#### *Benjamin Perry, adm'r of Isaac P. Droze,*vs. *Benjamin Logan and others.*

Under the statute of distributions, uncles and aunts of the half-blood are entitled as *next of*¡tin, in exclusion of first cousins of the whole-blood.

Where a testator directs his real estate to be sold by his executors, and bequeaths “the proceeds,” such “proceeds” being regarded in Equity, as personalty, a limitation over, upon the death of the legatee, “ leaving no lawful issue,” is not too *remote;*and it makes no difference that the executors neglected to sell, and that the legatee occupied and enjoyed the land.

Wherever a testator directs his land to be converted into money, and, as money, to go to the objects of his bounty, the bequest is, in Equity, regarded as one of personalty.

A claim for an account of rents and profits rejected as stale..

Testatrix, declaring that she had given Jane, one of her several legatoes, less than the others, directs each of her other legatees to give Jane his or her bond for $150, and charges their legacies, respectively, with the payment of that amount to Jane,- in case bonds should not bo given : after the death of testatrix the bonds were given *:*— Heldt that the bonds were not subject to the provision of a codicil to the will, which directed that “ *whatever property*” the testatrix had’ given three named legatees, Jane being one, should, in a certain event, go to others.

Devise to three, and if all “ shall die without lawful issue, *and*before they arrive at the age of twenty-one years,” then over: all died without issue, two before arriving at age, and ono after *:*— Held, that the limitation had failed — the double contingency on which it was to take effect not having happened.

Bequest to seven rosiduary legatees “ equally to be divided amongst them forever” : one having died before testator, *held>*that his share had lapsed and become intestate property.

Bequest to one absolutely, and should he “die leaving no lawful issue,” then to four persons, naming them, “ to be equally divided between” them : one of the four died *203before the *testator:*— &eld¡ that, as to the one-fourth which he would have been entitled to upon the happening of the contingeney, had he survived the testator, the estate of the first taker was indefeasible.

Where an estate is given to one absolutely in the first instance, and is made defeasible upon a contingency, on the happening of which it is to go over to a third person, if such limitation over cannot take effect, as, for instance, because of the death of such third person before the testator, the estate of the first taker is indefeasible.

This cause was heard at Colleton, extra sittings, July, 1852, before Dargan, Ch., who made the following decree :

Dargan, Ch. Isaac P. Droze departed this life in the month of October, A. D., 1850, intestate, and in the possession of real and personal estate. The complainant, Benjamin Perry, is his administrator. The intestate left an uncle of the half-blood, to wit, Benjamin S. Logan, residing in the State of Alabama ; an aunt of the half-blood, viz., Martha M. Chipman, wife of Henry Chipman, residing in the State of Michigan ; and various other relations claiming to be cousins german of the whole blood, who are named in the bill, and whose names it is unnecessary that I should particularly mention.

All these persons are parties to the bill; and their relationship, as therein stated, is admitted to be correct. The question between these parties is, whether the uncle and aunt of the half-blood are entitled to take in exclusion of cousins german, who are the children of the intestate’s deceased uncles and aunts of the whole-blood.

Independent of any authority in the way of a judicial decision, I should have very little difficulty in coming to a conclusion upon this question. The case must, of course, be determined by the statute of distributions. It obviously falls under the 7th, 8th, and 9th sections of the first clause, which are as follows :

“ 7th. If the intestate shall leave no lineal descendant, father, mother, brother, or sister of the whole-blood, or their children— or brother, or sister of the half-blood, or lineal ancestor, then the widow shall take two-thirds of the estate, and the remainder shall descend to the next of kin.

“ 8th. If the intestate shall leave no widow, the provision *204made for her, shall go, as the rest of the estate is directed to be distributed in the respective clauses, in which the widow is provided for.

“ 9th. In reckoning the degrees of kindred, the computation shall begin with the intestate, and be continued up to the common ancestor, and thence down to the person claiming kindred, inclusively, each step inclusively being reckoned as one degree.”

Now, the intestate, Isaac P. Droze, left no relations of the description mentioned in the seventh clause; and it follows, as a matter of course, that his estate must be distributed in the manner directed in the eighth and ninth clauses. In ascertaining who are the next of kinj the half-blood come in equally with the whole-blood. (2 Bl, Com. 215, 216; 2 Id. 504, 505 ; *Gue-rard*vs. *Guerard,*4 Des. 405, note.) The distinction between these two classes of heirs is dropped in reading the statute, as soon as we get through those cases which are specifically provided for. Having proceeded thus far, the rest follows. Adopting the statuory mode of computation, (which was that of the civil law,) the conclusion cannot be avoided, that an uncle or aunt, whether of the whole or half-blood, is one degree nearer to the intestate than a cousin german. And the surprise with me is, that a doubt should exist, after the principle was settled, that, as next of kin, the whole and half-blood should come *in pari passu.*But the question has been settled long since by judicial interpretation. *Karwon*vs. Lowndes, 2 Des. 210. And, more recently, in *Edwards*vs. *Barksdale,*Riley’s Oh. Cas., 17.

