#### Thomas C. Mathis & Wife, et al., *vs.*Charles Hammond, ex'or., et al.

An assigment, for good consideration, (natural love and affection,) by unsealed instrument, of the assignor’s distributive share of an intestate’s estate, *held*valid — the assignor having acquired possession under the assignment.

Testator made his will by which he devised and bequeathed one-fifth part of his estate to his son G-. absolutely. After similar devises and bequests to his other children, he declared “ if any of my children die before the age of twenty-one and without issue, then his legacy shall revert,” &c., “ and be equally divided among my remaining children and their heirs.” G. arrived at age, married, and then died, in the life time of the testator, leaving issue, a son, who survived the testator. *Held,*that the son of G. was entitled to the legacy to his father under the Act of 1789, § 9, (5 Stat.,107,) and that he took absolutely and without condition or limitation.

The question reserved, whether conditions annexed to a legacy to a child, remain annexed when the issue of such child become entitled, by substitution, under the Act: where the condition ip personal, it would seem that it does not remain, in other cases it may.

BEFORE DUNKIN, OH., AT EDGEFIELD, JUNE SITTINGS, 1856.

Dunkin, Ch. From tbe decree made in tbis cause, June 1855, an appeal was taken by both, parties. The appeal on the part of the plaintiffs was dismissed. The defendants’ three grounds of appeal *were*— First, That Robert H. Anderson took an absolute *estate*— Second, If he took subject to the limitation of the will, still the plaintiffs under the will of Allen Anderson, Senior, cannot take under the terms *“*children and their *heirs.”*— Third, The deed from Mrs. Mary Anderson to Allen Anderson, Junior, is operative, certainly as to the personalty, and in equity as to the realty. The Court of Ap*138peals, in commenting upon these grounds, remark — “ The first ground of appeal presents a noyel question wbicb was not argued on the Circuit nor before us; and the second presents a question upon which there is a difference of opinion at present amongst us. The third ground probably may be found conclusive of the controversy of the parties concerning the estate of Eobert H. Anderson, if Allen Anderson, under the ‘unsealed transfer of his mother, obtained actual possession of Bobert’s estate from her or from his guardian: but the facts are too obscure,” &e. “ As there is difference of opinion among ,us on the case now presented, and as the Chancellor reserved •several points upon the exceptions for future judgment and Recommitted the report, we have concluded to remand the case to the Circuit on the second point decided by the Chancellor and involved in the defendants grounds of appeal for further inquiry before the Commissioner, concerning the •facts, and decision by the Chancellor who may next hear the ■case; and it is ordered and decreed accordingly.”

The will of Allen Anderson, Senior, was executed in 1828, but the testator survived until 1842. At the date of his will the testator’s family consisted of his wife, three sons, George, James, and Allen, and two grand-children, the daughters of a pre-deceased daughter, (Mrs. Quarles). The devise to his Son George is in the following terms: “ Item, I give and devise to my son, George Anderson, one-fifth part of my real .and personal estate, viz: land, negroes, with their future issue and increase, horses, cattle, hogs, implements of husbandry, and every other thing which may constitute a part of .my estateat the time of my death, to him, and his heirs forever.” The devises to each of his other sons, James, and Allen, are in terms precisely the same as that to George. Special provision • is then made for testator’s “ two grand-daughters, Mary and Susannah. Quarles,” then in their minority, and for the death of either, or of both of said grand-daughters under age, without issue. It is subsequently provided as fob *139lows: *“*Item, My will is that,'if any of my children die before tbe age of twenty-one, and without lawful issue, then his legacy shall revert to the common stock, and be equally divided among my remaining children and their heirs.”

G-eorge Anderson, testator’s son, attained the age of twenty-one years, was married, survived his marriage four or five .years, and then died, in the lifetime of the testator, (probably about 1837,) leaving one child, Robert H. Anderson. After the decease of Allen Anderson, Senior, in 1842, a partition of his estate was made in conformity with the provisions of his will. The real estate not specifically devised to the widow, was sold for division. George McKie testified that, as the guardian of Robert H. Anderson, he, in 1844, received from the executor of Allen Anderson, Senior, the negroes and the cash proceeds of the realty and of some personalty to which his ward was entitled, and gave his receipt therefor. There were five negroes allotted to his ward.

In August, 1849, Robert H. Anderson died, being still a minor and without issue. His next of kin were his grandmother, Mrs. Mary Anderson, widow of the testator, and Mrs. Covington, his maternal grandmother.

