#### *Thomas Anderson and wife and*others, vs. *J. H. Smoot and wife and others.*

1. Testator bequeathed as follows: “I give to my wife, A. M., in lieu of her dower, the use of one-fourth part of my personal estate, during her life, and, at her death, to return to my estate, with the increase of the negroes, and the whole to be equally divided among my surviving children, or the heim of their bodies, share and share alike.”

2. It was *held,*that this provision was intended for such of the children as might survive the tenant for life, and for the heirs of the body (or children) of those who might not have so survived.

3. This construction gives full effect to the term “ or” which it was held must be used in its natural sense.

4. When a distribution is directed among his surviving children, or the heirs of their bodies, it is equivalent to saying, among my children who may survive, or the heirs of the bodies of those who may not survive ; for no children could, at that time, have heirs, except those who had not survived.

5. In the last clause of his will, testator declares: “All the remaining parts of my personal estate, I leave to be equally divided between my children, share and share alike, as soon as they shall arrive at the age of twenty one years, or otherwise, at the day of marriage, which shall first commence ; but, if either of my children should die before they are of age, *or have law*
      *313
      *ful issue to survive*them, then, and in that case, their share, so dying, to *return*to my surviving children, share and share alike.” This clause *held*to aid the construction that the testator intended a right, by survivorship, to attach only in the event that a deceased child had left no lawful issue to survive him; as also, to aid the construction which the parties themselves adopted in making partition.

*Before*Harper, Ch., *at Sumter, June Term,*1843, from •whose circuit decree the facts will fully appear.

Harper, Ch. By his will, executed on the 28th of August, 1804, Manassah Michau, who died in 1805, bequeathed as follows : “ I give to my wife, Ann Michau, in lieu of her dower, the use of one-fourth part of my personal estate, during her life, and at her death to return to my estate, with the increase of the negroes, and the whole to be equally divided among my surviving children, or the heirs of their bodies, share and share alike.” The testator, at his death, in 1805, left surviving him, his wife and five children. The widow received possession of the portion of the estate devised to her by the aforesaid clause, and retained possession thereof until her death, in 1833 or 4. Of the children of the testator, three died in the life time of the widow tenant for life; one of them, Manassah, having had children, but survived them ; of the other two, one, Jacob, left three children, who are three of the complainants, and the other, Isaac, one child, the complainant, Ann E. Anderson. Of the children of testator, who survived their father, one, Mary M. Michau, married the defendant, Caleb Rembert, and the other, the defendant, Josiah H. Smoot. After the death of the tenant for life, (who had marrid one Rembert,) the defendant, Josiah H. Smoot, took out letters of administration on her estate, and also administered with the will annexed on the estate of the testator, Manassah Michau. With the consent, as it is stated, of the defendants, Rembert and wife, and Smoot and wife, certain gentlemen were appointed to make partition of the slaves given by the testator to his wife for life, with their increase, which was large. They did divide them accordingly, allotting one-fourth part to the three complainants, then infant children of Jacob Michau, one-fourth part to the complainant, Ann E. Anderson, then Ann E. Michau, an in*314fant, one-fourth part to the defendants, Rembert and wife, and one-fourth part to the defendants, Smoot and wife. It is admitted that the guardian of the infant, Ann E. Michau, was present at the division, but denied that any guardian of the infant children of Jacob Michau was present. The defendants deny that the negroes allotted to the complainants respectively, were ever delivered to them, the said defendant, Josiah H. Smoot, refusing to deliver them, and requiring a bond to save him harmless in the premises from the guardian of the said Ann E , and also, from some person legally authorized to act for the children of Jacob Michau.

The defendants state that they concurred in the division, supposing that the complainants were entitled, as they claim to be, to one half of the negroes, but that upon after-wards consulting counsel, they were advised, that under the clause of the will in question, they alone were entitled to the whole of the slaves; and that express notice was given to the guardian of Ann E. Michau, and the other parties, that they were not to receive any portion of the said slaves, unless recovered by law. The defendants thereupon made a division between themselves, of the ne-groes which had been allotted to the complainants; the names of the slaves received by each, being set forth in these answers. The bill prays for the delivery of the slaves, to which complainants are entitled, under the will of Manassah Michau, and by virtue of the partition mentioned, with their increase, and account of their hire.