The Court is of the opinion that Benjamin S. Logan, the intestate’s uncle of the half-blood, and Martha M. Chipman, the intestate’s aunt of the half-blood, are entitled to the whole of the said intestate’s real and personal property, equally to be divided between them. And it is so ordered and decreed.

And it is further ordered and decreed, that they have leave to apply, at the foot of this decree, for a writ of partition, and for all orders that may be necessary to carry this decree into effect.

Another question arises in this case. How much of the estate *205of which the intestate Isaac P. Droze died seized and possessed, was he entitled to transmit to his next of kin, or heirs at law, It is admitted, that some portion of his estate was derived under the will of his grand-mother, Mary E. Droze. He thus derived the three negroes, Frank, William, and Maria, set forth in the inventory of the intestate’s estate, and another negro, named Gabriel, who was sold by the intestate in his lifetime. The testatrix, Mary E. Droze, having given various legacies to her seven grand-children, in words which would convey an absolute estate; by a codicil thereto, and of the same date, she provided as follows:

“Should my grand-children, Isaac P. Droze, John L. Droze, and Jane L. Droze, die *leaving*no lawful issue, it is my will, that whatever property I have given them, be equally divided between my grand-children, Josiah Perry, Benjamin Perry, Mary E. Waring, and Eliza E. Bass, to them and their heirs forever.” (a).

*206The controversy relates both to personal and to real estate. In the judgment of the Court, the words of the codicil, in reference to the personal property, are sufficient to create, and do create, a good limitation over to the Perrys, on the happening of the contingency upon which it was made to depend. The word *“leaving”*qualified the generality of the word “issue,” and makes the limitation to depend upon the first taker dying without issue living at his death.

John L. Droze and Jane L. Droze each pre-deceased Isaac P. Droze, leaving no issue. On the death of Jane intestate, her brothers John and Isaac, who survived her, being the only persons interested, divided the estate between them without an administration.

On the death of John, his brother Isaac, his sole heir at law and distributee, took possession of all his estate without an administration. Thus all the property derived by the Drozes from the estate of Mary E. Droze, centered in the possession of the complainant’s intestate, Isaac P. Droze. And the contingency having happened upon which it was to go over to the *207Perry family, the administrator must deliver to the remainder-men such of the property as is in *esse,*and must account for such portion thereof as is destroyed, or is not forthcoming. I mean the personal estate ; for I give a different construction to the will as to the real estate. I am also of the opinion, that all the personal property which passed to the Drozes under the residuary clause of Mary E. Droze’s will, including their share of the lapsed legacy to Josiah Perry, is subject to the limitation, in favor of the Perrys, created by the codicil. And the same having been paid over to Isaac P. Droze by J. J. Waring, the executor of Mary E. Droze, (John and Jane Droze having-died before they received their legacies,) the estate of the said Isaac P. Droze must account for the property so received by him. And it is so ordered and decreed.

And it is further ordered and decreed, that the slaves and their issue, and the other chattels now in existence, that Isaac P. Droze, John L. Droze, and Jane L. Droze derived under the specific legacies given to them by the will of Mary E. Droze, as also all the slaves and chattels now in existence, which they derived under the residuary clause of the said will, be delivered up by Benjamin Perry, the administrator of Isaac P. Droze, to be equally divided among Eliza E. Bass, Benjamin Perry, (the complainant,) and J. J. Waring, the administrator, and E. Waring. It is further ordered and decreed, that the administrator of the said -Isaac P. Droze do account to the persons last named, (himself among the number,) for the value of the negro Gabriel, sold by the said Isaac P. Droze in his life time ; the value of Gabriel to be estimated at the death of the said Isaac P. Droze; and for the interest, on the estimated value of Gabriel, from the death of the said Isaac P. Droze. And that the said administrator do, in like manner, account for the value of any other negro of the stock which Isaac P. Droze derived from the estate of Mary E. Droze, which he may have sold; and that he do, in like manner, account for any moneys, or choses in action, which Isaac P. Droze may have received from the estate of Mary E. Droze, under the residuary clause of her *208will; and that he account for the hire of the negroes subject to the limitation of the will, from the first day of January next, after the death of the said Isaac P. Droze, namely, from the 1st January, 1851.