On 16 November, 1849, Mary Anderson executed the following instrument, viz:

*South*Carolina, *Edgefield District:*

Know all men by these presents that I, Mary Anderson, of the District and State aforesaid, for and in consideration of the natural love and affection which I have to my son, Allen Anderson, of the same State and District, have released and conveyed, and by these presents, do release and convey unto the said Allen Anderson all my right, claim and interest in or to the estate of my deceased grandson, Robert H. Anderson, late of said District, of whom George McKie was guardian, whether real or personal, to have and to hold all my said right, claim or interest in the same to the said Allen, his *140beirs and assigns for ever, and I do hereby bind myself, my beirs, executors and administrators, to warrant and defend all and singular my said right, claim and interest in the said estate, to the said Allen, his heirs, executors, administrators and assigns against me and all others claiming under me. Witness my hand and seal, this the sixteenth day of November, eighteen hundred and forty-nine, and in the seventy-fourth year of American Independence.

her MARY M ANDERSON. marie.

Signed, sealed and delivered in the presence of

Joel Curry,

H. A. Shaw.

The above instrument was proved before a magistrate by one of the subscribing witnesses ; and the *bona fides*and validity of the transaction was subsequently established at a previous stage of this cause.

It was proved also by George McKde that, besides the five negroes and about three thousand dollars in cash, which he had received from the executor of Allen Anderson, Senior, he had also, as guardian of Robert H. Anderson, received in 1887, about ten thousand dollars, to which his ward was entitled from John B. Covington, in full of his ward’s interest in the estate of his father or maternal relations. He testified that, “ after the death of his ward, he delivered and paid over to Allen Anderson, Junior, that part of the estate of his ward to which Mary Anderson was entitled as next of kin to Robert H. Anderson. Witness did this at Mary Anderson’s request. Witness went to pay it to her, and she told him to pay it to Allen. Allen was present. The negroes were hired to Allen Anderson, Junior, and were in his possession at the death of Robert H. Anderson. They remained in his possession until his death, and after his death they went as he thinks, *141into tbe possession of bis executor, Charles Hammond. By advice of the late Mr. Griffin, the guardian (McKie) upon paying over the estate of his ward as above stated, took a joint receipt from Mary Anderson and Allen Anderson, Junior. The negroes had been appraised, and their value was included in the receipt which was produced by the witness. It is dated 8th Eebruary, 1850, for the sum of " thirteen thousand and fifty-nine dollars and eighty-six cents, in full of one half of the whole estate and property of Robert H. Anderson, deceased, ascertained by a full and final settlement that day made in the Commissioner’s Office of Edgefield District,” and is signed by Mary Anderson and Allen Anderson, in presence of Owen E. Sullivan.

These facts as intimated in the judgment of the Court of Appeals, *“*are conclusive of the controversy of the parties concerning the estate of Robert H. Anderson — so far as received from the guardian.” The estate in hands of his guardian was altogether personalty — could ¿have been well transferred by delivery without writing, but was effectually assigned to Allen Anderson by the instrument of 16th November, 1849, whether with or without a seal, and was consummated by the payment of the fund and delivery of the property to the assignee by direction of the assignor.

