#### The Trustees of Eliza L. Rutledge, et al. v. The Adm’x. of Jane Rutledge, et al.

Under a limitation in a marriage settlement of property to husband and wife, and to the survivor for life} and after the decease of both, to the issue of the marriage, if any; but, if none, or should such issue die during the live? of husband and wife, or the survivor, then to the survivor; it was held that the children of the marriage took under the settlement vested interests, as they were successively bom, not dependant on the event of surviving their parents.

The issue of a child who died in the life time of the surviving tenant for life, will take equal shares with the children of the marriage, as they are alike comprehended under the description of *issue*of such marriage.

Where the will directed that the property given to the devisees respectively, should at the death of the testatrix be valued; and if it should there appear that their portions were unequal, that any devisee, having an excess, should give a bond for the payment of it to the devisees of smaller value, and that the proportion of the testatrix’s estate devised, should remain liable to,'and charged with, this burthen; — a bond so given by a devisee, was held to be chargeable primarily on his general assets, and not upon the devised estate, until their failure.

*Before Ms Honor Chancellor JOHNSON, at Charleston, May*1836,

The pleadings involve several distinct subjects of controversy's *202between these parties, and to avoid confusion, and the necessary obscurity growing out of it, I purpose to consider them separately beginning with the conflicting claims arising out of the marriage settlement of Jane Harleston and Edward Rutledge.

In 1793, John Harleston, in consideration of an intended mar riage between his daughter, the said Jane, and the said Edward Rutledge, conveyed by deed, to William Harleston, Edward Harleston, and Nicholas Harleston, two lots of land in Charleston, and a negro woman called Dye, and covenanted to pay them 2000 guineas, to be laid out in slaves, to be held in trust, for the joint use of the said Edward and his intended wife, Jane, and the survivor of them, for life; “and after the decease of both the said Edward and Jane, then to and for the use of such issue, as she, the said Jane, may have by the said Edward Rutledge, to be divided amongst them, share and share alike, if more than one; but if it shall so happen, that there should be no issue of the said marriage, or if such issue should die during the lives of the said Edward and Jane, or of the life of the survivor of them, then to the use of such survivor, his or her heirs and assigns, forever.” The intended marriage was áccordingly had, and solemnized, and the *2000*guineas were advanced, and invested in thirty-seven negroes, which with their issue and increase, now amount to sixty-six in number, as appears from exhibit A., filed with defendant’s answer.

The immediate issue of the marriage were seven children: Elizabeth H., Jane S., Jane H., Edward, John H., Sarah R., and Nicholas H. Of these, Jane S. died in May 1796; Jane H. in August 1799; and Sarah R. in 1804; all of them intestate, unmarried, and without issue; their father and mother both surviving.— Edward, the father, died in 1811, leaving his wife Jane, and his children, Elizabeth H., Edward, John H., and- Nicholas H., surviving. Of these, Elizabeth H. died in 1815, intestate, unmarried, and without issue. John H. died in 1822, also intestate, unmarried, and without issue. Edward, the son, died in 1S32, intestate, leaving a widow and six children, parties to this suit. Nicholas H. died on the 7th November, 1835, intestate, leaving a widow, but no child. On the 11th of November, 1835, five days after her son Nicholas H,, died also Jane, the mother, intestate, leaving *203no other issue of her body surviving, hut the six children of Edward, the son.

On the marriage of the said Nicholas H. with Eliza L. Bryan, the widow, who has survived him in *1831,*by a marriage settlement, of which the complainants are the trustees, he covenanted in the event which has happened, amongst other things, to settle the estate to which he might be entitled under the marriage settlement of his father and mother, to the use of his intended wife, for life, and in the event of her dying, without leaving issue, remainder as to one moiety, to the use of his own right heirs, as to the other moiety, remainder to the right heirs of his said intended wife.