I must now direct my attention to other questions made in the pleading. One of the tracts of land in the possession of Isaac P. Droze at his death, namely : “the settlement place, containing 714 acres,” more particularly described in the bill, was derived under the residuary clause of Mary E. Droze’s will; and it is contended, that this property also, now passes to the Perrys, under the limitation of the codicil. A limitation over, if the first taker should *die without leaving issue,*or *leaving no issue,*has a different construction, and is valid or invalid, according as it may relate to personal or real estate. Where real estate is the subject of the limitation, it is construed to be after an indefinite failure of issue, and fails for remoteness. The word *“*leaving,” in such a case, is not restrictive. *Forth*vs. *Chapman,*1 P. Wms. 665; *Mazyck*vs. *Vanderhorst,*Bail. Eq. 48. It is the opinion of the Court, that the limitation fails as to the real estate, and that the tract of land in question, was the absolute estate of Isaac P. Droze, and descends to his heirs at law. And it is so ordered and decreed.

A further question arises under the following circumstances. In the will of Mary E. Droze is a clause in these words: “ In consequence of my having given my grand-daughter, Jane L. Droze, but one negro, I will and direct that my said grandchildren, Josiah Perry, Benjamin Perry, Mary E. Waring, Eliza E. Bass, Isaac P. Droze, and John L. Droze, do give to my executors hereinafter named, their several and respective bonds, with good security, conditioned for the payment of the sum of one hundred and fifty dollars, with interest from the day of my death; which said bonds shall severally and respectively be made payable to the said Jane L. Droze, on her atttaining'the age of eighteen years, or day of marriage. And I do hereby charge the several and respective legacies bequeathed to my said grand-children, Josiah Perry, Benjamin Perry, Mary E. Waring, *209Eliza E. Bass, Isaac P. Droze, and John L. Droze, with the payment of the said sum of one hundred and fifty dollars each, with interest as aforesaid," in case, from any reason, such bond and security shall not he given.” Josiah Perry pre-deceased the testatrix. His legacy lapsed and was distributed under the residuary clause. John L. Droze ánd Jane L. Droze both died before the settlement of the estate of Mary E. Droze, and before this part of the will was carried into execution. The rights of Jane, and the obligations of John and of Isaac, were thus all combined in the person of the latter. There remained, the obligations imposed by the will upon Benjamin Perry, Mary E. Waring, and Eliza E. Bass, to be carried into effect. The-executor, J. J. Waring, took the bond of Benjamin Perry for $150 ; as also that of Eliza E. Bass for the like sum, according to the direction of the will, and delivered them to Isaac P. Droze as the sole distributee of John and Jane, on his attaining the age of twenty-one years; and in like manner, and at the same time, delivered his own bond to Isaac P. Droze *foli*$150, on account of the charge created by the will upon the legacy given to his wife, Mary E. Waring. These three bonds have been satisfied, by payments made to Isaac P. Droze in his life time. And as the testatrix in the codicil desires, that should her grand-children, John, Jane, and Isaac Droze, die leaving no issue, *whatever 'property*she had given them, should be equally divided between her grand-children, Josiah Perry, &c., it is contended, that the amounts paid upon these three bonds fall within the same category as the other property given to the Droze family, and are in like manner subject to the limitation of the will. I confess, that my mind has wavered on this question. I have had difficulties. I, at first, had a strong conviction, that the proceeds of these bonds were not subject to the limitation of the will; subsequent reflection has shaken the strength of this conviction. I am still inclined, though doubtingly, to my original opinion. The proceeds of these bonds constituted no part of the estate of the testatrix. It was over and beyond the total aggregate of her estate ; all of which she had disposed of by the specific, *210and residuary clauses of her will. And I am impressed, that the testatrix intended only to limit “ all the property which she had given ” otit of her own estate, and not the sums, which, for the purpose of equalizing the deficiency of the legacy to Jane L. Droze, she had charged upon the legacies of all her other legatees. It is the opinion of the Court, that the proceeds of these bonds do not pass under the limitation created by the codicil of the will. And it is so ordered and decreed.

