and he uses it. To his widow he gives the use of his entire estate “during her natural life,” and after the death of his wife, he leaves to his nephew “the whole of my estate, both real and personal.” It is impossible to use terms more appropriate to fix the qualified estate of the wife, and the entire gift of his estate to his nephew, without any qualification, to be enjoyed at the expiration of the life interest.

If his purpose had been, that, in no event, the estate of his nephew should have been longer than that of his wife, it seems incomprehensible that he should have omitted to use the words which in the preceding bequest he had deemed it necessary to use in restricting the estate given to his wife. It was upon this principle that Lord Thur-low formed his judgment in *Billings vs. Sandan.*The will itself afforded intrinsic evidence that the testator knew how to distinguish between an absolute bequest, and the gift of a partial interest. So, in *Galhmd*vs. Leonard, 1 Svvanston, 161, the bequest was to the testator’s *toife for*life, with a direction to the trustees to divide the trust fund, after the death of his wife, between his daughters, Hannah and Ann, for their own use; and, “in case of the death of his daughters, or either of them, leaving a child, or children,” to apply a portion to their maintenance while minors, and on their attaining twenty-one, to distribute the capital among them *per*sierpes: remainder over, in the event of the death of the daughters leaving no issue which should attain twenty-one years of age. It was held, that the gift of the daughters was absolute, though defeasible in the event of their dying during the life-time of the testator’s widow.

There are other points of striking resemblance between the case of *Galland*vs. Leonard, and that before the court, besides the particular principle which it has been cited to illustrate. Both the daughters, in fact, died before the tes*407tator’s widow. It was not contended, that the expressions, “in case of the death of my daughters,” could be construed in that will to mean dying *at any*time, but the personal representatives of the daughters insisted they should be applied to the event of their death in the *life-.time*of the *testator;*but it was ruled, as is stated, that it should subsist in contingency during the life-time of the widow.

The court has already remarked, that, without more, the clause'quoted would be a complete and final disposition of the testator’s entire estate. A life estate is given to his widow, with a remainder in fee, or absolutely, to his nephew. The policy of the country is to unfetter estates'. But where an estate is given to a parent for life, and to his issue after him, the court, in order to effect the intention, and in favor of the issue, will lay hold of words to restrict the terms to those he may leave at the time of his death. But on a careful examination of this will, it seems difficult to suppose that the testator intended gifts *in succession,*viz: to his nephew for life, and afterwards to his children. The estate is given to the nephew without qualification. The testator does not go on to provide, that, *at*the death of the nephew, the estate shall pass to the children of the nephew, or even *that in case*of the death of the nephew, it shall pass to his children. On the contrary, he seems to have regarded himself as having fully disposed of his estate, *unless*a particular contingency should occur, which he next proceeds to contemplate. “But in *case*of the *death*of my nephew, James Felix Vidal, then, and in *that*case,” &c. This language, says the Master of the Rolls in *Webster*vs. *Hale,*8 Ves. 410, points more to *alternative*dispositions, than to gifts in succession, viz: to her for life, and afterwards to her children. The word, “but,” says he, is disjunctive, and adversative. It opposes one case to another, and implies that the children were to take in an event different from that of the parent. The reasoning is much stronger, when, after using this language, provision immediately follows, not that the estate should go to the children of the first taker, but to strangers to him.

Again, if the testator had intended only a life estate for his nephew, the natural, obvious course would have been, so soon as this was carried out, then to provide for the sue-*408cessor of the nepwhew’s children. The omission to do this, is a strong argument that the testator did not contemplate that they were to take in *succession*from their father. On the hypothesis that a life estate only was intended to the nephew, it is neither usual, nor natural, that he should *next*provide for the limitation to collateral. On the other hand, if the nephew should die during the continuance of the *widow’s life*estate, the proximate contingency would be, that he would die *without*children, and he proceeds first to provide for that contingency.

In case of the death of James Felix Vidal, without children, the whole estate, both real and personal, is “to be divided among the rest of his nephews and nieces, share and share alike.” There is not an apology for saying, that the estate of the other nephews and nieces is, in any manner, restricted or qualified. Why should the particular object of his bounty, his *haeresfactus,*be cut down to a life estate, when those who occupied, manifestly, a secondary place in his regard, take an absolute interest *'l*On the other hand, if the favorite nephew should not be alive at the period fixed for the enjoyment of his estate, “but, in case of the death of his nephew, without his leaving a lawfully begotten child, then, and in that case,” it was very natural, and in harmony with the previous provisions, that the whole estate should be divided among the rest of his nephews and neices standing on the same platform with James F. Vidal, and it is so accordingly provided.

