[Present, Chancellors Rdtmdge and Makshail)

#### Cruger and wife, and others, *vs.*Thomas Heyward, Executor of Daniel Heyward, dec. and others.

A father is bound to maintain and educate his minor son if he be of ability, though that son has a considerable estate *aliunde*: and he must account for the rents of his son’s estate, though liis own had been much injured by the war.

A devise of real estate to a son B,but if he died without issue, *to*a grandson D. and his heirs for ever; the limitation over is not too remote ; and the estate will go to the representatives of D. though he died before B.

In a similar limitation of personalty, (in the same clause of the will) the first devisee B. takes the whole ; and he dying without'issue, it Í3 distributable.

A devise toD. and on his dying’ without issue, to the heirs of T. and W. D. died without issue, at which time T. had but one son, but has had other children since. According to the maxim that *nemo est hares vitienth,*the heirs of Thomas cannot be known till his death. On that event, his. heirs will be entitled to a moiety of the estate.

Mr. DANIEL HEYWARD made and duly executed bis last will and testament on the 7th June, 1776,. and made among other devises of his estate, the following dispositions :

He devised to his son Thomas, in trust for bis, the tes-, *95'Gator’s grandson Daniel, bis plantation on Savannah river, called Varnezober’s, with all the slaves thereon, till he attained the age of 21 years : then to him and his heirs for ever: Also, the slaves on the plantation where the testator resided, which were not otherwise disposed of. But if his grandson Daniel should die under age, then *he*gave the real and personal estate to the heirs at law of his son Thomas, when they should attain 21 years of age.

JANUARY, 1802.

He also devised to his son Thomas, intrust for his. (the testator’s) son Daniel, during his natural life, the use of the lands, slaves, stock, &c. enumerated in his will, viz. An island, called Callewashie, and sundry other tracts of land : also, his house in Beaufort, and several slaves: At the death of his son Daniel, the testator devised the lands to be divided between the heirs male of his body ; and for want of such, between the heirs femaleand the slaves, between the heirs, male and female : but in case of no such heirs, then the land and slaves to be divided between the heirs of his (testator’s) sons Thomas and William.

By another clause in his will, the testator devised the-remainder of his estate l'eal and personal, to his sons James and Nathaniel, to be equally divided between them. •

He also gave to his son Thomas, and his other executors, “ full powers to act, do with, and dispose of the yearly produce of his estate as they should think proper, for the benefit of his heirs above-mentioned.”

By a codicil, dated the 15th July, *1777,*and duly executed, the testator devised to his son Benjamin, (who was born after the making his will,) the island called Calle-washie, with the slaves, stock, Eke. thereon. “ But in case he <3ie without issue, then he gave it to his grandson Daniel Heyward, and his heirs for ever.”

By another codicil, dated the 28th July, *1777,*and duly executed, the testator devised Coles island, (which was originally granted to Russell,) and the slaves thereon, to his son Thomas, in trust, for the use of testator’s son Daniel, during his natural *life;*and at his death, the lands to be divided between the heirs male of his body, and for *96want of such, between the heirs female; and the slaves.,between the heirs male and female : but in case of no such heirs, then the land and slaves to be divided between the 7 heirs of his sons Thomas and William.

The testator died in the month of October, 1777, leav-big his said will and codicils in full force. His eldest son Thomas proved the will, qualified thereon as executor, and possessed himself of the estates of the testator.

The téstator’s son Daniel, died in the year 1778, without issue.

His son William married after his father’s death, and died in the year 1786, leaving issue.

The testator’s grand son Daniel, (son of Thomas,") died in the month of February, in the year 1796, having attain-, ed the age of 21 years, & leaving a widow and a daughter.

The son Benjamin died in September, 1796, under age, and without issue.

Mr. Thomas Heyward, the *eldest*son, and acting executor of the testator, educated and maintained his son Daniel, the grandson of the testator, who was so particularly provided for by the will; and afterwards had a number of other children by a second marriage. His fortune was greatly injured by the war, in which he took an active part, having been a member of congress at the time of the declaration of independence. But his affairs were not so reduced, but that he was able to support and educate his son Daniel, equal to his fortune under his grandfather’s will.

The testator’s grandson Daniel, made and duly executed his last will and testament a few days before his deaths whereby he directed, that until his daughter Elizabeth M. Heyward should be married, or attain the age of 21 years, his wife should enjoy the profits of all his estate, if she remained so long his widow; and when his daughter should marry or attain 21 years, then the profits of the estate should be equally divided between his said daughter and his wife, as long as she should continue his widow. — » But that immediately after the second marriage or death *97©f'his wife, the rest, remainder and residue of his estate should go to bis daughter andherheirs forever. His daughter to be educated liberally out of the estate. The widow of the said Daniel Heyward proved his will, and qualified thereon as executrix; and some time in the year 1799, intermarried with Mr. Nicholas Cruger, complainant in this cause.

