#### *Robert Shaw*vs. *W. S. Monefeldt and others.*

Testator direoted the residue of his estate to be sold by his executors and the proceeds invested. The interest and profits he gave to his widow for life. He then direoted that at her death the principal be divided, and he gave one moiety thereof to M. B., “if she shall be then living” — if not, to such of her children “as may be then living.” The other moiety he direoted to be subdivided into five equal parts — one part he gave to J. P., and the other four parts to four of his brothers, naming them; “ and in oase M. B. should die before my wife and leave no children surviving at the death of my wife, or in ease of the death of any other of my said residuary legatees before my said wife, *or*under age, the part or share of such so dying of the residue of my estate, shall go to the remaining sons of my father, to be equally divided between them, except his son John, who is hereby excluded from any part of my estate.” M. B. died before testator’s widow, leaving no children. Two of the four brothers named as legatees also died before the widow, leaving no children, and one having attained full age died in her life time, leaving issue:

*Held,*that upon the death of M. B. her moiety went to the other sons of testator’s father, except John; and that the son who alone survived the widow was not exclusively entitled.

*Held,*further, that the interest of each of the four brothers named as legatees was defeasible only in the event of his dying before the widow *and*under age, in which event it went over to his other brothers, except John; and that the interest of each became indefeasible upon his attaining full ago or surviving tho widow.

*Before*Wardlaw, Ch., *at*Charleston, June, 1853.

Wardlaw, Ch. William D. Shaw, late of Charleston, made his last will and testament, bearing date December 31, 1817, whereby he constituted his wife Eliza, during widowhood, and his friends, Thomas Blackwood, Alexander Black and Timothy Street, his executors; and after some specific and pecuniary legacies, directed the residue of his estate to be sold and disposed of by such of his executors as should qualify and act, and the moneys arising from such sale, or from his choses in action, or otherwise from his estate, after the payment of his debts and legacies, to be invested by his said acting executors in public or bank stock, or other securities bearing interest, and at their discretion for the advantage of the parties interested, to be called in and re-invested, so as to produce the best annual income. The testator then gives all the dividends, interest and profits of *241said residue so invested to his wife Eliza for life, for her sole and separate use; and further declares his wishes concerning the disposition of his estate, as follows: *“*And it is my will that immediately after the death of my said wife, the principal sum or amount of the said public or bank stock, or moneys at interest, shall be divided into two equal moieties or half parts, and 1 give one of the said equal moieties or half parts thereof to my sister, Mary Ann Black, if she shall then be living; but if she shall be then dead, I give the same to such child or children of hers as maybe then living, to be equally divided between or amongst them, if more than one, and to be paid to them, him or her, respectively, on their, his or her arrival to the age of twenty-one years; and the other of the said equal moieties or half parts, it is my will, shall be subdivided into five equal parts or shares and I give one of said fifth parts or shares to Martha Jane Palmer, sister of my wife, Eliza Shaw; one other fifth part thereof to my brother, Robert Shaw; one other fifth part thereof to my brother, Franklin Shaw; one other fifth part thereof to my brother, Alexander Shaw; and the remaining fifth part thereof to ' my brother, Henry Shaw; and in case my sister, the aforesaid Mary Ann Black, should die before my wife, and leave no child or children surviving at the death of my said wife, or in case of the death of any other of my said residuary legatees before my said wife, or under age, the part or share of such so dying of the residue of my estate shall go to the remaining sons of my father, David Shaw, to be equally divided between or amongst them, except his son John, the fourth eldest now living, who is hereby excluded from any part of my estate.”

This will was admitted to probate February 2, 1818, and at the same time Eliza Shaw, Alexander Black and Timothy Street, qualified as executors; of whom Black had the principal management. Street is dead, and the bill has been dismissed by consent as to his representatives, reserving the question of costs, until the sufficiency of Black’s estate be tested. Some time after the death of the testator, his widow Eliza and Alexander Black intermarried, whereby her office as executrix terminated. *242She died in May, 1849, and her husband, Black, died in September, 1849, leaving a will, of which defendant, Monefeldt, is executor.

After the death of the testator Shaw, and before the death of his widow Eliza, testator’s sister, Mary Ann Black, and his brothers, Franklin and Henry, departed this life without issue, but what was the order of their deaths, and whether they had attained full age or not, does not appear b}? the pleadings or evidence. In the same interval of time, testator’s brother, Alexander, also died, at mature age, and leaving five children. The question submitted to my decision is as to the right of these children of Alexander to take any portion of the residue of testator’s estate. The plaintiff claims that himself and Martha Jane Palmer are exclusively entitled to this residue, as the only residuary legatees who survived the widow of testator; whereas the children of Alexander insist that the legacies of the residuary legatees vested in right at the death of testator, although postponed in enjoyment, and liable to be divested in behalf of substituted legatees on future contingencies.