But it is insisted- on the part of the plaintiffs that, Robert H. Anderson having died under age, and without issue, so much of his estate as was derived from his grandfather, Allen Anderson, Senior, became, thereupon, divisible “ among the testator’s, (Allen Anderson,) remaining children and their heirs.” That the plaintiffs are within this description. If Robert H. Anderson took any part of his grandfather’s estate, it was not because he was the declared object of the testator’s bounty, or that he was included as a beneficiary under any provision of the will. To his father, George Anderson, an estate had been given in terms of the most ample signification, "to him and his heirs forever.” But *142George Anderson died in tbe testator’s lifetime, and according to familiar principles, tbe legacy to bis son would have failed. To provide against tbe consequences of- ibis lapse in a particular case, it is declared by tbe ninth section of tbe Act of 1789, (5 Coop. 107,) that “if any child shall die in tbe lifetime of tbe father or mother, leaving issue, any legacy given in tbe last will of such father or mother, shall go to such issue, unless such deceased child was equally portioned with the other children by the father or mother when living.” Under this provision of the law Eobert H. Anderson received the legacy to which his father would have been entitled if he had survived the testator. “ He did not take under the will, but by law.” Some half century after the enactment of 1789, this subject came under the consideration of the British Parliament; and by 1st Viet. c. 26, s. 38, it is declared that, in such case, the devise or bequest to the parent, “ shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator.” According to the construction given to this statute, the legacy to the parent passed not to his issue necessarily, but as his general estate, “ and was disposable by his will, notwithstanding his death before the death of the ancestor.” *Johnson*vs. *Johnson,*3 Hare, 157. But this construction is upon the particular language of the English statute. The general purposes of the legislation were the same. In the Stat. 1st Viet, the object was effectually accomplished by declaring that in such case, *no lapse should take place,*notwithstanding the death of the legatee in the lifetime of the testator. The legacy consequently passed to the personal representative of the deceased legatee ; encumbered, of course, with all the charges and limitations of the will “ as if the death of the legatee had' happened immediately *after*the death of the testator.” So by the Act of 1789, the purpose is accomplished by declaring, that in such case, “ any legacy given in the last will of such father or mother, shall go to such issue.” It is the. *143*legacy given*to tbe *parent*by *the will,*to which, the child thus becomes entitled *hy law.*If it be an absolute gift, the issue takes an absolute estate. If the devise to the parent be an estate for years, the issue takes no more. If the gift to the parent be for life, with a valid remainder to a third person, the issue takes nothing. If an absolute estate (as in this instance) be given to the parent, but defeasible on a particular contingency, the issue takes the legacy just as the parent would have taken it “if he had died immediately after the testator,” and defeasible only upon the particular contingency declared in the will. To adopt any different construction would embark the Court on a wide sea of speculation as to what the testator probably would have done had he foreseen the event (which he did not contemplate) and attempted to provide for it. It would be to make a new will for the testator and engraft an additional provision on the statute. The plaintiffs’ exception submits, that “ the portion was taken by Robert upon the conditions and limitations to which it would have been subject in the hands of his father, George Anderson, if he had survived the testator.” This language and the principle literally involved in it, appear to the Court to present the true construction of the statute. The object is to conform strictly to the will of the testator consistently with avoiding the consequences of a lapse. The legacy to George is, in terms'absolute. It is this legacy which by the operation of the statute, goes to his issue. But the will declares this legacy defeasible in the event that George dies under age and without issue. That contingency never occurred, and never could occur, at the period when the legacy took effect. The argument proposes to defeat the legacy to George, because Robert died under age and without issue — a condition of defeasance, not found in the will of the testator, and at 'variance with what is there provided. But, as has been already suggested, neither the Act of 1789, nor the English Statute of 1838, purport to make a will for the testator, but *144only to prevent in some measure, and under certain circumstances, tbe entire defeat of bis intention in consequence of a rule of law as applicable to an unforeseen event. Under one Statute tbe issue is made tbe recipient of tbe bounty intended for tbe parent. Under tbe other statute tbe *existence of issue saves*tbe *lapse,*and tbe estate passes as if tbe legatee, bad survived tbe testator. But neither statute proposes to go further or to do more. Tbe character of tbe bequest is not changed, •nor any charge, limitation or condition, as prescribed by tbe will, in any manner affected; nor any new limitation or condition, affixed thereto. *The legacy*stands as declared by tbe will. In England *they)ersonal representative*of tbe legatee tabes tbe legacy as bis testator or intestate would have taken. In South Carolina tbe *issue*takes as tbe personal representative takes under tbe English statute. George Anderson, tbe legatee, not having died under age or without issue, tbe legacy under bis father’s will, and which tbe law cast upon bis son, Robert H. Anderson, was in tbe bands of tbe latter, an absolute and indefeasible estate.

It remains to consider tbe plaintiffs’ fourth and fifth exceptions in connexion with tbe clause of Allen Anderson’s will which makes provision for bis widow. Tbe bouse and plantation on which testator resided, containing one hundred acres, together with one-fifth of all bis personalty, including debts, &c., are devised and bequeathed to bis widow during her natural life, and after her death to be equally divided among testator’s children and their legal representatives. Under tbe view heretofore taken, and according to tbe authority of *Southworih*vs. *Sebring,*2 Hill, 587, tbe interest of Robert H. Anderson in tbe personal estate thus bequeathed, so far as tbe same subsequently vested in bis grandmother, Mary Anderson, passed to her assignee, Allen Anderson, under tbe instrument of 16th November, 1849, although tbe same was without seal, and though possession of tbe property may not have been transferred. It appears *145to tbe Court unnecessary to consider tbe effect of that instrument in reference to tbe interest of Robert H. Anderson in tbe real estate for tbe reason about to be stated.

Assuming that tbe interest of Mary Anderson in tbe real estate of Robert, was well conveyed to ber son Allen, by tbe instrument of November, 1849, still tbe fifth exception of tbe plaintiffs is well taken, to wit: that tbe title of Allen accrued after tbe execution of bis will of September, 1844, and as to sucb real estate, Allen died intestate. By tbe Act of 1797, one-tbird of bis estate in that event vested in bis mother, one-tbird in tbe plaintiffs, as tbe children of a deceased sister, and tbe remaining third in tbe defendants, tbe children of bis deceased brother, James Anderson. On tbe decease of Mary Anderson, ber third vested in tbe plaintiffs and defendants in equal moieties. Tbe result is tbe same, if tbe deed of November, 1849, be held inoperative for tbe transfer of real estate. Tbe report of tbe Commissioner must therefore be reformed.

