#### *Thomas C. Mathis and wife and others*vs. *Charles Hammond, Ex’or. of Allen Anderson, junior, and others.*

Testator devised and bequeathed certain property, real and personal, to bis mother for life, with remainder toR. A. in fee, and “if R. A. should die without a lawful child, his legacy, both real and personal, shall go to” five persons, naming them, “or the survivor or survivors of them, or their lawful children, if any they may have.” R. A. died before the testator, never having had a *child:*— Held, that the lapse of R. A.’s interest did on affect the limitation over. i a

The question, whether the limitation over is void for remáteness, referred to the Court of Errors.

*Before*Dunkin, Ch., *at Edgefield, June,*1852.

So much of the circuit decree as is necessary to a full understanding of the question made in the Court of Appeals, is as follows:

Dunkin, Ch. The will of Allen Anderson, the younger, bears date 13th September, 1844. By the first clause he de-' vises and bequeaths all his property to his mother, to use as she may think proper, during her natural life. The second clause is as follows: *“*I give to my nephew, Robert H. Anderson, son of George Anderson, at the death of my said mother, all the *122lands which 1 now own in the State and district aforesaid, and one-half of all the balance of my estate.” By the third clause he gives the remaining one-half of his said estate to' the five children therein named, of his deceased brother, James Anderson. The fourth clause is thus : “It is my will if Robert H. Anderson should die without a lawful child, that his legacy, both real and personal, shall go to the above named five children of James Anderson, viz: “Indiana, Louisiana, Andrew, James Allen and Ignatius Anderson, or the survivor or survivors of them, or their lawful children, if any they may have.” *Fifthly:*“ It is further my will that none of my personal or real estate be sold for a division, but five good and respectable men be chosen by the legatees or their representatives to make the division as above directed.” Robert H. Anderson died without issue, in September, 1849, some eight months prior to the death of the testator.

The question is, Whether the estate given to Robert, lapsed in consequence of this event, passed to the children of James Anderson, deceased. It is very clear that under the second clause Robert would have taken a vested remainder in fee in the realty, and an absolute interest in a moiety of the personalty expectant on the determination of his grand-mother's life estate. If no further provision had been made, then, in the events which have happened, Allen Anderson, Jr., would have died intestate as to this portion of his estate. But after disposing, in the third clause, of the other moiety of his personal estate, the testator, in the fourth clause, makes the provision before recited. It has been frequently remarked that *death*is a certain event, and that any expression of contingency in regard to it is not strictly accurate. The contingency must therefore refer to dying at *some*particular time (which *is*contingent) rather than to dying at any'time (which is certain and inevitable). But “ *dying with or without a lawful child*” is purely contingent and cannot be restricted to a particular time, unless it seems to have been the intention of the testator to refer to the death of the legatee at a particular time. The latter construction was *123adopted, after much difficult deliberation in *Vidal*vs. *Verdier*Sp. Eq. 402.

The expressions here used are, “It is my will, if R. H. Anderson should die without a lawful child, that his legacy both real and personal, shall go to the above named five children, &c., or the survivor or survivors of them, or their lawful children, if any they may have.” If Robert had survived both the testator and tenant for life, and had *then*died without a lawful child, it would be difficult to doubt the intention of the testator that, in that event) Robert’s legacy, both real and personal, should go to the children of James Anderson. The argument is, that the testator intended to provide for the event which has occurred, and to prevent the effect of a lapse in consequence of the death of Robert in his own lifetime. If the contingency contemplated had been merely the *death*of Robert, the hypothesis would have much force. But the contingency is the death of Robert *without a lawful child.*The testator has made no provision, however, for the child of Robert, and if Robert had died in the testator’s lifetime, leaving a child, neither the child could take anything, nor could the children of James Anderson take. The only objects of the testator’s bounty, after his mother, were his nephew Robt. H. Anderson, and the children of James Anderson. He had already given his real estate and the moiety of his personalty to Robert, and the residue to the children of James. If he intended to provide for the contingency of Robert’s death, without a lawful child in his own lifetime, why not have declared that, in such event, his whole estate should be divided among the children of James Anderson. This would have been the simple and natural expression. On the contrary, if he contemplated Robert to have received his estate, and taken an absolute interest, subject only to defeasance by his death without a lawful child, his apparent purpose would be effected by the language used. If Robert left a lawful child, such child might take the estate of his father, not from the testator, but from his own father. If Robert died without a lawful child, *124the remainder over would take effect in the children of James Anderson.