One further question remains. A considerable portion of the property of which Isaac P. Droze died seized and possessed was derived under the will of his father, Hugh Droze. This testator, speaking in his will, after various dispositions of his property in favor of 'his three children, John, Jane, and Isaac Droze, declares as follows: *“*Provided either of my children shall die, before he or she shall arrive at the age of twenty-one years, *and*without lawful issue, then, his or her share shall go to the survivor or survivors, in equal proportions; but provided all my said -children shall die without lawful issue, *and*before they arrive at the age of twenty-one years, I give and devise the same lands and tenements to Josiah Perry, Mary Elizabeth Waring, Benjamin Perry, and Elizabeth Esther Perry, the children of Isaac and Eliza Perry, deceased and in a subsequent part of the will, speaking of the personal property, with language slightly variant, he declares as follows: *“*Provided either of my said children shall die without lawful issue, or before he or she shall attain the age of twenty-one years, then, his or her portion shall be equally divided between those who shall reach the age of twenty-one years ; but provided either of my said children shall die before the age of twenty-one years, leaving lawful issue, then the share of such deceased child shall go to his or her issue equally, when they shall attain the age of twenty-one; the increase, in the mean time, to be devoted to their maintenance and education. But, if all my said children should die without issue, *and*under the age of twenty-one years, then the whole of my personal estate shall go to Josiah Perry, Mary Elizabeth Waring, Benjamin Perry, and Eliza *211Esther Perry, the children of Isaac and Eliza Perry, deceased, their executors, administrators, and assigns.”

The children of Hugh Droze have all died without issue. Two of them, John and Jane, died under the age of twenty-one years; but Isaac, the survivor, lived some time after he attained that age. It is, notwithstanding, claimed on the part of Benjamin Perry, Mrs. Bass, and the representatives of Mrs. Waring, that the limitation now takes effect in their favor. The contingencies upon which these parties were to take, was a double one. Not only were all the children of the testator to die without issue, but they were all to die under the age of twenty one years, before the limitation in favor of the present claimants could take effect. The estate which the children of the testator took under the will, was a fee, defeasible upon a complicated condition: all of which has not happened. It has been urged in the argument, that the word *“ and,"*should be construed “ or,” with the view, it is said, of carrying into effect the intention of the testator. There is no doubt of the propriety pf this kind of construction, in cases calling for it. It is to be remarked, however, that the disjunctive conjunction is more frequently construed into copulative, than the converse. The Court should certainly be cautious in altering, by construction, the language of a will, where the effect would be to cut down an estate previously given. This mode of interpreting wills is a very delicate exercise of jurisdiction, and should only be resorted to for the purpose of carrying into effect the *manifest*intention of the testator — such manifest intention being made clear by a strong explanatory context. I see nothing in this will, to justify a resort to this mode of construction; nothing to shew that the intention of the testator, or the general scheme of his will, was different from that which the plain sense of the words employed would import. It is my opinion, therefore, that the condition on which the limitation was to take effect, has not happened; and that the property which Isaac P. Droze derived from the estate of his father, Hugh Droze, is the absolute estate of the said Isaac P. Droze, and is subject to partition among *212his heirs at law, and distributees' herein before declared. And it is so ordered. And it is further ordered and decreed, that the costs of suit be paid out of the assets of the estate of Isaac P* Droze.

The remainder-men under the will and codicil, appealed on the grounds

1. Because, his Honor erred in decreeing, that the proceeds of the bonds, directed by the will of Mary E. Droze, to he given by her legatees to Jane Droze, and which were paid to Isaac P. Droze, did not pass under the limitation, created by the codicil to her will.

2. Because, if the will is not an equitable conversion of the land into money, then it is respectfully submitted, that his Honor erred -in decreeing, that the limitation of the will and codicil of Mary E. Droze, as to the real estate, fails, and that the same became the absolute estate of Isaac P. Droze.

3. Because, by the residuary clause of Mary E. Droze’s will, her executors are directed to sell her lands, as soon after her death as possible, and the proceeds of the *sale*are bequeathed to her grand children, which is an equitable conversion of the said lands into money, and therefore, it is submitted, that his Honor erred in decreeing, that the said lands became the absolute property of the said Isaac P. Droze, by reason of the remoteness of the limitation over.

4. Because, the lands of the testatrix being converted by her will into money, will pass, with the rest of her personal estatef as *personalty,*under the limitation in the codicil to her will, to the persons to whom she has bequeathed it in remainder; and his Honor should have so decreed and ordered on account for the rents and profits of the land, or for interest on the value thereof.

5. Because, his Honor erred in decreeing an account against the estate of Isaac P. Droze, *only*for such slaves as were sold by him, as tenant for life, whereas, it is respectfully submitted, that the remainder-men are entitled to a full account for all *213slaves or other property, that are not forthcoming or produced, either by reason of a sale thereof, by tenant for life, or by reason of their death or destruction, from negligence, or wilful abuse, and ill treatment, or from other causes.