The defendant, Smoot, by his answer, states that he has sold or given away several of the slaves claimed by the complainants. The defendant Rembert states, that being about to depart for Alabama, and supposing it possible that by construction of law the children of Jacob and of Isaac Michau might be entitled to a portion of the slaves, he paid to the guardian of the children of Jacob, nineteen hundred dollars, and to the guardian of Ann E. Michau, fifteen hundred dollars, to be applied to the satisfaction of their demands against him, in case they should recover, but not intended to be reclaimed if they did not. He prays that these sums may be refunded.

*315If the whole of the children of Jacob and Isaac Michau had been of age at the time of the partition, and the slaves allotted to them respectively had been put into their possession and received by them, and this were a bill by the defendants for the recovery of these slaves, on what ground would they sustain such bill *1*It was competent for them to put their own construction on the will. By their own act, they would have acknowledged the legal title to be in the parties to whom the slaves had been allotted. If it had been intended merely as a gratuity, once executed by the delivery of possession, it could no longer be recalled. The only ground on which such bill could have been attempted to be sustained, would have been that the defendants had acted under a mistake of law. But how could I infer such mistake *'l*The will was before them, and they saw that the property was limited to *surviving*children. It might occur to the most common understanding, that the question might be raised as to which the survivorship should be held to relate. What right should I have to conclude any thing else, but that knowing that such question might be made, they chose to acquiesce in the construction which appeared to them, if not the most obvious, certainly the most reasonable and equitable *1*It is not like the case of *Laurence*vs. Beaubien, 2 Bail. In that case it was plain that the parties intended to settle their contract according to law. For this purpose they mutually submitted their case to a lawyer, and were palpably misadvised as to the law. The source of the mistake was obvious. The distinction is made in the case between ignorance and mistake. Mistake is matter of evidence, and like every other matter of fact, must be proved by the parties alleging it. But if a party, from the spontaneous suggestion of his own mind, take up an erroneous impression of law, or of fact, as in the case of *Heilborn*vs. *Bissell*& *Warner,*1 Bail. Eq. 430, how is it possible to offer evidence of the operation of his mind *7*That he has done an act unfavorable to his own interest, is not regarded as sufficient. Men do sometimes perform kind or generous actions. The only evidence for the defendants, supposing the true construction of the will to be as now contended for by them, is, that having done an act to their own prejudice, they en*316deavored to correct the error and reclaim their rights, upon being better advised. But apart from the fact, that parties are not to make evidence for themselves, it is not uncommon to the infirmities of human nature, that one -who, in pursuance of a generous impulse, has done a liberal act, should regret it and wish to recall it upon cooler reflection. There is no evidence of their having been advised by counsel. But I am of opinion, that in order to defend themselves, the defendants must make out the same case as if they had brought a bill to set aside the partition.' It is supposed that the legal title of complainants to the slaves allotted to them, never attached, because the defendants say they were never delivered. I am of opinion, that they were as fully delivered as if they had been taken possession of by themselves or their guardians. Specific slaves were allotted to each of the defendants, and to the complainants, according to their rights. Those allotted to the defendants, Rembert and wife, were delivered to them. Defendant, Smoot, took possession of those allotted to the complainants, as being their property, and in their right. They may properly be regarded as delivered to him by the commissioners; certainly he no longer held them as administrator of the testator or of his widow,, any more than the negroes delivered to him as his own. The very offer to deliver them to the guardian of complainants, upon receiving an indemnity, was an admission that he held the slaves as their property; it was in effect a declaration of trust. Though I see no reason why he should have required indemnity where there was a guardian authorized to receive. Rembert and wife were the. only persons to whom he could have supposed himself to incur responsibility, and they were parties to the transaction, and concurred in it. If Smoot, then, took possession of the property in right of the complainants, as their agent or voluntary trustee, he would be concluded to deny their title by setting up a title in himself or any one else, upon its being demanded by them. If the court saw, however, that if in complainants’s possession, defendants might sustain a bill to set aside the contract, by which their title to slaves accrued, it would not do so nugatory a thing as to order them to be delivered up, that they might be reclaimed by a se*317parate bill. But were defendants under any mistake in their construction of the will'? I have very fully examined the authorities in relation to the subject, and am of opinion, that if it were no more than a limitation by the testator to his wife for life, and at her death, to his surviving children, equally to be divided, the construction was the correct one, and that the term surviving, must be taken to relate to the testator’s own death, in order to prevent a possible lapse by death in his life time. The case of *Drayton*vs. Drayton, 1 Eq. Rép. 324, is directly in point, nor do I think its authority shaken by that of *Swinton*vs. *Legare)*2 Me C. Ch. 440. ' The only circumstance to make a difference in the present case, is that the testator directs the property *to return to his estate*to be divided, as showing an intention that nothing was to vest in the children till then. I do not think it necessary to give an opinion as to the effect of this, or to enter into a full examination of the general doctrine, as I am clear that defendants are concluded by the partition.