But this contingency, although the most likely in the event of the death of James Felix, prior to that of the widow, might not occur. James might live to have children, and still die before the period arrived when he was to enjoy the estate. In that state of things, the testator would not have it left to implication, or doubtful interpretation, that the children should stand in the place of their parents; *“and be it farther*understood, *that in case of the death*of my nephew, James Felix Vidal, leaving a lawfully begotten child, or children, then, and *in that*case, the whole property, both real and personal, shall be divided between them, share and share alike.” All this language points to the conclusion, not that the children were to take in succession from the parent, but that they were to take *in case*the fa-*409tlier could not take — and, it may be added, that they were to take, in that event, the same estate which the father himself would have taken. The testator manifests no desire to perpetuate the estate through a long series of descendants. *He looks only to the period of his widoio’s death.*If his nephew, James Felix Vidal, is then alive, he gives him the whole estate absolutely. If James has died, without leaving a child, the estate is to be divided among his other nephews and neices. If James has died, leaving a child, or children, the estate is to be divided among them absolutely. On reviewing the whole will, although other and more precise language might have been used; it is hot very clear that the testator has not used the most natural expressions which unskilled men would employ in order to express their intentions.

When the testator declares, “after the death of my beloved wife, Sarah Bennett, I leave ’to my nephew James Felix Vidal, the whole of my estate, both real and personal,” it is an absolute gift in remainder after the estate for life. The subsequent provisions amount only to *contingent*limitations over, on the death of the legatee; and on the authorities cited, these expressions must be construed to refer to the death of the legatee prior to the peliod when the remainder takes effect in possession. It is an absolute estate, subject to defeasance on the happening of a particular event. This contingency has now become impossible, and in the judgment of the court, the complainants have no rights.

It is ordered and decreed; that the bill be dismissed;

The complainants appealed from the decree of his Hon- or Chancellor Dunkin, in the above case, and prayed that the same may be' reversed; for the following reasons .

1. Because, by the will Of Peter Bennett, although an absolute estate is given in remainder to his nephew, James Felix Vidal, it. is, nevertheless, subject to defeasance on his dying *at any time*either *before*or *after*the *death*of the tenant for life, leaving no lawfully begotten child, or children, alive.

2. Because there is nothing in the will which will Warrant the construction, that the contingency on which the *410limitation over to the complainants was intended to take effect must *happen before the period*appointed for the remainder to take effect in possession.

3. Because his Honor’s construction of the will is contrary to the meaning and intention of the testator.

*1 reville*& Petigru, for the appellants.

*Bailey*& Henderson, contra.

Curia, *per*Harper, Ch.

I have examined this case with all the attention in my power, and though not without some degree of doubt and hesitation, have come to the conclusion that the decree ought to be affirmed. There is some difficulty in reconciling the various cases on the subject. In the case of *Lowfield*vs. *Stoneham,*cited from 2 Strange, 1261, it seems to be taken for granted that if there be a devise to A, and in case of his death to B, this imports if A shall die without issue, in the life-time of the testator; and by parity of reason, indeed, in stronger reason — if it were to A, for life, at his death to B, and in case of B’s death to C, this must mean if B shall die in the life-time of the tenant for life. In *Billings*vs. Sandom, 1 Br. C. C. 393; *Nowland*vs. Nelligan, id. 488, and *Douglass*vs. Chalmer, 2 Ves. jr. 501, where the devise was to one, indefinitely, and in case of his death to another, this means his death at whatever time, and the limitation over is good. It struck me, at first, that these decisions rested on the effect of the words alone, without any qualification from circumstances. In *Billings*vs. Sandom, however, the bequest was £1000, to the defendant’s sister, to whom the testator gave the residue of his estate, *to be disposed of as she shall think proper;*and in *Douglass*vs. Chalmer, where the bequest was to the testatrix’s daughter, and in case of her death, to the children, equally to be divided, it appeared that the daughter was married to a husband who had children by a former marriage, and the effect of giving to the daughter, absolutely, would have been to vest the whole in the husband, and defeat the intention expressed in favor of the daughter’s own children; and in *Cambridge*vs. *Rous,*8 Ves. 12, where Sir William Grant expresses the opinion that the bequest to one, indefinitely, *411and in case of his death, to another, these words standing alone, import death in the life-time of the testator ; he sajs, that “in *Billings*vs. *Sandom,*the mode of giving the residue, contrasted with the mode of giving the particular legacy, afforded evidence that the one was given absolutely, and only a limited interest in the other;” and that in *Douglass*vs. *Chalmer,*“Lord Roslyn thought that from the whole will, he was able to collect an intention in favor of the children.” In that case, (*Cambridge*vs. Rous,) the bequest was to two sisters, and in case of the death of either, to devolve on the other. They were held to take an absolute estate, on the absurdity which would follow, that otherwise, if they left children, the property would be given away from their children. Similar was the decision in *Hinckley*vs. *Simmons,*4 Ves. 160, though it was a hard case, and defeating an intention in the highest degree probable. In *Turner*vs. *Moore,*6 Ves. 557, quoted by the Chancellor, there were circumstances on the face of the will, to put it out of doubt, that death in the lifetime of the tenant was- meant. In *Smart*vs. *Clark,*3 Cond. Eng. Ch. Rep. 437, the estate was given expressly for life, and the construction was upon the whole will. But all these cases do not touch the present. The cases, certainly, which come the nearest the present, are those of *Galland*vs. *Leonard,*1 Swanst. 161, cited by the Chancellor, and *DaCosta*vs. *Keir,*3 Cond. Eng. Ch. Rep. 435. The former of these cases was decided on the repugnancy of the bequest to the daughters, *“for their own use and benefit*absolutely,” with the bequest to their children in case of their death, leaving children, which would only be reconciled by the construction — if the daughters should die without issue during the life-time of the previous tenant for life.