6. Because, his Honor erred in decreeing, that all the property derived by Tsaac P. Droze, under the will of Hugh Droze, was his absolute estate.

The first cousins of the whole-blood, appealed on the ground,

Because, his Honor erred in decreeing, that Benjamin S. Logan and Martha M. Chipman, wife of Henry Chipman, as uncle and aunt of the half-blood, are entitled to the whole estate of the intestate, Isaac P. Droze, in exclusion of the *first cousins*of the whole-blood.

Benjamin S. Logan and Henry Chipman and his wife Martha, appealed, on the grounds,

1. Because, it is respectfully submitted, that, as the testatrix, Mary E. Droze,- devised the residue of her estate to her seven grand-children, equally to be divided among them, and one of them, to wit: Josiah Perry, died in the lifetime of the testatrix; the effect is, that the testatrix died intestate as to one seventh-part of the residue of her estate,'and the said one-seventh part vested in Benjamin S. Perry, Mary E. Waring, Eliza E. Bass, Isaac Perry Droze, John L. Droze and Jane L. Droze absolutely ; and that as a consequence of these propositions, a distinction should be made between that which Isaac P. Droze took as a residuary legatee, and that which he took as one of the next of kin; and the same distinction applies to those parts of the estate which he took through his brother and his sister, and that so much as came to them, in the character of next of kin, is not subject to any limitation over.

*2.*Because, a distinction is also to be made as to the legacies, residuary and specific, bequeathed to Isaac Perry Droze, for, in the event that has happened, (that of his dying without leaving issue,) one-fourth part of the same is given over to Josiah Perry ; but as Josiah Perry died in the lifetime of testatrix, the *214bequest to him fails, and the estate of Isaac Perry Droze in that one-fourth part is not divested; and the same will hold good as to *the*interests which .Isaac Perry Droze took through his brother and sister. The consequence of which propositions is, that the representatives of Isaac Perry Droze should account to Benjamin Perry, Mary E. Waring and Eliza E. Bass, for three-fourth parts of those legacies bequeathed to him and his brother and sister, and no more.

*Perry, Treville,*for remainder-men.

*Henderson, Petigru,*for Logan and Chipman and wife.

*Edwards,*for first cousins.

(a)

 The following are copies of the will and codicil of Mary E. Droze. They both bore date March 22, 1824 :

I, Mary E. Droze, of the Parish of St. George, in the State aforesaid, being of sound and disposing mind, memory, and understanding, do make my last will and testament, as follows: I give and bequeath unto my grand-daughter, Mary E. Waring, the wife of Joseph loor Waring, the following negro slaves, to wit: Peggy, Rachel, Sibby, Bon, Toby, and Charlotte, together with the future issue, and increase of the females, from the date of this, my will, forever, her executors, administrators and assigns ferever. I also give to my said grand-daughter, forever, my draughthorse, called Diamond. Also, I give and bequeath the following slaves, to wit: Maria, Andrew, Cinderella, Edward, Amelia, and Priscilla, to my grand-daughter, Eliza E. Bass, wife of Thomas E. Bass, for and during kor natural life, *far*her sole and separate use ; and from and after her death I give and bequeath the said last mentioned slaves to such child or children, as my said grand-daughter, Eliza E. Bass, shall have living'at the time of her death, (the lawfully begotten issue, however, of any deceased child or children shall take the slaves that his, her, or their parent or parents would be entitled to, if living at the time of the death of the said Eliza E. Bass,) to them, their *exeautors,*administrators, and assigns. It is also my will, that the future issue and increase of the said slaves bequoathed to my said granddaughter, Eliza E. Bass, from the date of this, my will, shall be included in the s id bequest, to her and her children. Also, I give and bequeath all my household furniture to my said two grand-daughters, Mary E. Waring and BlizaE. Bass, to be equally divided between them, forever. Also, I give and bequeath unto my great-grand-daughter, Mary E. Perry, daughter of my grand-son, Josiah Perry, all my stock of cattle, forever. Also, I give and bequeath unto my grand-son, Josiah Perry, his executors, administrators, and assigns, forever, my waiting-man, Peter, my driver, Med, and Moses, son of Priscilla. Also, I give and bequeath to my grand-son, Benjamin Perry, his executors, administrators, and assigns, forever, the following negroes, to wit: Sam, Cain, and Delia, with her future issue and increase, from the date of this, my will. Also, I give and bequeath to my grand-son, Isaac P. Droze, his executors, administrators, and assigns, forever, my negroes Erank, Dick, and Hannah, with her future issue and increase from the date of this, my .will- Also, I give and bequeath to my graud-son, John L. Droze, my negroes Gabriel, Hayne, and Clarissa, with their future issue and *206increase, from the date of this, my will, to him, his executors, administrators and assigns, forever. Also, I give and beqeath unto my grand-daughter, Jane L. Droze, Dinah, Ilagar’s daughter, to her, her executors, administrators, and assigns, forover. In consequence of my having given to my said grand-daughter, Jane L. Droze, but one negro, I will and direct that my said grand-children, Josiah Perry, Benjamin Perry, Mary E. Waring, Eliza E. Bass, Isaac P. Droze, and John L. Droze, do give unto my executors, hereinafter named, their several and respective bonds, with good security, conditioned for the payment of the sum of one hundred and fifty dollars, with interest from the day of my death, which said bonds shall severally and respectively be made payable to the said Jane L. Droze, on her attaining the age of eighteen years, or day of marriage. And I do hereby charge the several and respective legacies bequeathed to my said grandchildren, Josiah Perry, Benjamin Perry, Mary B. Waring, Eliza E. Bass, Isaac P. Droze, and John L. Drozo with tho payment of the said sum of one hundred and fifty dollars each, wifh interest as aforesaid, in case from any reason such bond and security shall not be given. Also. I will and direct that my said seven grand-children shall pay each an equal proportion of the debts that I may owe at the time of my decease.

