#### James T. Carson *vs.*John C. Kennerly and others.

Testator, having a wife and three children, bequeathed to each of them, by separate clauses of his will, certain negroes, in terms which would carry an absolute estate. By another clause he declared as follows: “I desire that all of the above legacies to continue to the legatees during their natural lives: — and if any of them should die without heirs of their bodies, begotten lawfully, — then, their and every of their parts, so dying without lawful issue, — their parts of my estate, to be equally divided among my surviving *heirs:”*— Held, that P. C. one of the children took in his legacy an absolute estate, defeasible, — and not a life estate *merely;*and that the limitation to *“*surviving heirs” was valid.

One entitled to a contingent interest in slaves, may or may not, according to the circumstances, be entitled to have his rights protected, where they are in danger, from the acts of the party in possession.

BEFORE JOHNSTON, OH., AT ORANGEBURG, FEBRUARY, 1856.

Johnston, Ch. The plaintiff brings this bill to secure his expectant interests in slaves bequeathed by his father James Carson, to his (plaintiff’s) brother, Patrick Carson, which are alleged to be endangered by circumstances stated in the bill.

James Carson died early in 1826, leaving a will executed the 10th of March in the same year, and leaving a widow, Mary M. Carson, and three children, Patrick Carson, James T. Carson, [the plaintiff,] and Julianna, now the wife of Wm. R. Bull.

By his will, he disposed, *inter alia,*as follows:—

“ *Item,*I give and bequeath to my beloved son, *Patrick Oarson,*four negroes, Primus, Adam, Deborah and Phoebe.”

# * -* * *t-** * *

*Item,*I desire that all and every of the negroes bequeathed above, should remain on the plantation, for and during the term of five years from my decease, for the support of my wife *260and her child, and for the payment of my lawful debts,— (including what is due to me by notes.) I desire that all my lands, not disposed of above, may be sold, and equally divided among all my heirs.”

“ *Item,*I desire that all of the above legacies to continue to the legatees during their natural lives : — and, if any of them should *die without heirs of their*bodies, begotten lawfully,— then, their and every of their parts, *so dying without lawful issue,*— their parts of my estate, — to be equally divided *among my surviving heirs.”**(a)*

*261The testator’s wife, Mary M. Carson, and his son, Patrick Carson, under the appointment of the will, qualified as executrix and executor the 12th of April, 1826. She is now dead, having deceased in 1834.

At the expiration of the five years limited by the will, Patrick Carson obtained possession, as legatee, of the four slaves bequeathed to him. He became embarrassed, and sale has been made of three of the slaves *\with the issue of the*females:]

1. Deborah and her three children then existing, were levied on by the Sheriff of Orangeburg, as the property of Patrick Carson, and sold about the year 1832 to the defendant Thomas Gleaton, who subsequently conveyed some of the family, then greatly increased, to his children; he also sold others. Most of the grantees of Thomas Gleaton are defendants.

There is no plea of purchase for full price without notice put *262in by any of the defendants, wbo bold Deborah or her increase; — some of the stock have been removed out of the State.

2. Phoebe was sold by Patrick Carson to one Robert Pou, as to whom want of notice is not averred or pleaded. Pou sold to the defendant Kennerly, and the stock of Phoebe is now increased to eleven or twelve. Express notice is proved on Kennerly and not denied by him. He sold the slaves, before claim by the plaintiff, for four thousand dollars, as he states in his answer.

8. Adam was sold by Patrick Carson to one Winningham, who sold again to John Corbit; and in the division of the estate of the latter, he was allotted to the defendant, William Corbit. Notice in this case is not denied.

Patrick Carson, who is a defendant, was married and had a child. The mother died; but the child was removed by its maternal grand-parents to Florida. The grandfather being dead, the grandmother is reported to have gone to Texas, carrying the child with her where it is reported to have died. Its death was reported among its relatives in this State more than seven years before the suit.