It is ordered and decreed, that the defendants deliver up to the complainants respectively, according to their right, the slaves in their possession, which were bequeathed by the testator, Manassah Michau, to his wife for life, and which were allotted to the said complainants in the proceedings, together with the issue of the females; that they account for the hire of the said slaves while in their possession, and the value of such of them as they have sold or disposed of, with interest. Defendants to be allowed all sums paid or advanced by them on account of complainants.

The defendants moved the Court of Appeals to reverse the decree of the Chancellor in said cause, on the following grounds:

1. Because, by the proper construction of the will of testator, the survivorship must be held to relate to the death of the tenant for life, and the defendants were, therefore, entitled in remainder, to the exclusion of complainants.

2. That the mere fact of the defendants having the ne-groes divided into four lots or parts by persons, at their own instance} without any further act by the defendants, did *318not divest them of their right to the whole, or confer on complainants any rights to which they were not entitled under the will.

3. That if by the true construction of the will, the sur-vivorship is to be held to relate to the death of the testator, then the complainants were not entitled to any thing under the said clause — the estate surviving to the five children of testator, none of whom were before the court but the defendants, and Smoot, the administrator, with the will annexed, still liable to the personal representatives of the three deceased sons, who survived the testator.

4. That the *intention*of the defendants to divide the property with the complainants, in mistake of their rights, cannot operate to divest them of their whole interest under the said will.

5. That the decree is, in other respects, against justice and equity.

*Haynesworth,*for the appellants.

Those only can take .who are alive at the time of division, where there has been a previous estate, unless the contrary be specially shewn. Cited 19 Yes. 534 ; 1 Jacobs and Walker, 146; 4 Mad. 11; 3 Russel, 124; (3 Cond. Eng. Ch. Rep. 323 ;) 6 Yes. 29. In 1 Eq. Rep. 137, the survivorship is limited to the death of the testator, when division was to be made after payment of debts.

The case from 1 Eq. Rep. 324, is confined to the death of the testator.

The case in 1 Eq. Rep. 497, is not applicable. In 3 Eq. Rep. 186, survivorship is limited to the time of division. Cited 2 Me C. Ch. 440 ; 1 Hill Ch. 311. The words “or heirs of their bodies,” refer to the heirs of the surviving children.

As to the division. A partition under the order of the court does not bind until confirmed by the court.

*DeSaussure,*contra,

on the construction of the will, cited 1 Peere Williams, 96; 2 Yes. sen. 265; 3 Ves. 204; 8 Id. 30; 3 Brown Ch. Cases, 27; Bacon Ab. (Legacy E. 2.) Law Lib. 119, Ward on Legacies ; Id. 175.

If all the children had died, who would have taken the estate ? Cited 3 Burr. 1881. The words “ share and share alike,” create a tenancy in common. Cited 1 Yes. sen. 165 ; 22 Law Lib. 253; 4 Eq. Rep. 459 ; 18 Law Lib. 55, 56.

*319Withers, same side.

*Moses,*in reply.

If the survivorship is referred to the death of the testator, the estate must be divided into five, instead of four parts.