Mr. and Mrs. Cruger have filed their bill against Mr. Thomas Heyward, the executor, for an account and settlement of the rents and profits of the Varnezober estate, from the death of the testator to the time of the delivery of the plantation and slaves to his son Daniel, which took place three months before he was of age, in Feb. 1795.

The bill also insists, that on the death of Benjamin Hey-ward, (in Sept. 1796,) under age, and without issue, the Callewashie estate vested in the representatives of the grandson Daniel, according to the provisions of the will of the grandfather; and that the said Thomas Heyward, the executor, is accountable for the rents and profits from the death of the said Benjamin.

The bill further insists, that on the death of the testator’s son Daniel, without issue, the Cole’s Island estate which was devised (on that event occurring) to and among the heirs of the testator’s sons Thomas and William, became the property of the children of William Heyward* and of Daniel, the only child of said Thomas, who was in existence at the death of testator’s son Daniel, and the executor is accountable for the income of the estate.

The bill prays for an account and for relief, according to the rights of the complainants.

The defendant Thomas Heyward, in his answer, admitted generally the facts charged in the bill, with respect to the execution of the will and codicils stated, by his father Mr. Daniel Heyward, deed, and as to the members and state of the family. He stated that he had taken and held possession of the estates; but had given up the possession of Varnezober’s to his son Daniel (the devisee) in the autumn of the year 1794; and that Daniel had drawn all the *98profits of the crop of 1794, as well as of 1793. That his said son BanicT never required an account from him, and he believes never would have done so *;*and if he "had, the defendant believed there would have been little or no balance due to him, because the plantation had been ruined and broken up by the war, and re-established slowly, and at great expense after the war ; and because the defendant had paid all the expenses of the estate, as well as of his said son Daniel’s education and support. That he took no discharge from his son, for he had never taken one from his younger brothers, when he delivered up their estates to them. The answer admits that the defendant’s son Daniel died at the time stated, and left in full force his will, as stated by complainants ; and that his widow qualified as executrix, and has since intermarried with Mr. Cruger.

That Benjamin, the youngest child of defendant’s father, died in Sept. 1796, under age, and without issue ;— whereby a difficulty arises as to the Callcwashie estate.— That said estate having been devised by defendant’s father in case of Benjamin’s death without issue, to the said Daniel, (son of the defendant) and he having died in Benjamin’s life time, a question is made, whether the said estate vested in the heirs'of said Daniel, or in *the*surviving- resT duary legatee.

That the Callcwashie estate having been given in the first case to Benjamin, the income was employed for the use of Benjamin during his life, and abalance is due to defendant from the estate.

The defendant denies that the heirs of his son Daniel are entitled to any part of the estate which had been devised by defendant’s. lather to his own son Daniel, and on the event of his death, without issue, (which had happened) to the heirs of testator’s sons Thomas and William : because the maxim of law is, that *nemo est hares vvoenús ;*and defendant’s son Daniel dying in the life time of defendant, neither be or bis representatives are entitled.

Mr. N. Heyward’s answer admitted the will of his fa* *99ther Mr. D. Heyward, and the facts stated in bill of complainants ; but denies the claim of complainants to the Cailewasliie estate, and the crops thereof, as the limitation was too remote, and could not take effect in *law;*and that the death of Daniel Heyward, junr. (^grandson of testator) during the life of Benjamin Heyward, prevented said devise from taking effect, and the said estate sunk into the residuum of the testator’s estate, and passed under the residuary clause to this *defendant;*or became on Benjamin’s death without issue, the property of his surviving brothers and sisters.

Mr. and Mrs. Brailsford, (she being the testator’s daughter MariaJ in their answer admitted all the facts ; and they set up a claim to a distributive share of the slaves bequeathed, with the Callewashie plantation to Benjamin Heyward, and in the event of his death, under age, and without issue, (which occurred,) then over to testator’s grandson Daniel. They insisted that the estate vested in Benjamin, and that the limitation over to Daniel was too *remote*and void. Consequently on Benjamin’s death, the negroes are distributable among Benjamins surviving brothers and sisters, of whom Mrs. Bradford is one.

At the hearing of the cause, Mr. Gaillard argued for the complainants.