It appears that Patrick Carson is now old and quite infirm : from which the improbability of future marriage or issue is inferred. He is insolvent and unable to compensate the plaintiff and Mrs. Bull, (who is a defendant), for such interest as they claim in the property after his death.

The bill is brought to set up an interest, by way of remainder, in the plaintiff and Mrs. Bull, contingent upon the death of Patrick Carson without issue ; to have the evidences of their right here perpetuated and for a decree of security for the forthcoming at the death of Patrick of the property which came to the hands of the several defendants, or a full account of its value.

If the will, properly construed, contains a limitation over to *263the parties claiming under this bill, although the claim be subject to a contingency, I apprehend they are entitled to maintain a bill for the protection of their interests. He who has an apparent right at the time he institutes the suit, has a claim to protection, though it may turn out by his own death, or by some other event, that his right is subsequently defeated and passes over to another. The objection, therefore, that the right now insisted on is merely contingent, though strongly pressed, cannot avail the defendants.

The want of notice of the character of the title of Patrick Carson, under whom the defendants claim, cannot avail them ; nor, indeed, is such a defence pleaded.

Nor is the defence made by some of the parties, — that they sold some of the negroes before demand or claim made by the remaindermen, — sufficient. It is true, I apprehend, that if a party purchase, and afterwards aliene, property encumbered with a trust or a lien, all the time acting without notice of the incumbrance, and in good faith, he is not liable for the value of the property, but those who may be injured must follow the specific property and take their remedy out of it. But, as I have said, there is no plea, or pretence, of such ignorance on the part of these defendants ; but the contrary.

Therefore, if the will of James Carson makes good the claim set up by this bill, I see no reason why the bill should not be sustained.

The question,' then, is, what is the proper construction of the will ?

The construction is to be made from the whole instrument. It has been contended that inasmuch as the testator, in the first instance, gives the four slaves to Patrick in terms which, taken by themselves, confer an absolute interest on him, the effect of these words is not to be abridged by the subsequent words, in which the desire is expressed that the legatee retain his legacy for life. The principle is sound, that when an instrument, in certain parts, confers a clear right, *264the duty of the court is to adhere to that, until it shall find other modifying words in the paper, clear of ambiguity. *(Jesson*v. Wright, 1 Bligh, 1.) But still my persuasion is that these two parts of this will should be put together ; and that, subjected to this process, they create a legacy to Patrick, *habendum durante vita:*a life-estate in the negroes.

Assuming it to be a life-estate, the question is, what is the effect of the words, that if he die without heirs of his body, or issue, the legacy is to be divided among testator’s surviving heirs.

Dying without issue, when applied to a will like this, which came into operation before our recent statute, always (if there be nothing to control the words) refers to the failure of the party’s issue, whenever that may occur: and any limitation over, grafted on such an event, is too remote.

Certainly it is a circumstance worthy of attention that the direct interest is confined by the will to the life of Patrick, and that there is no limitation to his issue. Though he should have issue nothing is expressly given to them. All that the testator has done was to give the slaves to Patrick, and failing his issue, then over. But if there had been an express limitation to Patrick’s issue, generally, would the limitation over, on their failure, have been good ? Is the limitation over in this case any less remote because nothing is given to the issue, than if there had been a gift to them ? The event on which the limitation over is to take effect (the failure of the issue) would still be the same in either case; indefinitely remote and void. If the limitation over had been to testator’s two other children, by name, or other personal description, the cases of *Cox*v. *Buck,*5 Rich. 604, and *Sheppard*v. Sheppard, 2 Rich. Eq. 142, and *Postell*v. *Postell,*Bail. Eq. 390, are to the point that this circumstance would not be sufficient to divert the words “ dying without issue” from their established technical meaning. The failure of the issue would still be too indefinite and remote. If, however, to the name or description of an ex*265isting child, a testator annexes the condition of his *surviving*the event, this has always been held to indicate an intention of personal enjoyment on his part; and has the desired effect, because as he can only take *as*survivor, the event will be construed to be within such range, that he may survive it and thus have the benefit of the condition.