The direction that the estate should return to his estate and be equally divided, shows that testator intended that the legacy should not vest until the death of the wife. Cited 4 Ves. 551. The vesting on the death of the testator is not favored. Cited 18 Law Lib. 229; 10 Ves. 562.

Ouria, *per*Dunkin, Ch.

It is not deemed necessary to consider the second and fourth grounds of the defendants’s appeal, as the court are of opinion that, upon the construction of the will, the complainants’s claim must be sustained.

The clause of the will on which the rights of the parties depend, is in these words, viz :

> .“I give to my wife, Ann Michau, in lieu Of her dower, the use of one-fourth part of my personal estate, during her life; and, at her death, to return to my estate, with the increase of the negroes, and the whole to be equally divided among my surviving children, or the heirs of their bodies, share and share alike.”

It is manifest that the will was not prepared by a professional man, although it exhibits no want of ordinary clearness, in conception or expression. Its language should receive, then, the ordinary interpretation ; and, if possible, every word should have its full efficacy. In this view, the term “ or,” must have its common, natural signification, which is *alternative*on the part of the complainants. It is insisted, in the first ground of appeal, that “ by the proper construction of the will, the survivorship must be held to relate to the death of the tenant for life, and the defendants were, therefore, entitled in remainder, to the exclusion of complainants.” This construction can only benefit the defendants by disregarding the latter branch of the sentence. Conceding that the survivorship refers to the period of the termination of the life estate, what is meant by the alternative provision, “or the heirs of their bodies ¶” Cer-. tainly not the heirs of the bodies of the *surviving*children. Again, if only the surviving children could take, and al] *320had died, pending the life estate, leaving children, these children could take nothing as purchasers under their grand-father’s will, because the parents did not survive the tenants for life. The court would not adopt such construction, except from necessity. As the terms “or the heirs of their bodies” cannot, sensibly, be construed to mean heirs of the bodies of the children then in esse, it is proper to en-quire whether they are susceptible of a different interpretation, without doing violence to any established rules. On the death of his widow, the testator directs the share given to her, with the increase, to return to his estafe, “and the whole to be equally divided among his surviving children, or the heirs of their bodies, share and share alike.”

It seems to the court, that this provision was intended for such of the children as might survive the tenant for life, and for the heirs of the bodies *(or*children) of those who might not have so survived. This gives full effect to the term “or,” used in its natural sense. When a distribution is directed among his surviving children, or the heirs of their bodies, it is equivalent to saying, among my children who may survive, or the heirs of the bodies of those who may not survive; for no children could, at that time, have heirs, except those who had not survived.

To give any effect to the alternative expression, and to the latter part of the sentence, it must be construed to refer to the heirs of the bodies of the children who had predeceased the tenant for life.

In *Montague*vs. *Nuelea,*1 Russell, 170, Lord Eldon uses this language: “The words cannot be fully satisfied without giving to each some interest.” “Here the word is ‘orboth are not to take; but either the parent or the children in the alternative; and though, in many cases, ‘off has been construed ‘and,’ you must shew an intention requiring that. The natural import is to exclude the one from any participation of that which is given to the other.”

It was said, in the argument, that the testator evidently did not look beyond his children, and did not contemplate the contingency of their death, leaving issue. This supposition seems not warranted by a reference to other clauses of the will making provision for his children. In the last clause, the testator thus declares: “All the remaining *321parts of my personal estate, I leave to be equally divided between my children, share and share alike, as soon as they shall arrive at the age of twenty-one years, or, otherwise, at the day of marriage, which shall first commence; but if either of my children should die before they are of age, *or have lawful issue to survive*them, then, and in that case, their share so dying, to *return*to my surviving children, share and share alike.” From this clause it would seem that the testator intended a right by survivorship, to attach only in the event that a deceased child had left no lawful issue to survive him. This aids the construction which the parties themselves adopted in making the partition, and which, as far as the court can judge, best comports with the general intention of the testator.

It is ordered and decreed that the appeal be dismissed.

Johnson, Chancellor, concurred.

Johnston, Chancellor, absent from indisposition.