The defendant Thomas Heyward has not pleaded any release inbar. He has none; and he must account for the rents and profits of the Varnezober estate; and he cannot charge tlil expense of his son Daniel’s maintenance and education, as he (Thomas) was able to educate him out of his own estate. *%*Bro. Ch. Case 387. Hughes and Hughes.

The next question relates to Callawashie, and the ne-groes attached to it.

The word ii, used in this will, is the word that ninety nine men out of an hundred would have used. In almost $1 the devises, he attaches the *negroes to*the lands.

*100The testator has also used the word *it,*carrying lands and negroes to Daniel, in the case of Vamezober’s.

then “ it” has the extensive meaning of carrying ne-groes and lands in that case why not in the case of Calla-washie. It is the same, phrase.

There is no other clause, in the will, where “ ¿í” occurs, except in these two *cases;*and these are the only cases of single plantations.

The next point is, whether the limitation over Calla* washie, and the negroes to Daniel, are too remote. The intent must guide, if consistent with rules of law. Fearne, 4th Ed. 371, on Con. Rem. The words of the will must be construed to mean,* “ a dying without issue, living Benjamin,” at least as to personalty. See also Fearne, 356 — Courtis enclined to lay hold of any circumstances to confine the dying without issue, to dying without/ issue, living at death of devisee. 2 Fonb. 93. The court anxiously hunts for circumstances to tie up the dying without issue, within the permisible limits.

There is no real difference between dying without issue, and dying without leaving issue, and the cases which distinguish them, are frivolous. For the construction of the ivords, “ dying without issue,” see these cases; 1 P„ Win’s. .564', Pinbury v. Elkein. Ibid, 432, Target ,v. Gaunt. Ibid, 534, Hughes v. Sayer. • Ibid, 666, Forth v. Chapman.

■ The same words used in the same will may be construed differently, as to real and personal estates. There are sufficient words of restriction in this will. Fearne 355. If the devisee dies under 21, then the testator gives it over, ibis is a good limitation *;*and the 21 years makes no difference. Fearne 359. The word then, is sufficient to restric. But there are cases contrary to this. 2. Atkins, 308. Beaucierk v. Dormer.

If the court construe the word “ then” as sufficiently restrictive, it will give entire operation to the will. If' otherwise, not. 1 Bró. Ch. C. 188,190. Bigge v. Ben* sley, was decided against the Chancellor’s opinion, and *101jjelded to the authority of Lord H. in Dormer v. clerk. He does not rely solely on • the word then. But on other words of the will. 3 Burr. 1622. The intention is to prevail, if consistent with the rules of law. 3 Burr, 1634. In construing a will, the words supplied must be to support the *intent;*not to the defeat.

In *1*D. and East, 593, Judge Ashurst’s opinion was, that an express legal limitation is conclusive. But if it be Only by implication, then' the court may follow the intent. 3 P. Wins. 259. Atkinson v. Hutcheson.

In the case before the court, there is only an implied estate tail in Benjamin.

As to Callawashie itself, the will contains a good devise over. The Statute *de donis*is not of force.

It is then a fee simple, conditional at common law, in Benjamin. It will then go over to Daniel. 2 Black. 109, doctrine of fees conditional at common law. Benjamin having a conditional fee, he might have made it absolute ; but did not. The testator, if the condition was not pei-formed, might enter. Testator has given over to Daniel, this right of entry, and he takes it, and his representatives are entitled to hold. See Powell on devises, 31.

The residuary devisee cannot take; for the words rest, residue, and remainder, are relative terms, and mean what was not given.

The next point relates to the devise of Cole’s Island, or Russell’s, &c. &c. to his (the testator’s son) Daniel and the heirs of his body, male and female, as expressed in the will. “ But in case of no such heirs, then the said land between the heirs of my sons Thomas and William for ever, and also the slaves.”

The word “ heirs” in this will is synonimous with children.

His use of the words “ male and female heirs,” shews he meant children, not heirs at law, in the technical sense.

*JS*the words heir at law are meant technically, then the *102daughter of, Daniel, the testators grandson is the heir at law of the original testator.

The children living at the death of Daniel Heyward, the testators son, are the persons truly entitled.

The last clause of the will shews in what sense the tes*tator*uses the word heirs. The income is to be improved, for his “ heirs,” by which he meant, children. 1 P. Wms. 564, Pinbury v. Elkeins. . Limitation over is good in this case.

Estate directed by the will to be divided among the children of Thomas and William. These words form a sufficient limit. ' Fearne, 368. Keily v. Fowler.

To extend it beyond these would make the limitation too remote and void. Therefore the court will construe it living at the death of Daniel, the son; to let in Daniel the grandson.

