#### *William B. Yates, administrator of James S. Mitchell, vs. Caroline D. Mitchell and William D.*Porter, *executrix and executor, et al.*

Testator directed that his estate should he kept together during the life of his wife, and devised one half of the income to her and the other half to his children. At her death he gave the estate to his *“*children, tobe equally divided among them, to them, their heirs, executors, &c. forever; and should any of my said children die, *without leaving issue living at the time of his, her, or their death,*then the share or shares of such child or children so dying as aforesaid, shall goto the *survivor or survivors of my said*children,” &c. *Held,*that the limitation to the survivors was not confined to the life of the wife, and that the share of a son who survived her, and then died without issue, went over to the surviving children of the testator.

*Before*Johnston, Ch. *at Charleston, February,*1844.

The principal object of this bill was to ascertain the interest which James S. Mitchell had in the estate of his father James Mitchell. James Mitchell died testate in the year 1831, leaving surviving him, his widow, Margaret, and nine children, of whom James S. Mitchell was one. The widow Mrs. Mitchell died in 1838. James S. Mitchell died in 1842, unmarried and without issue, leaving seven brothers and sisters surviving him. The clause m the will of James Mitchell on which the question arose is as follows :

*ultem.*I will, order, and direct, that all the rest, residue, and remainder of my estate, both real and personal, whatsoever and wheresoever, be kept together, and rented, hired, or employed, to the best advantage, so' as to raise therefrom as large an annual income as conveniently may be, for and during the life of my dear wife; and after paying all taxes, repairs, and expenses, in any manner accruing on the said rest and residue of my estate, I give, devise, and bequeath, one net moiety or half part of the said clear annual income, yearly, and every year, unto my said wife, for and during her natural life. And I give, devise, and bequeath, the other net moiety or half part of the said clear annual income, for and during the life of my said wife, unto my dear children, to be equally divided among them, share and share alike. And I will, order, and direct, that the provision made in this will for my dear wife shall be in lieu and bar of *266dower and thirds, and all else she can have or claim against my estate. And from and after the death of my dear wife, then I give, devise, and bequeath, all the said rest, residue, and remainder of my estate, real and personal, unto my dear children, to be equally divided among them, share and share alike, to them, their heirs, executors, and administrators, or assigns, forever; and should any of my said *children*die, *without leaving lawfully begotten issue, living at the time of his, her, or their*death, then the share or shares in my estate of such child or children so dying as aforesaid, without leaving lawfully begotten issue, living at the time of his, her, or their death, .whether specifically given, or otherwise accruing under this will, shall go to the *survivor or survivors of my said children, and to the issue of such of my said children as may have previously died;*the issue, if more than one, of any deceased child or children taking among them only the proportion or proportions to which the parent or parents, if alive, would have been entitled.”

The defendants contended that upon the death of a child *at any time*without issue, his share *of*the estate went over to the survivors.

The complainant contended that the limitation was confined to the case of a child dying in the life time of the widow, the tenant for life, and that James S. Mitchell having survived his mother was entitled to an absolute and unqualified share in the estate.

’ His Honor, the Chancellor, adopted the construction contended for by the defendants. The complainant appealed.

*Petigru*and *Yeadon,*for the complainant,

cited Speers Eq. 403 ; 5 B. *&*P. 55; 3 M. *&*R. 71 ; 2 lb. 52.

*King*and *Porter,*contra,

cited 2 Yes. Sr. 505 ; 4 Ves. 313, 319, 327, 331, 340 ; Bail. Eq. 535 ; 1 Swanst. 164.