The complainants, the trustees of that settlement, and who sue in the behalf of Eliza L., the widow of tho said Nicholas H., insist, that under the true construction of the marriage settlement between Edward, the father, and his wife Jane, each and every of the immediate issue (children) of that marriage, on being bom, became entitled to a portion of the settled estate, corresponding with their numbers, subject to open and let in subsequent issue, and liable to bo defeated by the death of both Edward, the father, and Jane, the mother, without any issue of their bodies living at the time ofthe death of the survivor. On the death of Jane S. in 1796, they therefore insist, her interest vested in Edward, her father, under the provisions of the act of 1791. That on the death of Jane H. in 1799, and of Sarah R. in 1804, their interest was distributable under the act of 1797, equally between the father and their surviving brothers and sisters. That on the death of Edward, the father, in 1811, the interests which he had acquired in the estates of his deceased children, in the manner above mentioned, were distributable between his widow Jane, and his surviving children, in the manner provided for in the act of 1791. That on the death of Elizabeth H. in 1815, and of John H. in 1822, their interests, as well as that derived through their deceased father and brothers and sisters, as from the marriage settlement of their father and mother, were distributable equally amongst their mother and surviving brothers, Edward and Nicholas H. The possession, in all cases, being postponed to the death of Jane, the mother. *204That the interest of Edward in the estates exhibited as above from his father and brothers and sisters, as well as his interest under the settlement between his father and mother, vested in his widow and children, on his death in 1832, and that the interests of Nicholas H., acquired in like manner, passes under his marriage settlement, he having died in 1835.

On the other hand, it is insisted, that the limitation of the estate settled to the issue of the marriage was contingent, and depended on the event of the issue surviving both Edward, the father, and Jane, the mother, and that the six children of Edward, the son, being at the time the event happened, the only persons in being, falling within the description of issue of the marriage, are entitled to the whole estate.

The limitation in the deed is to the use-of Edward Rutledge and his intended wife, Jane, and the survivor, for life, “and after the decease of both, the said Edward and Jane, then to and for the use of such issue as tbe said Jane may have by the said Edward, to be divided amongst them equally, share and share alike, if more than one; but if it should so happen that there should be no issue, or if the issue should die during the lives of Edward and Jane, or of the life of the survivor, then to the use of such survivor,” &c; and the question is, whether the children of the marriage took under it vested interests as they were successively born, subject to open and let in subsequent issue, in proportion to their numbers, or whether it was contingent, and dependant on the event of the issue surviving both the said Edward and Jane.

The policy of the law is opposed to tying up estates on contingencies, as unfriendly to the general interests of the community; and hence the inclination of the court in all cases of doubtful construction to regard the estate created, as a vested, rather than a contingent interest. But there is no positive prohibition against creating an estate entirely contingent as distinguished from a ves ted interest, and whether it be the one or the other, must depend on the intention to be collected from the. instrument, whether a deed or a will, out of which the question arises.

One of the rules, by which to ascertain whether an estate is vested or contingent, is that laid down by Lord Longhborough, in *205Monkhou.se v. Holme, 1 Bro. Ch. Ca. 298. When tlie time is not annexed to the form, but the substance of the gift, the interest is contingent. In illustration of it, he remarks, that if the day is certain, it is vested; .but when uncertain, the true question will be, “whether it is in the nature of a condition!” for if it is conditional, then, in the very nature of the thing, the time is annexed to the substance of the gift, as in case of marriage puberty, or of any other situation in life, without which the donor would not have made the gift. That was a case when thb testator gave to his Wife the use of the interest and produce of ¿6800, during her life,to be raised out of his personal estate; and from and after her decease, he gave ¿2100, part of the ¿6800, to his nephew, J. M., who died in the life time of his wife, and it was held that J. M. took a vested interest. Skey v. Barns (1 Merv. 335) is a further illustration of the rule. There, a testator devised to his daughter E., for her-separate use, the interest on funds directed to be vested in real and government securities; and after her decease the principal to be divided amongst all her children, and the children of a deceased child. The portions of sons to be paid at twenty-one, and of daughters at twenty-one, or marriage; and in case she should have no issue, then over. The daughter died leaving a husband and four children, one of whom died under twenty-one, intestate, and without issue; and the question was, whether she took a vested interest in her portion of the legacy. Sir William Grant, then master of the rolls, held that the shares of the children vested immediately, though liable to be divested by their all dying, without issue, under twenty-one, the contingency (the death of the mother without issue) on which they were to be divested, not having happened. They, therefore, continued vested, and the share of the deceased child dying under twenty-one, passed to her representatives. The mere limitation over on a contingency, does not, in itself, prevent the interest from vesting, if the words of the bequest are, in themselves, sufficient to carry a vested interest. Bromhead v. Hunt, (2 Jacob and Walker, 459,) is to the same effect. There the testator directed that the residue of his estate should be invested in funds to the use of all his children; and that a certain portion of it should be held upon trust, after the death of his daugh*206ters, for the benefit of all and every the children of his said daughters, in equal parts, shares and proportions, and on the event of either of the daughters dying unmarried and without issue, then over. One of the daughters married and had issue, three children, two of whom died in her life time, and then it was held that the deceased children took vested interests, which passed to their representatives.