But if the court thinks the limitation of Callewashie as to the negroes, was too remote, then the estate vested in Benjamin: And if so, is distributable, and complainants are entitled to a share. Fearne, 345, Con. Rem. Ibid, 368, Beauclcrk and Dormer. Ibid, 374.

Mr. PARKER also argued the cause, but I have no accurate note of his argument.

Mr. Desaussure on behalf of the defendant Thomas Heyward,

argued as follows:

The questions which arise, ai*e the following :

1st. Respecting the devise of Varnezober’s on. Savannah river, and the slaves thereon, to testator’s grandson Daniel. An account is demanded of the. rents and profits. Are the complainants entitled ?

2d. The devise by the codicil of 15th July, 1777, whereby testator gave Callewashie, and the slaves, &c. thereon to his son Benjamin *;*but in case he died without issue, then he gave it to his grandson Daniel, and his heirs for ever — Who are entitled, on Ben’s death without issue, to Callewashie and the slaves ? ,

3d. The devise by the codicil of 28th July, 1777, where*103by testator gave his tract of laud originally granted to Stephen Russell,, (called Cole’s Island) to his son Bank-1, under the same limitations as he had given other property to ° i said son Daniel, by his will: also the negroes thereon.

"Who are entitled under this clause ? As. to the fast question, we admit the devise to the grandson Daniel oi Varnezober, and the slaves. And we admit that defendant Thomas Heyward qualified and acted as executor.

We state the circumstances which prevented crops, and the improvement of Varnezober *;*the delivery of the property to the grandson Daniel, and his acquiescence, without an account. The answer explains the causes of this acquiescence. They were, because of the injuries done to Varnezober by the *enemy;*and of its desolate and unproductive state, and its renovation by T. Heyward.

2d. The second question arises respecting Calewashie, and the negroes thereon, and the crops thereof, since Ben-jamins death.

The complainants claim being for Callewashie and the negroes and the crops — let us examine by the words of the devise,

1st, What was intended to be passed ?

2d. Whether if intended to be passed, the limitation is not too remote ?

3d. Whether Benjamin had not such a vested interest, as gave him the crops ?

1st. The words are to his son Benjamin, Callewashie, with all the slaves-, &c. thereon. u But in case he die without lawful issue, *then*I give it to my grandson Daniel, his heirs and assigns for ever.”

The word it, clearly refers to Callewashie, and to that *alone;*to read it so, it is correct and proper. To make it refer to land and negroes, would be extravagant. The mere force then of the word *it,*does not carry the negroes,

If this reasoning be correct, then the complainant must resort to some supposed intent. It may be argued that he considered the negroes attached to the lands, and so meant 'them to pass by the word *it,*with the land. But we hare *104no reason to think so. For in many of the limitations over, he separates the lands and the negroes. See the w^> an(i particularly the limitations over. And where he does not separate them, he gives them distinctly, naming both. See instances in the will marked *;*and there is only one instance to the contrary.

The law does not give such enlarged meaning *to*words so limited.

A gift of the “ overplus of the estate,” to a man’s wife, carries only the personal estate, *2*Eq. Ca. Abr. 320, sec. 7. A man possessed of 5 messuages, devises 4 of *them;*and all the overplus of his estate to be at his wife’s disposal. The 5th messuage did not pass. 2 Eq. Ca. Abr. 320, sec. 8.

A devise of all goods, do not pass books, jewels, pictures, &c. 2 Eq. Ca. Abr. 322, sec. *12.*

A person seized of lands in fee in A. and possessed of á, term for years in B. devises all his lands, tenements and real estate in A. and B. to C. and his heirs. This will not pass the term. 2 Eq. Ca. Abr. 326, sec. 34. 3. P„ Wms. 26, Rose v. Bartlet, Cro. Car. 293. Chapman v. Hunt. 1 Vesey, 271, 2, 3.

2d. If it was intended by the testator to pass both land and negroes to his grandson Daniel, whether the limitation over is not too remote for either or both ?

A personal estate was devised to A. and in case she died without issue, then to B. Resolved that the devise over to B. is void, and the whole decreed to A.

2 Eq. Ca. abr. 322. Sec. 10.

Devise to one and his issue, or to one, and if he die without issue, remainder over to another, the devise over' is void *;*and the whole vests in first devisee.

Ibid, sec. Í4; see sec. 30, 1, p. 325; see. 39, p. 327.

The word “ issue,” takes in all issues in *infinitum.*J Vesey, 200, 1, 2.