I am spared the necessity of further discussion of this topic, by the recent decision of the Court in *Lesty*vs. *Collier,*3 Rich. Eq. 125. Taking this view of the subject, I am of opinion that Allen Anderson, Jr., died intestate as to his real estate and a moiety of his personalty, and it is so declared.

From this decree an appeal was taken by the defendants on several grounds, all of which were abandoned but the following :

Because by the proper construction of the will of Allen Anderson, junior, the legacy given to Indiana, Louisiana, Andrew, James Allen and Ignatius Anderson, did not lapse upon the death of Robert H. Anderson in the testator’s lifetime.

The case was argued at May Term, 1853, and re-argued at this Term.

*Petigru, Bonham,*for appellants.

*Carroll, Bauskett,*contra.

The opinion of the Court was delivered by

Johnston, Ch.

This is an appeal from a decree delivered by Chancellor Dunkin, at Edgefield.

The portion of the decree from which the appeal is made relates to the will of Allen Anderson, junior, executed in September, 1844 ; the material clauses of which are as follows :

> “ *First.*I give, &c., to my beloved mother, Mary Anderson, during her life, all my property, both real and personal,” &e.

> “ *Secondly.*I give to my nephew, Robert H. Anderson (son of George Anderson), at the death of my said mother, all the lands which I now own in the State and district aforesaid,” (Edgefield district,) “and one-half of all the balance of my estate.”

> “ *Thirdly.*I give the remaining half of my said estate to the five children, hereinafter named, of my deceased brother, *125James Anderson, viz: Indiana, Louisiana, Andrew, James A. and Ignatius Anderson.”

> £dp *“ Fourthly.*It is my will, if Robert H. Anderson should die without a lawful child, that his legacy, both real and personal, shall go to the above named five children of James Anderson, viz: Indiana, Louisiana, Andrew, James A. and Ignatius Anderson, or the survivor or survivors of them, or their lawful children, if any they may have.”

Robert H. died, an infant, and never having had issue, in September, 1849; then the testator died in May, 1850; and lastly, Mary, testator’s mother and devisee for life, died in February, 1851.

In a contest whether the death of Robert lapsed his interests under the will, so as to prejudice and destroy the limitations of of those interests over to the five children of James, the "Chancellor decreed the affirmative of that proposition; and adjudged that the property covered by so much of the will as related to the subject became intestate and distributable.

From this judgment an appeal was taken on various grounds, all of which were abandoned and struck out by counsel, except a single one, which maintains that the lapse occasioned .by the death of Robert, in the lifetime of the testator, does not affect the limitation over.

We are all of opinion that the proposition maintained in the decree, and just stated, is untenable, and that if the limitation over is free from other objections than lapse, it must prevail.

Upon general principles it would seem that where a testator gives property in succession to two persons, .there is evidence of such a state of his affections as would warrant the inference of an intention on his part, that the secondary object of his bounty would have induced a direct gift to him if the primary object had never existed, or were out of the way. The difference made between them exhibits a mere preference of the one over the other: but both are preferred over the heirs or distributees ; otherwise there is no motive to make the will.