All the rest, residue and remainder of my estate, real and personal, I direct to be sold and disposed of by my executors, as soon as possible after my death ; and the proceeds I give and bequeath to my said seven grand children, equally to be divided amongst them forever.

Lastly, I nominate and appoint my grandson, Josiah Perry and the said Joseph loor Waring, executors of this, my last will and testament, hereby revoking all other and former wills by me, at any time heretofore made.

Codicil. — Should my grand-children, Isaac P. Droze, John L. Droze and Jane L. Droze die, leaving no lawful issue, it is my will, that whatever property I have given them, be equally divided between my grand-children, Josiah Perry, Benjamin Perry, Mary E. Waring, and Eliza E. Bass, to them and their heirs forever.

The opinion of the Court was delivered by

DaRGan, Ch.

The Circuit decree in this case decides many questions; and the appeals of the different parties have involved the necessity on the part of this Court of reviewing them all.— It will not be necessary, however, that I should discuss all the questions raised in the appeal, or consider them *seriatim.*

The testatrix, Mary E. Droze, after having given specific legacies to her grand-children, Isaac P. Droze, John L. Droze, Jane L. Droze, and to others, by the residuary clause of her will, devised and bequeathed as follows : “ All the rest, residue and remainder of my estate, real and personal, I direct to be sold and disposed of by my executors as soon as possible after my death ; and the proceeds I give and bequeath to my said seven grand-children, equally to be divided amongst them, forever.” And by the codicil of her will, she declared her intentions in regard to the Drozes, in manner and form as follows : *“*Should my grand-children, Isaac P. Droze, John L. Droze, and Jane L. Droze, die leaving no lawful issue, it is my will, that whatever property I have given them, be equally divided between my grand-children Josiah Perry, Benjamin Perry, Mary E. Waring, and Eliza E. Baas, to them and their heirs forever.”

Upon the question of limitation arising on the construction of the codicil, the Circuit Court held this language : *“*The controversy relates both to personal and real estate. In the judgment of *215the Court, the words of the codicil in reference to the personal property are sufficient to create and do create a good limitation over to the Perrys, on the happening of the contingency upon which it was made to depend. The word *‘*leaving,’ qualified the generality of the word *‘*issue,’ and makes the limitation to depend upon the first taker dying without issue living at the time of his death.” The Circuit decree proceeds to say : “A limitation over, if the first taker should die without *leaving issue,*or *leaving*no issue, has a different construction, and is valid, or invalid, according as it may relate to personal or real estate. When real estate is the subject of the limitation, it is construed to be after an indefinite failure of issue, and fails for remoteness. The word *leaving,*in such a case, is not restrictive. *Forth*vs. *Chapman,*1 P. Wms. 665; *Mazyck*vs. *Vanderhorst,*Bail. Eq. 48. It is the opinion of the Court, that the limitation fails as to the real estate, and that the tract of land in question was the absolute estate of Isaac P. Droze, and descends to his heirs at law.”

The doctrines thus asserted in the Circuit decree, and the distinction drawn between a limitation of personal estate, and a limitation of real estate, under the words of this will, are unquestionably correct; and this Court fully concurs in the views that have been expressed.