When once an estate, (which in real estate would be an estate tail) vests in the first taker, that instant all the sub* sequent limitations became void, t T*. 'Wms. 98- *Frc.**105note (1) to case of Higgins vs. Dowler. See 4 Vesey, jun. *7Í7.*See the case of Beauclerk vs. Dormer. 2 Atlc. 308 and 376. 1 Burr. 272, 3. 1 Vesey, jun. 286, Everest vs. Gell. 3 Vesey, jun. 99, (in point,) Chandless vs. Price. 2 Bro. C. C. 33, Glover vs. Strotoff. Fearn. Ex. Devises, 167,230,249. 2 Fonbl. 72, 81, 2.

It is a rule that when a contingency is limited to depend on an estate of freehold, which is capable .of supporting a remainder, it shall never be construed to be an execu-tory devise, but a contingent remainder. Fearn. Ex. Dev. 16,17, 203, 5.

Executory devises are essentially different from contingent remainder, 50, 1, 73, 7, 8, 9.

Limit of executory devises as to real or personal, 82.

Wherever an executory devise is limited to take effect, after a dying without heirs, or without issue, subject to *no*other restriction, the limitation is too remote and void.

Fearn. Ex. Dev. 116,144, 154,167,171,4.

Exceptions to the rule, 179, 180,182, 1S6, 187, 8, 190, 1, 197,200.

The words of a will must be read with reference to the rules of law. Fearne 243.

The principal cases for complainant are 3 P. Wms. 262, Atkinson v. Hutchinson. 1 P. Wms. 98, Higgins v. Dowler. 1 P. Wms. 663, Forth v. Chapman, Ibid, 747, Pleydall, See note, p. 750. But they do not apply, 'or have been overruled by other decisions”

If as I have contended, the testator did not intend to pass the negroes by his codicil to his grandson Daniel, or the words do not pass them, or the limitation is too remote, then arises the question — did the estates vest in Benjamin, and on his death, are they now distributable among Thomas, Nathaniel, William’s children, and Mr, and Mrs. Brailsford; or do they pass by the residuary1 clause to Mr. Nathaniel Heyward ?

See 4 Vesey, junr. 708-9. 716. Brown vs. Higgs.

“ General residuary clause passes all that is not sufficiently disposed of, asinca.se of lapse,” Testator has given *106to the residuary legatee all that is not sufficiently dispe'í sed of.

A leased house, the bequest of which being to a charity, fails, passes under a general disposition of the residue, and does not belong to the next of kin as undisposed of.— See 4 Vesey, jun. *732-5.*Shanly vs. Baker.

A legacy out of the produce of Copyhold estate, directed to be sold, failing, was held'to pass by the residuary clause against the heir. 4 Ves. 802, Kennel vs. Abbot.

Residuary bequest of personal estate includes every thing, as a void legacy or one lapsed. 1 Vesey, 320-1-2. Durour vs. Motteux.

But it may be objected that these cases all go on the ground of a total failure of the legacy. Whereas there was a disposition which took effect, that the estate (Calle-washie and negroes) was vested in Ben; and it is only the limitation over to Daniel, which is too remote and void.''

Answer — It is of no consequence how it fails. The devise and bequestto Benjaminhad ran its course. He had but a life estate in the first disposing part. The very claim of the next of kin is, that the limitation over has failed— therefore they claim. But the law is, that on failure of *A*legacy, the residuary legatee takes. (Sed vide, the cases which say the first taker of personal estate, takes all.)

As to the crops and income of the Callewashie estate, •from the death of the testator to the time the contingency happened, and the estate vested, they clearly belonged to Benjamin, or at least he was entitled to a maintenance out of the income. It was a devise from a father to his son, and that son had no other maintenance or means of support. The court would have allowed the income to be so applied, if requested, and it will sanction what has been done by the executor. Even in the case of parents who are bound to provide for their families, the court will authorize the education and maintenance of a child out of the estate devised to him, if the father be incapable of doing it.

But Benjamin had no father living, nor no other estate, *107ihe income of wbicb could be applied to bis use during his ■minority. It would be very bard to starve him who was the direct object of the devise, for the remainder man. In such a case the court will be anxious to relieve Benjamin, See 1 Wilson, 140. 4 Bum’s. E. L. 314. 1 P. Wms. 783, Acherly vs. *Vernon;*2 P„ Wms. 21, Harvey vs. Harvey; 1 Bro. P. C. 228. 1 Bro. C. C. 119, 298. 2 Bro. C. C, 75. 3 Bro. C. C. 90,471. 3 Bro. P. C. 337.