The direction of the trustees to vest until the children should attain twenty-one, has no effect on the decision. So in *DaCosta*vs. *Keir,*the legacy was to Catharine Da-Costa, “for her own use and benefit, to be at her own disposal but, in case she should die, leaving children, to be equally divided between the children. There was, in that case, the further circumstance, that if the legatees over should die in the life-time of the wife, the wife was to take, absolutely. But the Master of the Rolls seems to have *412been clear, independently of this. So in the case before us. After a life estate to another, the testator gives to James Felix Vidal *the whole of his*estate, *both real and personal.*These words, though sometimes regarded only as descriptive of the subject matter of the gift, are commonly and appropriately used to signify the quantity of the estate; that it is absolute. They are not, perhaps, so strong as the words in *Galland*vs. *Leonard,*“to her use and benefit, absolutely but there are circumstances to strengthen them. The gift to James Felix Vidal is after a previous life estate. Where the testator intends a life estate, he expresses it distinctly. The whole form and order of expres-. sion are different from what they would have been, if the testator had intended a remainder to children who, next to, parents, must have been the principal objects of his care, The natural order of expression would have been, “to James Felix Vidal, for life, or at least, indefinitely; and, at his death, to his children; but if he should die, leaving up children, or if his children should die,” &c. I do not doubt but that in truth, and in fact, the testator did intend ap absolute estate to his nephew. Then, according to the cases quoted, this can only be rendered consistent with the direction to divide the estate among his children at his death, by restricting the death to the life-time of the ten-, ant for life. The limitation over, in the event of all the children dying without children, is a void and very unu~. sual limitation. ' We should rather give such construction as to render a will operative, than to defeat it; and by sup-, posing it to mean, if they should die without children in the life-time of the tenant for life, the disposition is render-! ed valid and sensible. If we suppose an absolute estate to his nephew, it is not possible to imagine a reason for the limitation over, in this event, of the children’s dying without children. On the construction contended for, if James Felix Vidal had died in the life-time of the widow, leaving children, and those children had died before the limitation of' the life estate, the devise to the other nephews and nieces must have failed, though on the happen-^ ing of the event Vidal were dead without children.

The case of *Nowlan*vs. *Nelligan,*has no application to. the present, though the devise was of the whole repj apd, *413personal estate. There was no limitation over, on the event of the daughter’s death. The testator expresses his confidence that his wife will see his daughter comfortably-provided for out of the property, so that it was impossible to understand the words “in case of death happening to my said wife,” to mean death in the testator’s life-time. Nothing would be plainer than that the testator did not intend to leave his daughters entirely unprovided for. Sir William Grant, in *Cambridge*vs. *Rous,*says, in reference to this case, “it was evident that some benefit was intended for the daughter, but it was doubtful, as the interest was not clearly expressed, whether it could be made effectual by imposing a trust upon the will. Some *benefit,*however, was evidently intended for the daughter, and none could be assured to her except by limiting her mother to an interest for life.” The decree is affirmed.

Johnson and J)unkiiv, Chancellors, concurred.