Does time enter into the substance of this gift? Is it in the nature of a condition on which the issue are to take? I think not. According to the dispositions of the deed the estate is limited— 1st. To Edward and Jane for their joint lives, — 2d. To the survivor for life, — 3d. Remainder to their issue to be equally divided amongst them, if more than one, — and 4th. In the event of there being no issue, or the issue dying in the life time of the said Edward and Jane, remainder to the survivor in fee'. Now, although the time of division is postponed to the death of the survivor of Edward and Jane, the father and mother, there is nothing that indicates the intention of the donor, that the interest of the issue should not vest until then, or that the issue living at the death of the survivor only, should take. The time does not enter into the substance of the gift; it is not made a condition on which they are to take. On the contrary, the gift to the issue is positive, if there are issue, they are to take without condition, limitation, or restriction, except on the event which has not occurred, (the death of all the issue in the life time of the said Edward and Jane, or the survivor of them,) and for what purpose postpone the vesting in interest? On the birth of issue, they became, as it were, heirs apparent to the fee. They were preferred, and took precedence to the father and mother, and of necessity the fee became vested in interest in them, though not in possession.

The objections to this conclusion are, that there was no one in esse' at the time of the execution of the deed, falling within the description of issue, and therefore none can take but those who can bring themselves within that description at the time when the estate vests in possession.

The cases before referred to are an answer to these objections. They are both examples of limitations over to *persons not in esse,**207under which they took vested interests, and clearly it is enough, that the persons to whom the estate is limited in remainder, are distinctly ascertained, if, in other respects, the limitation is a vested remainder. In what respect does a limitation to A for life, remainder to his son B, now living, in fee, which confessedly gives B a vested remainder *eo instanti,*differ- from the case where the remainder is limited to the first son of A, hearafter to he born, except that the vesting of the interest must, of necessity, be postponed until the birth of a son? The person, in the one case, is as well ascertained as in the other. The son to be born when he comes into being, is equally capable of taking, and all the reasons for its vesting, that apply in the one case, exist in the other. — Fearne on Rem. 217, 312-3.

The limitation here is generally to the *issue*of the marriage of Edward and Jane, and regarding the estate as vested from the birth of issue, the question arises, whether the six children of Edward, the son living at the death of Jane the surviving tenant for life, are not entitled to take under the description of *issue,*equally with the children, the immediate issue of Edward and Jane.

The death of Jane, who survived, is designated as the time, when the interests vested in possession, and partition was to be made— necessarily all falling within the description of issue up to that time, are entitled to an equal participation in the estate, and that grand children come within that description, is a question that cannot admit of a doubt. The cases of Wyth v. Blackman, (1 Yes. 125;) Davenport v. Hanbury, (3 Yes. 259,) and Freeman v. Paisley, (3 Ves. 421,) and Dalzo v. "Welch, (2 Simons, 319,) cited at bar, are to the point; and so it is ruled in Purcell v. Purcell, recently in the Equity Court of Appeals, in affirmation of the judgment of Chancellor Johnston. The children of Edward, the son, living at the death of Jane, the surviving tenant for life, take equally with the children of Edward and Jane; for notwithstanding the estate vosted in the first born child of'Edward and Jane, yet it divested as to the proportions of those, who answering the description of issue, afterwards came into being before the determination of the previous life estate, and they take jointly, notwithstanding the different times of vesting, and that whether they took as joint ten*208ants or tenants in common. — Feame 313, and the cases there cited.

It follows then, that the estate is distributable into thirteen equal portions, of which each of the children of Edward, the son, is entitled to one, and the several and respective legal representatives of each of the seven deceased children of Edward and Jane, also take one. The interests which Edward, the father, acquired by the death of his children, in his life time, was of course distributable at his death, amongst his widow and surviving children, in the proportions prescribed by the act of 1791; but the children of Edward, the son, as the only lineal descendants of Jane, the mother, are entitled to all the interests which vested in her, whether derived through her husband or her deceased'children.

