#### *Daniel A. Burleson & others vs. Susan E. Bowman*& *others.*

Testatrix bequeathed the interest of £500 to S, for life, and after her death the said £500 to “the issue of S, to he equally divided amongst such issue, share and share alike, and their issue; and in case of only one child her surviving, then to such only surviving child.” *Held,*that the term issue, meant children, and that grandchildren of S, whose parents were alive at her death, were not entitled.

The term issue, generally includes all lineal descendants, hut this signification may he controlled by the context.

*Before*Joi-iNson, Ch. *at Charleston, February,*1843.

*By the Chancellor.*Margaret Hamilton, by her last will, gave £.500 to trustees, in trust to suffer and permit her niece, Sarah Burleson, to have and take the interest for life, and from and after her decease, “then in trust to permit and suffer the *issue*of my said niece, Sarah Burleson, by her first and second marriages, to have, receive and take the said principal sum of £500, and all other residue, to be equally divided amongst *such issue, share and share alike, and their*issue; *and in case of only one child her surviving, then to such only surviving child.”*Sarah Burle-son, the niece, left three children, the issue of these marriages, Daniel A. Burleson, Mary A. Tyson, and Susan E. Bowman, living, at the time of her death. At that time, Daniel A Burle-son had two, and Mary A. Tyson had three sons living, but the *112defendant, Susan E. Bowman, had no child, and the question raised by the pleadings is, whether the legacy of £500 is to be divided equally amongst Daniel A. Burleston, Mary A. Tyson and Susan E. Bowman, the children of the first taker, Sarah Burleson, or between them and the five children of Daniel A. Burleson and Mary A. Tyson, lining at the time of the death of Sarah Burleson.

The word *issue,*in its general acceptation, unquestionably includes all lineal descendants, and must, necessarily, receive that interpretation, unless connected with something which controlls its general signification ; and if the limitation over had been to the *issue*of Sarah Burleson, share and share alike, without more, the grandchildren, as well as the children, would be entitled to take; but the limitation over to one child, in case Sarah Burle-son left but one surviving her, demonstrates, I think, clearly, that in the use of the word *issue,*she meant children ; nor is it helped by the limitation over to the issue, and their issue, of Sarah Burleson, for the issue of her issue are but her lineal descendants, and are equally contracted and limited by the limitation over to her only surviving child, if she died leaving but one. The case of *Swift vs. Swift,*11 Cond. Eng. Ch. Rep. 378, cannot, I think, be distinguished from this. There, Edmund Swift, by articles entered into before his marriage with Mary Daly, agreed to assign to trustees certain money funds, to which he was entitled, in trust to permit him to receive the interest during his life, and to permit her *to*receive *it,*in case she survived him, during her life, and, after the death of the survivor, the funds to go to *the issue of the*marriage, in case there should be any issue of the marriage living at the time of the death of the survivor, in such proportion as the said Edmund Swift should, by deed or will, appoint, and for want of such appointment, then to *such issue,*share and share alike, and if but one, then the whole to go to *such only child.*The mafriage was had, and the wife, Mrs. Swift, died, leaving an only child, and that child died leaving a daughter, and the question was, whether that child was entitled to take under the agreement. The Yice Chancellor held that the expression “and if but one, the whole to go to such only child,” is demonstrative that the word “ issue,” means children, and, consequently, that the father was entitled to the trust funds. *Dalzell vs. Welch, 2*Cond. Eng. Ch. Rep. 434, has been relied on as authority for the complainants, and one of the provisions of the will in that *113case was, in terms and effect,- very similar to those in this case. There, in a bequest of chattels, the testator directed that the profits should be paid to his daughter during her life, and “in case she should leave any issue living at her death, that the said shares and produce of the lease should be disposed of, and the produce thereof paid and applied to and amongst the said child or children, at such time or times, and in such shares and proportions as Frances Dalzell (the daughter) should appoint, and in default of appointment, to and amongst such issue, if more than one, in equal shares and proportions, as tenants in common, and if there should be but one child, the whole to be paid to such one,” (fee. And the Yice Chancellor seemed to think that the word issue ought to be taken in its general sense, but the case turned upon another provision of the will, in which the limitation over was to issue generally, and the case cannot be received as authority in the question here.

Other clauses in this will have been referred to as tending to show that the testatrix intended to use the word “ issue,” in its most extended sense. Thus, she gives to the children of her niece, Mary Baldy, £500, .“to be equally divided between them, share and share alike, and their issue.” In another clause, she gave £500 to her niece, Jane Polhill, with power to dispose of the principal sum amongst her children, in such portions as she might think fit, and in default of such appointment, “ to be equally divided amongst her issue, share and share alike.” Again, in another clause she gives “to the children of Captain Tristam Cary, £200.” The shares of the minors, if any, to be paid to them at the age of twenty-one or days of marriage, and to Elizabeth Monteith, *“or her issue”*she gives a legacy of £20 sterling. But I do not see how these cases can aid in the construction of the clause under consideration, for there is nothing in them to restrict the interpretation of the term issue, as here, to children, and of course it must have its general signification. We may look into all the provisions of a will, to arrive at the intention of the testator in using particular terms, but here there is nothing to guide us in the interpretation of the word issue, as used in the clause under consideration, but what we find in it, for it differs from all the other dispositions of the will, and none of them are in the same terms, and differ in their legal effect. Thus, in the bequest to Mary Baldy’s children, the legacy is to be divided between them and *their*issue, but in the bequest of Jane Polhill, the limitation over is to *her issue,**114and the bequest to Elizabeth Monteith, is to her *or her issue j*that to Captain Tristam Cary’s children, is directly to them. The grandchildren of Sarah Burleson cannot take, as legatees, under the bequest of Margaret Hamilton, in question, and the fund must be divided equally between Daniel A. Burleson and Mary A. Tyson, complainants, and Susan E. Bowman, defendant, and it is so ordered and decreed. The costs of all parties to be paid out of the fund before division.

The complainants appealed, and moved the Court of Appeals to .reverse the decree, and to order the fund in question to be divided among all the complainants and the defendant, Susan E. Bowman, that is, one-eighth thereof to each of them.

McCrady, for the appellants.

-, contra.

*Per Curiam.*

We concur in the decree of the circuit court. Appeal dismissed.