The law favors the vesting of estates, and words in a gift' referring to-the future are more readily interpreted to defer the enjoyment than the vesting of an estate. The will in the present case has the effect of converting the residue, which is the subject of controversy, into personal estate; and although there may be no great difference in principle upon the point of vesting between real and personal estate, yet as to the latter estate, the terms of gift need not be so strong, and a trust is more easily created. It is argued for the plaintiff that no gift is made by the testator to the remaindermen until the death of his widow, and.that the ultimate donees must fulfil the description of survivors at her death, or take nothing. The premises of this conclusion may be well disputed. The executors may be considered as trustees having the legal estate- by immediate gift, in order to enable them to sell, invest, appropriate the income for life, and then divide the capital. If the executors had the legal estate as trustees, there is no room for controversy; for clearly *243a gift of residue to trustees to pay the income to a tenant for life, and at her death to divide the capital among remainder-men, vests an interest in the remaindermen at the death of testator. The condition is annexed to the time of payment, and not to the substance of the gift, and is in nature of *debitum in presentí, solvendum in futuro.*Some of the cases on this point seem to decide, that where interest or dividends alone are the subject of bequest until a particular time, and the principal is then for the first time given or distributed, the capital is not vested; but Mr. Jarman (vol. 1, 765, n. e,) justly remarks, that “it must not be too readily assumed, however, that any given case falls within the principle, as the Courts have evinced no great inclination to extend it; and, in truth, in some of the cases of this class, the difference of expression was very slight.” If it be considered that there is in the present case an immediate gift to the executors as trustees of the whole estate, then words directing distribution at a future time among the remaindermen would not serve to postpone the vesting of the estate in them, which would occur without the superadded expressions. Granting that the immediate gift to the executors as trustees be do.ubtful, here the gift to the remaindermen is in the present tense. “ I give one moiety, &c-, I give one-fifth part,” &c.; and the direction for distribution and payment in future does not fairly import postponement of vesting. The will, fairly interpreted, gives the residue to the executors, in trust to pay the income to the widow for life, and at her death to.divide the capital among ascertained remaindermen, with certain provisions for substitution. But the terms of the gift to the remaindermen are not here as in some of the cases, those alone directing division and distribution at a future period. Our case of *Bunch*vs. Hurst, 3 Des. 273, may be advantageously consulted upon the general question of vested and contingent estates. In *Bankhead*vs. *Carlisle,*i Hill, Ch. 357, testator, after devises to his children, gave to his wife during life or widowhood, the residue of his estate, and proceeded: *“*which said property I wish and devise, at the marriage or death of my beloved wife, to be equally *244divided among my children as above named, with one exception, &c.” Gideon, one of the sons, survived testator, but died in the lifetime of the widow. It was held that Gideon’s interest in remainder was vested and transmissible, that the direction to divide among the children was substantially a bequest to them, that Gideon having a present capacity at the death of the testator, to take whenever the possession should become vacant, had a vested interest. It is hardly necessary to remark, that the liability of an estate to be divested, upon the happening of some future contingency, does not hinder the original vesting; indeed, it is a circumstance in favor of the immediate vesting, that the testator has expressly given over the legacy to another, in the event of the legatee dying under certain circumstances. *Murkin*vs. *Phillipson,*3 Myl. and K. *257.*

In *Packham*vs. *Gregory,*4 Hare, 396, a testator gave to trustees the residue of his estate, to be put out at interest, upon good security, and to pay the interest and proceeds thereof to his wife for life or widowhood; and from and after her decease or marriage, he directed his executors to pay and divide the whole of the money so directed to be put out at interest into and among all his nephews and nieces equally, except three who are named, within six months after they should become entitled thereto. One of the nephews survived the testator, but died without issue during the widowhood of testator’s wife. V. C. Wigram held the representative of the nephew so dying to be entitled to his share. He argued that the words *“*pay and divide,” on the death of a tenant for life, gave a vested interest, except where upon the whole instrument they served to designate persons who must answer a particular description at a future time, or not be otherwise entitled to take benefit from the gift; and that the direction to the trustees to pay and divide the fund within six months after the legatees should become entitled, merely allowed time for the discretion of the trustees and the convenience of the estate, and for those purposes only, and did not postpone the *vesting :*and that if upon the whole will it appears that the future gift is only postponed to let in some other inter*245est, or as the Court has commonly expressed it, for the benefit of the estate, the interest is vested, notwithstanding the enjoyment be postponed. He remarks: “ To avoid this construction, which treats the legacies as vested, the surviving legatees must contend for a construction which might be attended with the consequence, that if one legatee should die during the tenancy for life, leaving issue, that branch of the objects of testator’s bounty would be excluded. I will not, without reason, adopt a construction which would or might be attended with such a consequence. The consequence of disinheriting issue is one ground on which the Court seeks, if it can, to avoid a construction attended with it.” The reasoning of V. C. Wi-gram on the general doctrine appears more at large in *Leeming*vs. *Bherratt, 2*Hare, 14. In this latter case he cites and recog-nises the case of *Barnes*vs. Allen, 1 Ero. C. C. 181, where testator gave the residue of estate to his wife for life, and afterwards to their children, and if she should die leaving no child at her death, he willed that his trustees should transfer the securities in which his estate should then be vested to his two brothers, and if either brother should die, to the survivor. Both brothers died in the lifetime of the wife of the testator; but it was determined that this substituted interest of the brothers was transmissible to their representatives, although there was no gift to them, except in the direction to transfer. These cases seem to justify me in holding that the interests of the remain-dermen under this will are vested.