But if the limitation be to a *survivor*with superadded words, showing an intention to give him not only a personal but a transmissible interest, (such as, *“*to him, his heirs executors or administrators and assigns,”) then the intention of giving him a personal enjoyment is negatived, as explained in *Massey*v. Hudson, 2 Meri. 129.

The limitation over in the present case is to testator’s “ *surviving*heirs.” Are these heirs existing persons, or persons who must exist within lives in being ? If not, the limitation to them has no effect in bringing the event on which they are to take within the required period. In *Godbold*v. *Evans,*6 Rich. Eq. 26, it was determined that such words are not confined to the heirs of a testator existing at his death, but apply to such as shall exist when the estate, or interest, which they are to take, falls in. That is to say, the class of heirs fluctuates from time to time, and is only determined by a survey of those who can present themselves when the event occurs on which their interest depends.(a) The only heirs to take the limitation over, are those *surviving at that time.*

What is the time at which the limitation over is to take effect in the present case ? (For it is at that time that the heirs must survive.) To assume that the time is at the death of Patrick is to beg the question. The will describes the time. It is upon the failure of Patrick’s issue ; an indefinitely remote period. At that time the testator may have heirs surviving, *266very different from his children, but their interests under the will cannot be supported by law. They .are void for remoteness.

I have attained this conclusion not without hesitation, and am of opinion an appeal will not be unreasonable.

It is ordered that the bill be dismissed. Each party to pay his own costs.

The complainant and the defendant Bull and wife, appealed and moved this Court to reverse the decree on the ground:

That his Honor erred, it is respectfully submitted, in holding that the limitation to the surviving heirs of testator was void for remoteness.

*Cflover, Bellinger,*for appellants.

*Be Saussure, Brewster,*contra.

(a)

**The following is a copy of the disposing clauses of the will:

> “ I give and bequeath to my beloved wife Mary M., four negro slaves, Tim, Anthony, Sail and Jenny, with two hundred acres of land including the house and plantation, wherein I now reside, one horse and gig, with all my household and kitchen furniture, and three Mules, to be hers a slong as she lives — with an equal part of my Cattle aud Sheep, (and all my Hogs to remain for the use of my wife and child Julianna,) also my Island field and all the land about it to belong to my wife and daughter.

> *“Item,*I give to my beloved daughter, Julianna, four negroes, Toney, Jim, Catej'-, and Tenah, and two hundred acres of land of the River Tract, adjoining her mother’s. Two hundred and fifty dollars to be put out on interest, for her education if so much can be made out of the labor of the negroes before the division takes place, and an equal part of my stock of Cattle and Sheep, and I do hereby appointed my wife, Mary M., and my son Patrick to be her guardian until she becomes of age, or shall marry.

> “ *Item,*I give and bequeath to my beloved son, Patrick Carson, four negroes, Primus, Adam, Deborah and Phoebe, with two hundred acres of land on the River Tract, say to begin at my Island field, to come on this way, until ho has the complement, and an equal share of my stock of Cattle and Sheep, with two beds and their *Furniture;*also Forty dollars in two annual payments for Furniture.

> *“Item,*I give and bequeath to my son, James T. Carson, three negroes, Mary, June and Affe, and her future increase, also, two hundred acres of land on the River Tract, to be taken off of the east side of the House wherein I now reside, and an equal part of my stock of Cattle and Sheep.

> *“Item,*I desire that all and every of the negroes, bequeathed above, should re*261main on the Plantation, for and during the term of five years from my decease, for the *support of my wife and her child, and for the payment of my laioful debts*Including what is due to me in notes. I desire that all my lands not disposed of above may be sold and the money *equally divided among all my*Heirs.

> *({Item,*I desire that all the above legacies to continue to the legatees during their natural lives, and if any of them should die without heirs of their bodies begotten lawfully, then their and every of their parts so dying without lawful issue, their parts of my Estate to be equally divided among my surviving Heirs.