*126Before proceeding further in this opinion, it may be proper to state that when an estate granted out is coupled with a condition upon which it is to cease (not to *go over,*but merely to *cease and*determine,) this is always regarded as a mere condition. If the condition be not performed, in a case where the devisee is required to be active, — (as where the condition is an act to be performed by him,) — though his estate is liable to forfeiture, yet no one can take advantage of his omission but the heir; and it he be himself the heir, he may elect not to enter and terminate his estate under the devise. And though he be not the heir, yet if he forfeit the estate, so that the heir might entei, Equity will interpose to protect him, if compensation can be made to the party entitled to the performance of the condition. Not so, however, if there be a limitation over: not even if the condition be expressly stated as a condition, instead of an exe-cutory devise. In such case, if the condition be not performed, it is always treated as a conditional limitation; differing in no essential from an executory devise. See 1 Pow. on Devises by Jarman 112 (*193) note 4; and id. 114 (*196) and notes 7 and8.

In note 8 above referred to, taking notice of the case of *Avelyn*vs. *Ward*(1 Ves. Sen. 420), it is observed, “This case furnishes an instance of a rule of construction, applicable to conditional limitations, of extreme importance. It is this: That although the estate, — on the conditional determination of which the executory limitation is limited to take effect, — never arises, and, therefore, in strictness, the contingency does not happen; yets uch limitation over will, nevertheless, take place, — the first estate being considered only as a preceding limitation, and not a precedent condition.”

In *Avelyn*vs. *Ward*the testator devised his real estate to liis brother B. and his heirs, upon the express condition that within three months after his decease, he should execute and deliver a general release to his trustee; and if his brother should neglect to. give such release, — then he devised the estate to C. in fee. B. died before the testator. It was, therefore, contended that the devise over did not take effect, as it was a strict condition, *127and before any breach could happen the estate must first vest in B. But Lord Hardwicke regarded it in the light of a conditional limitation, not a mere condition, and supported the limitation over. He said he knew of no case *“*of remainder, or conditional limitation over of a real estate, whether by way of particular estate, so as to leave a proper remainder, or to defeat an absolute fee before by a conditional limitation, — but, *if the precedent limitation, by what means soever, is out of the case, the subsequent limitation takes*effect.”

In the commentator before referred to (1 Pow. on Dev. by Jarman, 114, 115, 116, 117, 118, 119, (T96-204,) note 8, the cases are well collected and commented on: and the commentator deduces these conclusions:

1. Wherever an executory limitation is founded on the failure of the preceding devisee to do certain acts after the testator’s death, it will not be defeated by the death of such preceding devisee in the testator’s lifetime.

2. Where an estate is limited to a person, though not *in esse,*and limited over in case he omit to do certain acts, or in the event of his dying under 21, or without issue, the devise over will take effect, though the preceding devisee never came into existence.

3. It is not universally true, as laid down by Lord Hadwicke, *in Avelyn vs. Ward,*that “if the precedent limitation, by what means soever, is out of thefquestion, the subsequent limitation takes place: for if the events upon which the estate is to shift from the first devisee, be such as may happen as well in testator’s lifetime as afterwards, and the first devise lapse by the first devisee’s death, in the devisor’s lifetime, — under circumstances which, *had they happened after the testator’s decease, would have vested the property inthe first devisee, to the exclusion of the executory or substituted devisee,*— it is clear (such is the opinion of the annotator) that such executory limitation is defeated, — though the precedent limitation is “ out of the case.”

See also those cases where the first bequest is made on condition to promote a special purpose, and given over only on *128condition that that purpose is not effected, and the first de-visee effects the object or purpose and then dies in the lifetime of the testator: though *his*legacy lapses, it shall not. go over, the ulterior limitation being prevented from taking effect by the very terms on which it was granted, *(a)*

But the truth of the proposition on which the appellants depend in this case, is too clear to require further discussion.

This does not, however, terminate the case. It has occurred to some of the Judges that the limitation over, though not affected by lapse, may be too remote. That question has been accordingly argued here ; and the Court being divided in opinion on it, it is ordered that it be sent to the Court of Errors. Let the case, therefore, be docketed in that Court, for the determination of that question.

Dunkin, Dargan and Wardlaw, CC., concurred.

(a)

**1 Rop. Leg, Ch. 8, Sec. 3, p. p. 327, 329.