But there is an aspect of the case, which was not presented on the Circuit trial, nor considered by the Chancellor, which prevents the distinction between personal and real estate in this respect, from being material, or applicable to the case. In this Court, according to the equitable doctrine of conversion, there was no real estate to pass under the limitations of this will, although there was real estate disposed of by it. The will gave no *land*to the beneficiaries; but directed that the *redi,*as well as the personal estate should be sold by the executors: and it was “ *the proceeds*” of the sale that the testatrix gave, to be equally divided among her seven grand children.

Wherever it is apparent from the words of the will, that the testator meant, that his real estate,' as such, should not pass into the possession of the objects of his testamentary bounty: *216but that his real estate should be converted into money, and as money, that it should come to those for whom he designs the benefaction, in Equity it will be regarded as a bequest of personal property. Under such circumstances, it will be treated in all respects, as if the conversion had been made by the testator in his life time. This doctrine is fully .sustained by the authorities. 1 Rop. on Leg. 343, 356, 358, 365; *Walker*vs. Denne, 2 Ves. jr. 176 ; *Roach*vs. Haynes, 8 Ves. *591; Wright*vs. *Wright,*16 Ves. 191; *Cook*vs. *Duckenfield,*2 Atk. 568; *Durour*vs. Motteux, 1 Ves. Sen. 320. To these, numerous other cases might be added, were it necessary.

The lands devised in the residuary clause of Mary E. Droze’s will,' by the directions to the executors to sell them, and to pay the proceeds to the persons named, by virtue of this doctrine of equitable conversion, assumed under the will itself, the form and qualities of personal estate. It follows, that all the limitations of the will, under these circumstances, must be considered as limitations of personal property; and in a question, whether the limitation is valid, the same rules of construction must apply, which apply in the limitations of chattels. The limitation, therefore, is good as to all the property given to the Drozes, by the residuary clause of the testatrix’s will. At her death, the real estate descended to her heirs at law, subject to be divested by the sale and conveyance of the executors. And though the land has not to this day, been sold by the executors, this omission will not alter the case. In Equity, that which should have been done, will be considered as having been, done, and the parties in interest be put in the same positions respectively, as they would have occupied, had the directions of the ■ will been fully executed.

The question I have been considering, is raised in the third ground of appeal taken by the complainant, and the parties who are in. like interest with him ; which ground is, therefore, sustained.

The fourth ground of the same parties, raises a demand for rents and profits. We are of the opinion, that this claim can *217not be allowed. Rents and profits are, in a great measure, within the discretion of the Court. This is a stale claim. Isaac P. Droze was in possession of the land for a great length of time: for thirty years it is said; and, during that period, there was no demand or accounting for rent. Thirty years’ possession, under these circumstances, would raise a presumption of almost any fact that would discharge the claim. And when it is said, that he acknowledged the rights of the parties now claiming, we understand him to have had reference to their title, under the limitations of the will, rather than to an account for rent. Nor, do we think that the e-xecutors are liable to pay rent since the death of Isaac P. Droze, unless they have used the land, or otherwise made a profit out of it. It appears that they sold the negroes soon after the testator’s death, and could not have cultivated it, after that sale, for the benefit of the estate. They may, however, have leased it: in which case, and in any case, they are liable to the extent of the profit they have realized. This ground of appeal can not be sustained.

Benjamin S. Logan, and Henry Chipman and Martha, his wife, appeal on the following grounds : *“*1st. Because it is respectfully submitted, that as the testatrix, Mary E. Droze, devised the residue of her estate, to her seven grand-children, equally to be divided between them: and one of them, namely, Josian Perry, died in the life time of the testatrix; the effect is, that the testatrix died intestate as to the one-seventh part of the residue of her estate; and the said one-seventh part vested in Benjamin Perry, Mary E. Waring, Eliza E. Bass, Isaac P. Droze, John L. Droze, and Jane L. Droze absolutely: and that, as a consequence of these propositions, a distinction should be made, between that which Isaac P. Droze took, as a residuary legatee, and that which he took as one of the next of kin ; and the same distinction applies to those parts of the estate which he took through his brother and sister, and that so much as came to them in the character of next to kin, is not subject to any limitation over.” The Circuit decree is silent on the subject of this appeal. It was not discussed on the trial, and escaped my attention.

*218The facts assumed in the ground of appeal, above recited, are true, and the conclusion inevitable. There *was,*.on account of the lapsed legacies to Josiah Perry, a partial intestacy: and, of course, the intestate property cannot pass under the limitations, or dispositions of the will.