It was suggested at tbe bearing that tbe plaintiffs’ first and second exceptions bad been reserved for consideration by tbe decree of 1855. Tbe cause was “remanded to tbe Circuit on tbe second point decided by tbe Chancellor and involved in tbe defendants’ grounds of appeal.” This would not embrace a consideration of those exceptions of tbe plaintiffs. But it may not be improper to direct that tbe Commissioner should report on those exceptions. This may be due to tbe officer, and will certainly facilitate tbe judgment of tbe Court. It is ordered and decreed accordingly.

Tbe plaintiffs appealed upon tbe grounds:

1. As to tbe paper subscribed by Mary Anderson, bearing date 16th November, 1849, tbe plaintiffs will endeavor to maintain, that at tbe time of its execution there was no delivery or transfer of possession made to Allen Anderson, Jun’r., of tbe negro slaves or moneys that she received as ber portion of ber grandson, Robert H. Anderson’s estate — that *146there was no sufficient evidence that these slaves or moneys ever afterwards came to the possession of Allen Anderson Jun’r., as assignee or donee under the said instrument. That a voluntary transfer of property in personalty as distinguished from the subject of such property, cannot be effectual *inter vivos,*except by deed. That Mary Anderson’s moiety of Robert EL Anderson’s portion in remainder of the estate held by her for life under her husband’s will, (assuming Robert to have taken absolutely,) was an interest lying purely in grant, and incapable of being transferred except by deed or will. That the “ unsealed transfer ” referred to, was therefore ineffectual to transmit to Allen Anderson, Jun’r., his mother’s moiety of the estate of Robert IE. Anderson, dec’d., or any part thereof, and that the circuit decree is erroneous in holding otherwise.

.' 2. The plaintiffs will maintain that by the operation of the ninth Section of the Act of 1789, Robert H. Anderson took such and the same interest under the will of his grandfather, Allen Anderson, Sen’r., as he would have taken, had he been substituted in the stead of his father, George Anderson, as a legatee under that will, and it is maintained that the circuit decree is erroneous in holding otherwise.

3. The plaintiffs respectfully submit that the circuit decree of 1855, reserved the questions presented by the 1st, 2nd and 7th of the plaintiffs’ exceptions to the Commissioner’s report, for future consideration and adjudication by the Circuit Court, and not by the Chancellor who pronounced that decree. That the decree of the Appeal Court of December, 1855, did not withhold from the Circuit Court the consideration of the exception referred to, or any of them, and the plaintiffs give notice that they will move that the case be remanded to the Circuit Court to be heard as to the questions presented by those exceptions.

*JBausJcett, Carroll,*for appellants.

*Spann, Bonham,*contra.

*147Tbe opinion of tbe Conrt was delivered by

Johnston, Ch.

In tbe decree it is beld tbat tbe instrument executed by Mrs. Anderson in November 1849, after Robert H. Anderson’s death, was sufficient to convey ber interest in bis estate. In tbis opinion I concur; because possession was taken by tbe grantee, under tbe instrument, of wbicb be should not be deprived. Tbe instrument, regarded as an assignment, or covenant, should not be disturbed, after possession given.

It appears to me, also, tbat tbe decree is not erroneous on tbe subject of tbe 9th clause of tbe statute of 1789. Tbe object of tbe statute may be better understood if we consider what a testator would naturally do if one of bis children to whom be bad given a legacy, should happen to die leaving a child. Tbe Legislature acting upon tbe supposition that it would be natural for him to give tbe legacy to tbe child, has declared tbat it shall go to him, in default of such direction. Tbis is tbe spirit and scope of tbe Act.

It may be well, however, to guard against misconceptions -that may possibly arise. I am .not willing to conclude tbe point here, either tbat tbe fulfilment or non-fulfilment, by George, of tbe conditions annexed in tbis will to bis legacy, should have any influence in determining tbe right of bis son to receive it. Those conditions were of a merely personal character, confined to George, individually. Such conditions, I apprehend, were extinguished at bis death, when be lost all apparent right to tbe legacy. If they bad never been fulfilled by him, they bad by tbat event become impossible; and, as tbe interests of tbe estate were in no wise affected by them, tbe new legatee might take (not through him but by substitution) without being obliged to fulfil them in bis own person. It might be otherwise, if tbe conditions bad been of a different character; as for example, if tbe legacy bad been given to George upon condition tbat be should pay a certain debt of tbe testator, or release bis estate from some claim or *148incumbrance. In such case, I suppose tbe legacy given to him should not go to bis child without conferring upon the estate of the testator the bénefít for which he had stipulated by annexing it as a condition to the legacy.

It is ordered that the appeal be dismissed, and the decree affirmed.

DuítkiN, DargAN and Wardlaw, CC., concurred.

*Appeal dismissed.*