> *(t Lastly,*I do hereby nominate and appoint my wife, Mary M., and my son Patrick, executrix and executor of this my last Will and Testament, and for, and during the term of five years, the negroes to remain, *my son Patrick is to take charge of them, and make as good crops with them as he can for one-sixth*part of what he may make. But, and if my son Patrick, should neglect and by his conduct, prove himself incompetent to manage tho negroes, then in such case my wife shall have the liberty of employing a more competent person to overlook the farm, and I do hereby ratify and confirm this to be my last Will and Testament, revoking and disannulling all former Wills, Legacies and executors by me made and ordained.”

(a)

 Under another aspect, see *Hick v.*Pegues, 4 Rich. Eq. 415, — and *Buiest*v. *Dawes,*Id.ibid. The limitation in these cases was to *heirs,*— not heirs *surviving.*

The opinion of the Court was deliverd by

DaRGAN, Ch.

When the testator said in his will, “I give and bequeath to my beloved son, Patrick Carson, four negroes, Primus, Adam, Deborah and Phoebe,” &c., he gave them in terms which by their legal force and meaning would convey to Patrick an absolute estate in said negroes. This clause, in which the testator evidently disposed of his whole estate in the negroes named, must be construed in *pari materia*with the subsequent clause, in which he says, “ I desire all the above legacies” (including the one to Patrick, just recited,) “ to continue to the legatees during their natural lives, and if any should die without heirs of their bodies begotten lawfully, then their and every of their parts so dying without lawful issue, their parts of my estate to be equally divided among *267my *surviving*heirs.” Upon a superficial examination, these clauses would seem to be inconsistent. While the first gives an estate in fee, the last seems to restrict the estate given to the life of the legatee. It is the duty of the Court- so to construe the will, as to give efficacy, if that be possible, to every part of clause, so as to make it a harmonious whole. There is a construction of which the will is susceptible, by which both of these apparently inconsistent clauses may stand harmoniously together.

When the testator expresses himself to the effect that the legacy should continue during the life of the legatee, he does not mean to cut down the estate in fee, previously given, to a life estate ; but intended to engraft upon it a limitation which was to take effect upon a contingency. The will of the testator, according to this construction, would read thus: He gave the negroes, Primus, &c., to his son, Patrick, and his heirs forever, but if Patrick should die without lawful issue, then the estate of Patrick was to be merely a life estate, and he gave the negroes to be equally divided among his surviving heirs ; thus creating, as is by no means uncommon, an estate in fee, defeasible upon a future contingent event.

Such is what we understand to have been the intention of the testator. We have now to enquire whether the intention of the testator as respects the limitation over can be carried into effect; in other words, whether it be valid as being within the period of remoteness.

“ Dying without issue,” technically imports a dying without issue generally ; and a limitation predicated upon such indefinite failure of issue cannot take effect for remoteness. But if qualifying and restrictive words are employed, which explain the meaning to be a dying without issue at a particular time within life or lives in being, and twenty-one years afterwards, then the limitation over, if sufficiently certain, may take effect. Among these explanatory words, or provisions of a will which have been considered as restrictive upon the meaning of the *268expression *dying 'without*issue, none have been more potential than a gift to the *survivors*of a class who should be living at a period within the time prescribed by the law against perpe-tuities. Where the gift is to survivors, the testator is supposed to intend a personal benefit to those who do survive. *Only*those who survive can take, and those who die before the time to which the survivorship refers take no transmissible interest. If the gift be to the survivors, or their issue, or legal representatives, as in *Postell*vs. *Postell,*Bail. Eq., 390, and other cases, it is evident that no personal benefit was intended to the survivors as such, but a transmissible interest; in which case the gift to survivors would have no qualifying effect upon the generality of the expression, dying without issue.