Josiah Perry pre-deceased the testatrix. The specific legacy to him of the three negroes, Peter, Ned and Moses, lapsed into the residuum of the estate, which passed under the residuary clause. The residuary estate, thus augmented by the lapse of the specific legacy to Josiah Perry, was given to the seven grand-children of testatrix, equally to be divided among them. Oí these, Josiah Perry, himself, was one. His share of the residuum which was one-seventh, lapsed and became intestate property. It was divisible under the statute of distributions among the six remaining grand-children of the testatrix, namely: the Drozes, Jsaac, John, and Jane; Benjamin Perry, Mrs. Waring, and Mrs. Bass, one-sixth to each of them. And, indisputably, such portions of the intestate property of Mary E. Droze, as Isaac P. Droze derived through his brother John, and his sister Jane, are not to be accounted for, under the limitations of Mary E. Droze’s will.

The second ground of appeal by the same parties is, *“*because a distinction is also to be made, as to the legacies residuary and specific, bequeathed to Isaac P. Droze : for, in the event that has happened, (that of his dying without leaving issue,) one-fourth part of the same is given over to Josiah Perry; but as Josiah Perry died in the life time of the testatrix, the bequest to him fails, and the estate of Isaac P. Droze, in that one-fourth part, is not divested : and the same will hold good, as to the interests which Isaac P. Droze took, through his brother and sister. The consequence of which proposition is, that the representa-' tives of Isaac P. Droze should” account to Benjamin Perry, Mary E. Waring, and Eliza E. Bass, for three-fourth parts of those legacies bequeathed to him, his brother and sister, and no more.”

The position assumed in this ground of appeal, is correct. It relates to the share given by the will to Josiah Perry, in the *219property bequeathed to the Droses, in the event of their dying without leaving issue. She gave each of them one-seventh part of her residuary estate: and in the event of their dying without leaving issue, it was to go over to the Perrys, of whom, Josiah was one. But, Josiah, as has already been stated, died before the testatrix. It is contended, in opposition to the views of the appellants, that Josiah’s share in the remainder which now takes effect, (all the Drozes having died without leaving issue,) or rather, would have been Josiah’s share, had he survived the testatrix, has also lapsed, and is intestate property of Mrs. Droze; and, as such, subject to distribution. To make this matter plainer, I will divest it of some of its complexities.

I will suppose that the testatrix has given certain property to Isaac P. Droze, which, by the terms of the direct bequest, would be an absolute estate: and in the event of his dying without leaving issue, she gives it to Josiah Perry. This is substantially the case here. And the position assumed on the part of the next of kin of Mrs. Droze is, that Josiah Perry’s interest in the remainder over, or what would have been such, had he survived the testatrix, has lapsed and is intestate property.

This proposition would be true, had the testatrix not given to the Drozes, by the terms of the direct gift, an absolute estate. The Chancellor has held, and this Court concurs, that the residuary clause of Mrs. Droze’s will, gives to the legatees therein named, a fee, which, by the codicil, is, as to the legacies given to the Drozes, made defeasible, in the event of their dying without leaving issue. Where an estate is given to one absolutely in the first instance, and is made defeasible upon a contingency, on the happening of which it is to go over to some third person, the estate given to the first taker is not to be defeated, because the event upon which it is to take effect, or the person who is to take, is insufficiently described; nor because the limitation is illegal, or void for any cause. The same rule applies where the person who is to take under the limitation has died in the life time of the testator.. The absolute estate first given can only be defeated where the limitation over can take effect. This *220ground of appeal is sustained, and the decree must be reformed accordingly. The share in the remainder which Josiah Perry would have been entitled to, had he survived the testatrix (which is one-fourth part) is the proper estate of the said Isaac P. Droze : for which his legal representatives are not accountable under the limitations of the will.

As to the other questions decided by the Circuit decree, to which exceptions have been taken by the different appellants, it is unnecessary to make any comments : this Court concurring in the views expressed by the Chancellor.

It is ordered and decreed, that the Circuit decree be modified and made to conform with this decree. In all other respects the Circuit decree is affirmed, and the appeals dismissed.

It is further ordered, that the matters of account be referred to the Master, and that the parties to the cause have leave to apply to the Circuit Court for any orders that may be necessary to carry this decree, and the ■ Circuit decree as thus modified, into effect.

Wardlaw, Ch. concurred.

Dunkin, Ch.

I concur, except on the first ground of appeal. My opinion is, that the bonds passed under the description of property given to the legatee.

JohnstoN, Ch. absent.

*Decree modified.*