The devise over is not an invincible objection to Benjamin’s taking the profits. 2 P, Wms. 21. 2, 419, 504. *2*Atk. 473. Amb.448. 1 Bro, C. C. 82. 1Q4. Main-iainence is so much regarded that the principal is sometimes allowed to be broken in upon, 1Yern. 255. 2 P« Wms. 22.

We come now to the third great question.

The consideration of the devise of the land, (Cole’s island) and the bequest of the slaves thereon to the testator’s son Daniel, by the codicil of 28th July, 1777. The words are — “ my island or tract of land, (called Cole’s, island) originally granted to S. Russell, I give to my son Daniel, in the manner mentioned in my above said will, together with the slaves, stock, &c.”

This refers us to the words of the will, where the testator disposes to his son Daniel as follows—

“ I will to my son Thomas, in trust for my son Daniel, during his naturallife, the use of the following land, slaves,, stock, &c. thereon, and thereunto belonging *;*and at his death I give them to be divided by my executors hereinafter named, the land between the male heirs of his body lawfully begotten, and for want of such, between the female *;*and the slaves, &c. between both male and female, and their heirs for ever, viz. One tract of land or island, called Callewashie, containing 550 acres, (various other tracts) ; one Mustee fellow Dick, and one fellow Jemmy, with one fourth of stores and lot at Cook’s landing, Oaketty; but in case of no such heirs, then the said land between the heirs of my sons Thomas and William for ever; and also the slaves.”

*108The son Daniel having died without leaving issue, the property will go under the said clause of the will.

We insist that the complainants cannot take, as representing the grandson Daniel; for he cannot be considered the heir of his father whilst living. *Nemo est hares vú ventis.*2 Bla. Com. 169. See the cases on this point. — - Fearn. Con. Rem. 3S9. Fearn. Ex. Dev. 77, 8,9. 1 Co. Rep. 66. Archer’s *case;*

A devise to Robert, remainder to the next male heir of Robert, and to the heirs male of the body of that heir male. This is resolved to be a contingent remainder during the life of Robert.

Now there was more *designatio personce*in this case than in Mr. Heyward’s, where there can be no pretence of a *designatio persones.*Co. Litt. 246, Fearn. Ex. Dev. 18,22. See 2 Fonbl. 72, 77,80, 93, 149, 73. Fearn. Con. Rem. 3?9, 392, margin 456. *1*Inst. 378.

Remainder may fail as to one moiety, and be good as to another. Fearn. Con. Rem. 391, 2, 3, 394, 5,6.

Where goods are devised to A. for life, and after her death to the heir of D. he who was heir of D. at his death, is entitled. 1 Vernon, 35.

For cases of *designatio persones.,*which prevent the operation of the maxim, *nemo est hares viventis.*See 2 Ven-tris, 313. 2 P. Wms. 340,1, 2.

It turned on the words “ now living.”

If we should be answered that though Mr. Daniel Hey-ward, jun. could not be the heir of his father Thomas then living, and who has actually survived him, these words of the will may be construed into a *designatio persona,*and he and they claiming under him, may take in this way.'

We reply that the cases decided are totally unlike this,. The testator did not intend it so, for he has made many such limitations in his will, where the persons spoken of had no children living. In the case of William, he limits in the case of his dying without heirs of his body, his estates to the heirs of his sons Thomas and Daniel — axu^-Daniel had then no child, and never had any.

*109ín the case of testator’s grandson Daniel, he limits, in case he dies under age, the real and personal estate given him to the heirs at law of his son Thomas, when they Should attain 21. He knew then that Thomas hadno other child than Daniel. Thus it appears to be used by the testator as a general phrase, and not as a *designatio ■persona.*And the maxim applies, “ *nemo est hcsres vi* ventis.”*

On examining the cases where by a *designatio persona,*the maxim, *nemo est hares viventis*ceases to apply, it will be found that there is something very special in them all.

In some it will be found that the words, “ heir now living,” qualified the case. 2 Vent. 313,311. 1 P. Wms¿ 229.

In others a provision was intended expressly for children, and the words “ heirs of the body” have been construed children. 2 P. Wms. 340, 1, 2.- See also 1 P, Wms. 229, 233. 2 Bla. Rep. 1010.

In this particular case the testator says, “ but in case of no such heirs, then the said land between the heirs of my sons Thomas and William for ever, and also the slaves.”

That he did not mean to designate Thomas’s son Daniel by the words “ heirs of my sons Thomas,” is evident from this, that he uses the same words with regard to William, who was then unmarried, and had no lawful issue. And so in another clause,w between the heirs of my sons Thomas and Daniel.”