All the remaindermen, however, are not put by the testator in the same predicament concerning the substitution of legatees upon contingencies. One moiety of the residue is limited to Mary Ann Black if she should be living at the death of the widow, or if she should be then dead leaving children, to her children, and if she should be then dead without children, to the remaining sons of David Shaw (except John) to be equally divided between them. She died before the widow of testator, without leaving children. It was argued for plaintiff that remaining sons of testator meant his sons or son surviving his *246widow; but I think the term “remaining” is used in connection with the exclusion of John, and means only the other sons of David Shaw, besides John, who may be living at the death of Mary Ann Black. Admitting that the tendency of modern decisions in England and in this country is to restrict the term survivors to its natural and technical meaning, it may be well questioned whether the numerous cases quoted in argument, belonging .to the class of *Cripps*vs. *Wolcott,*4 Mad., 11. have any application to the present case. The words remaining except one, naturally mean others besides the excluded individual ; and no case requires us to give to the words the force of the term survivors, with reference to a remoter period of vesting. According to my construction, at the death of Mary Ann Black, one-half of the residue vested in the other sons of David Shaw, father of testator, except John, who is expressly excluded. I have already said that I am not informed by the pleadings and evidence which of the sons of testator’s father were living at the death of Mary Ann Black, and the Master must inquire into this matter.

The other moiety of the residue is limited in fifth parts to five.persons named, after the death of the widow Eliza as life tenant, or in case of the death of any of them before said widow, *or*under age, then to the remaining sons, except John, of the father of testator. I have no difficulty, under our decisions in *Waller vs. Ward,*2 Speer, 786; *¡Scanlan*vs. *Porter,*1 Bail. 427; *Bostwiclc*vs. *Lawton,*1 Spear, 258, in holding that *or*in this limitation must be construed *and,*and of course, that the estates otherwise vested-in the remaindermen, as to the latter moiety, were divested only in case any of them died before the life tenant *and*under age. *Miles*vs. *Dyer,*5 Sim. 435, (7 E. C. C., 484,) is an instructive case, as well in relation to the vesting of estates as to the conversion of *or*into' *and.*

The shares accruing to the other sons of David Shaw, upon the contingency of Mary Ann Black dying in the lifetime of the widow, without leaving children, and of any other residuary legatees dying under age in the lifetime of the widow, differing *247in this respect from the original shares bequeathed to them, are not liable to be divested upon any contingency, and must be distributed as their absolute estates. *Hill*vs. Hill, 1 Strob. Eq. 6.

It is ordered and decreed that one of the Masters make the inquiries and take the accounts upon the principles stated in this opinion. At and since the hearing, various orders were passed in this case, and I leave the parties to apply at the foot of this decree for such others as may be necessary.

The complainant appealed' on the grounds :

1. Because it is respectfully submitted the death of the widow of testator was the period of gift, division and payment, and there was no vesting before that event, and consequently no interests were transmissible to the representatives of those who did not survive her.

2. Because the legacy to Mary Ann Black did not vest, and there was, therefore, no such accrual of shares at her death to the remaindermen, as placed them beyond the contingencies contemplated by testator.

3. Because on intention, the testator did eg tingencies in the provision for the limitatio it is not a case where *“*or ” should be cons con-

4. Because the complainant, being th# Shaw who survived the testator’s wido whole of his brother’s estate, and it sho creed.

*Martin,*for appellant.

*Pressley, Spratt,*contra.

The opinion of the Court was delivered by

Dunkin, Ch.

This Court is content with the conclusion and general reasoning of the Chancellor.

As to the moiety of the residue given to Mary Ann Black : whether this legacy be vested or contingent, the will expressly provides for the contingency, which has happened, of her death *248before the tenant for life without leaving children surviving the tenant for life; and in that event this moiety is limited over, in equal shares, to the remaining sons of testator’s father, except the fourth son, who is particularly excluded. The decree discusses the construction of the phrase “remaining sons,” &c., in reference to this moiety only, adjudging that it means the other-sons, except John, living at the death of Mary Ann Black;' and leaves it to implication that the phrase has a parallel meaning, in the case of the death, of one of the sons under the circumstances mentioned in the limitation over. To avoid misconception, it may be well to express this implication. If one of the four sons, to whom four-fifths of the other moiety were bequeathed in equal shares, died under age and in the lifetime of the widow, his share passed, by the limitation over, to the the other sons of testator’s father, except John, living at the death of such son. If any of these four sons attained full age or survived the widow, his share, originally vested and absolute, remains unimpaired by the limitation over.

It is ordered and decreed that the decree be affirmed and the appeal dismissed.

Joi-inston, Dargan and Warhlaw, CC., concurred.

*Appeal dismissed.*