When we apply these well settled principles to the construction of this will, the result cannot be uncertain. The testator, in substance says, that if his son Patrick shall die without issue, the legacy given to him shall be equally divided among his surviving heirs. The very term *surviving*necessarily implies a period at which the survivorship is to exist. It has no sense or meaning otherwise. To what period then does the survivorship relate ? There are but two periods to which it can reasonably be referred, namely the 'death of the testator, or the death of the first taker, Patrick. The idea that the sur-vivorship relates to the death of the testator is excluded by the express terms of the will. For the legacy to Patrick, ’ as to the other legatees, was to *continue to them*during life. Besides this, it is now well settled, that where the survivor-ship refers to no definite period, those who can bring themselves within the description at the death of‘the testator are supposed to be intended. But where a remoter period is referred to as the time of distribution, or of the vesting of the rights of the survivors ; as where a precedent life estate is interposed, at the termination of which the survivors are to take, *then*those and those only who can bring themselves within the description, are entitled to take. They take as survivors, *269to the exclusion of the representatives of those who may have died before that time. The period of survivorship in this case must be referred to the death of Patrick, in which event the legacy given to him is to go to such of the testator’s heirs as should be then living. Upon the foregoing views, we are of opinion that the limitation over to the surviving heirs is valid, and must take effect on the happening of the contingencies on which it is made to depend. This construction is fully sustained by the analogous ease of *Evans*vs. *Godbold*6 Rich. Eq. 27.

It is obvious that the plaintiff’s right depends upon a double contingency. Before he would be entitled to take, Patrick must die without issue living at his death, and he (the plaintiff) must be at that time surviving. On the failure of either event he takes nothing.

A question has been made in this case whether a party entitled to a contingent remainder, or interest, should have the remedy sought by the plaintiff for the preservation of the property in ease his contingent rights should hereafter become vested. It would be unwise and unsafe to hold that no contingent interest shall be protected in this way. An interest may be legally contingent, .and yet so certain as to amount in value to a vested estate. Take the case of an estate to one and his issue, and if he should die without issue living at the time of his death, then over to a third person with a transmissible interest. Suppose the first taker to be without issue, and so superannuated as to preclude the physical possibility of having issue. Yet by legal possibility such a person might have issue, and the estate of the remainder-man, though technically, and by every legal definition is contingent, its future vesting would be more than probable. Would such a party not be entitled to the remedy ? On the other hand, between the lapse or expiration of the estate of the first taker, and the vesting of the contingent remainder, there might be interposed the lives of a large number of robust children, *270grand-children, &c., all of whom must die in the life time of the first taker, before the contingent remainder can vest; making the vesting of that estate a very remote possibility.(a) It would not be consistent that a person under these circumstances should be allowed to harass and vex the party in possession with a proceeding like this. I have supposed extreme cases, but they illustrate the diffiulty, and show that it would be unsafe to lay down any arbitrary or inflexible rule.

In this case, the Court is of opinion, that the plaintiff has made a reasonable showing, to entitle him to relief. He has established a claim, the vesting of which, though still contingent, is within a reasonable probability. Patrick Carson is advanced in years, infirm, and unmarried. He is not likely to marry hereafter, or to have issue. He has or had one child, who, has been removed by relatives from South Carolina, and who, by the last accounts, seven years ago, was reported to be dead. If Patrick Carson dies without leaving issue, which under the circumstances is highly probable ; and if this plaintiff should then be living, which is also not improbable, then he (this plaintiff) would have a vested interest. Under these circumstances, the Court is of the opinion, that he is entitled to protection and relief. It is so ordered and decreed.

• It is further ordered and decreed, that the circuit decree dismissing the bill be reversed, and that the ease be remanded to the Circuit Court, to the intent, that the said court may consider and adjudge the mode and measure of relief to 'which the plaintiff- is entitled.

Donkin and Wabdlaw, CC., concurred.

*Decree reversed.-*

(a)

 3 Danl., Pr., 1851; *Williams*vs. *Duke of Bolton,*3 P. Wins., 268, n.