Another circumstance to shew that testator, when speaking of his son Thomas’s heirs at law, had not a particular living child in view is, that in the devise of Varne-zober to his grandson Daniel, (son of Thomas) he goes on and says, that if Daniel dies under age, he gives it to the heirs at law of Thomas.

Chancellor Rutledge afterwards delivered the decree f, „ of the Court.

I.n this case there aye three questions for consideration.

*1101st. Whether the defendant, T. Heyward as trustee under the will of his father, must account for the profits of rhe estate (called Varnezober’s,~) devised to his sonDaniel, v " or whether they should be applied towards his maintenance anc^ education, during his minority ?

gd. Whether the limitation over, of the plantation, called Callewashie, and the negroes, after the death of Benjamin without issue, is good, or whether it is not too remote and void ?

3d. The testator devised certain lands and negroes to his son Daniel during life, afterwards to be divided between his heirs male and female, as therein particularly mentioned, and in case of no such heirs, then the lands to be divided between the heirs of his sons Thomas and William for ever; & also the slaves. Daniel died without issue. The question is, whether Daniel, the son of T. Heyward, when in life, or his representative, is alone entitled to a moiety of the estate so devised to Thomas’s heirs; T. Heyward being still alive.

Upon the first question there can be no doubt but that the defendant being a trustee, must account for the profits of the estate, (called Vamezober’s) during his sons minority. Although the court are fully impressed with the idea that the defendant’s son might never have called him to an account, and we feel the strongest inclination under the particular circumstances of this case to direct that the profits of the estate should be applied towards his sons maintenance and education, yet as it has not appeared in the discussion of this case that the defendant was unable to maintain and educate his son, and as the cases in the books are pointedly against such allowance being made (even in cases where an allowance is directed by the will) where the father is of ability to do it, we think we are bound by such decision, and cannot decree the profits to be applied for such maintenance. The cases in this court, where maintenance has been allowed, have all gone upon the principle that the fathers were not in a situation to afford *111a suitable maintenance to their children. However under *the*peculiar circumstances of this case, we think it is both just and equitable, that defendant be at liberty to bring in to account by way of discount, a charge for the work and labour of such of his negroes as he employed in erecting buildings and otherwise improving and putting in order the plantation belonging to his son.

As to the second question, respectingthe limitations over of the Callewashie plantation and negroes after the death of Benjamin withoutissue, it has been contended for complainant that Benjamin had only a conditional fee in the lands, and the reversion remaining in the testator, he might dispose thereof on the contingency of Benjamin’s dying without issue, and therefore that the devise over to Daniel and his heirs was good. That the bequest of the ne-groes being in the same clause, they were attached to the lands, and the same construction ought to hold, respecting them ; and that the words, in case he should die without lawful issue, should be construed as restricting the limitation to the dying without issue, at the time of his death; so that the limitation over of the personal estate is not too remote; that the court will lay hold of any circumstance, the most trivial to restrict those words, to the dying without issue, at the time of the death of the first devisee, to effectuate the intention of testator. That it was apparent from the words of the will that the testator intended the lands and negroes should go the same way by his coupling them together.

For defendant it was insisted that Benjamin had only an estate for life, or at most a fee conditional by implication in the lands ; and that Daniel the grandson, dying in his life time, the devise over could never take effect: that it therefore became a part of the residuary estate, to which the defendant N. Heyward was entitled by virtue of the residuary clause in testator’s will; that the words of the clause ought not to be restricted to Benjamin’s dying without leaving issue at his death, being general and unlimited ; and therefore that in this case, the absolute property *112in the personal estate vested in Benjamin, and must be distributed according to law : that where the words in a of real estate, would give the devisee an es~ tate tail expressly or by implication, the same words used *'irx*a disposal of personal estate, would vest the absolute property in the first taker.

The importance of this question arises more from the magnitude of the object in contest, than any great intricacy in it. The subject has been most elaborately discussed, and almost every case that could be found has been brought forward by the counsel. The infinite number of them tend more to perplex than elucidate the subject, and to shew the various opinions that have been entertained by the courts respecting such devises, and how anxious they have been to lay hold of any words in a will however trivial to discover the intentions of testator, and restrain the words dying without issue, to mean dying without issue living at the death of the first taker, in order to give efficacy to the devise over. This devise includes both real and personal estate, and therefore two questions arise out of it. 1st.— What estate Benjamin took in the lands, and 2d, what in the personal estate ? There is no doubt if the statute of intails was of force in this state, but that Benjamin would have had an estate tail in the land *;*for it is laid down clearly in the books, that if lands are devised to one, and if he die before, or without issue, or not leaving issue, it is devised over, these limitations create an estate tail: but that statute not being of force, the estate he took was a fee conditional at common *law;*the reversion of the estate still remaining in the testator, which he had a right to dispose of, and which he has done in this clause to his grand son Daniel and his heirs. It therefore can never be considered as a part of testator’s residuary estate undisposed of by will, to which defendant Nathaniel is entitled, but must go to the legal representative of Daniel. As to the 2d question, respecting the personal estate, it is clearly settled, that where the words in the case of a real estate would give an estate tail, or an estate in fee conditional, a *113limitation of personal estate by the same words, will pass the whole interest therein, unless there are some circumstances in the will which confine the generality of the expression, dying without issue, to the dying without issue then living, or living at the death of the first taker. If, however, there are no circumstances apparent to shew it was the intention of the testator to restrain the generality of those words, *such*devise over has been held void as being too remote. In almost all the cases previous to Beau-clerk and Dormer, there were some circumstances in the will which confined the generality of the expression to dying without issue then living, or without leaving issue. In. that case which seems to have settled the point, the words were general. “ I make Miss Dormer my sole heir and executrix, and if she die without issue, then to go to Beau-clerk *;*and the devise over was held to be void. In the case before us, the words are general: the devise is of Callewashie, with the negroes to Benjamin, but in case he die without lawful issue, then to my grandson Daniel and his heirs. It runs upon all fours with the case of Beauclerk and Dormer, and there is no one circumstance in this that occurred in the others. We are therefore of opinion, that the whole interest in the personal estate vested in Benjamin, and it must be distributed agreeable to law.

The third question is on the devise over to the heirs of Thomas and William, of the estate devised to the testator’s son Daniel, on his dying without issue. Upon this clause of the will, the single question is, which of the children of the defendant Thomas are to take ? From the confused and inaccurate penning of this will in several of the clauses, it is with the greatest difficulty that the testator’s meaning can be come at, and it is only by referring to a^ nother part of the will, that we can with any degree of certainty ascertain that he means children, when he speaks of heirs ; because in the legal acceptation of the word heir, a man can have but one heir, and he cannot be known till his father’s death. The clause we refer to is that, where*114in be directs his executors to dispose of the produce of hi» ■ estate for the benefit of his heirs, which word, in the case 7 oi^ Beauclerk vs. Dormer, the court construed to mean children.

All cases on the construction of wills, depend on the particular penning of the wills theniselves, and the state of the families to which they relate. If we take into consideration therefore, the situation of the testator’s family at the time of making his will, it will be found that his son Thomas had only one child, and that his son William was unmarried. The benefit intended by the testator, to their heirs was clearly future and contingent; because till the death of his son Daniel without issue, nothing was given to the children of Thomas and William; till then, nothing vested.

When the testator’s son Daniel died, Thomas had but one child, (at least it is not stated that he had another alive) and William had not any; therefore the estate Could not then vest; but it having been given to Thomas in trust, he continued in possession till the death of William, at which time it was ascertained who were the persons meant to be provided for by the testator; a division was accordingly made, and William’s representatives received their moiety of the estate so devised. We have reviewed with accuracy most of the cases cited on this point, but do not think that they apply to the present. In some of them it has been determined that children born after testator’s death could not take, unless their be a prior bequest of the estate for the life of another, (which is the present case.) In that case, all the children born in the life of the tenant for life will take ; but in this case none of the persons intended to be benefited by the devise were in esse at the death of testator or tenant for life, except Daniel, the grand son, who could not by any construction answer the description, or be within the intention of the testator, who undoubtedly had likewise in view, the future children of his sons Thomas and William. We are therefore of opinion, that Thomas being still living, it is uncertain how many *115children he may have who will be entitled to share the o-flier moiety of the estate in question. Until his death, therefore, no division can take place. On that event the representative of his son Daniel will come in for his pro* . portion.

It is therefore ordered and decreed that the defendant Thomas do account for the profits of his son Daniel’s estate, (Varnezober’s) during the time he had the management thereof, and be allowed in discount a reasonable compensation for the work and labor of such of his negroes as he employed in erecting buildings and otherwise improving his son’s plantation. That a reasonable allowance be charged for the use of the Callewashie plantation front. Benjamin’s death: that the negroes belonging to Benjamin, be distributed among those who are entitled thereunto agreeable to law.

That the defendant Thomas do retain in his possession the moiety of the estate which was devised to his heirs by the testator, on the event of testator’s son Daniel dying without issue.

Costs to be paid out of the estate,