The bill also prays for the partition of certain real and personal estates, devised by Ann Elizabeth Harleston, the mother of the said Jane Rutledge, to the said Jane, and her said husband, Edward Rutledge.

The testatrix died in 1805, and by her last will she devised to the said Jane and Edward, a house and lot in Charleston, on the north side of Tradd-street, for their joint use and occupation, during their joint lives, and to the use of the survivor for life; “and on the death of such survivor then to the present and future issue of the said Jane and Edward, and to their heirs,” &c. “equally divided between them, if more than one.”

By another clause of the same will, the testatrix also gives to the said Jane and Edward, her slaves Cupid, Charles, Nelly, and Bess, with their present and future issue and increase, (except a girl called Molly,) “for their joint lives, then to the survivor for life, then to the present and future issue of the said Jane and Edward, equally to be divided amongst them, if more than one; but if it should so happen that there should be no issue alive at the time of the death of the said Edward or Jane, (whichsoever may first happen,) then it is my intention that the survivor shall take the whole property hereby bequeathed.” The negroes mentioned in this clause, with the increase which passes under it, now amount to seven in number, and are described in the defendants exhibit C.

*209At the death of the testatrix, Edward and Jane had only three children living, Elizabeth H., Edward and John H., and that Nicholas H. was the only child of the marriage born thereafter; and the same question is raised on the construction of this will, that has been before considered in relation to the marriage settlement, and is of course concluded by the opinion expressed. There is some diversity in the lauguage used in the two instruments; but on the question, whether they gave vested or contingent interests to the issue, they are in effect the same; and the rule must be the same, with this difference, however, in the results. The settlement extends to all the children of Edward and Jane. — The will only to those who were alive at the death of the testator, and those born subsequently, including the children of Edward, the son.

By the same will, the testatrix also gave to Elizabeth H., one of the daughters of the said Edward and Jane, the moiety of a plantation on Goose Creek, formerly the property of Mr. Huger, and a negro wench called Sarah.

Elizabeth H., the legatee, died in 1815, intestate, leaving her mother and her brothers, Edward, John H., and Nicholas, her next of kin, surviving; and it is not questioned that her estate vested in them, and is now distributable equally amongst their legal repi'e-sentatives. From the defendants answer it appears that the wench Sarah was disposed of by the testatrix in her life time, and that her increase and issue are distributed according to the directions of her will. It will not be necessary, therefore, to make any order on that subject.

The testatrix, by another clause of the same will, directs that her house and lot in Tradd-street, devised to the 'said Edward and Jane, and all the other estate devised to her three children, the said Jane Rutledge, Sarah Read, wife of Dr. ¥m. Read, and Eliza Corbett, wife of Thomas Corbett, ■ should be valued at her death by three persons, and if the property devised to either should exceed the value of the property devised to either, of the others, then the de-visee who should be found to possess a larger estate than either of the two others, should be bound to pay such deficiencies to the de-visees of smaller value, until the estate be equalled amongst the three children; and for securing the payment, the devisee liable, as *210aforesaid, should enter into bonds for the payment of such excess to the deficient devisees, within three years after her decease, with interest; and that the *“proportion of her estate devised should remain liable to, and be charged with this*burthenAfter the death of the testatrix, a valuation of the estate was made in conformity with these directions; and it appeared that the estate devised to Jane, exceeded that devised to the other children so far, that her portion was chargeable with ¿6270 12 2 1-2 in favor of Mrs. Read, and with ¿6-in favor of Mrs. Corbett; and thereupon the said Edward and Jane, entered into bonds to them respectively, conditioned for the payment of these sums; large balances still remain due on both these bonds; and one of the questions submitted in the case is, whether these balances are chargeable on the general assets of the estates of Edward and Jane, or on the particular estate which they took under the devise; and it becomes important, because if chargeable on the particular estate, it will diminish by that much the estate, on the division of which the widow of Nicholas H., the *cestui que trust*of the complainants, is entitled to participate, who has no interests in the general assets of their estates.

The bonds I think, are chargeable primarily on the general assets of the estate of Edward and Jane Rutledge; and if these fail, then, and not until then, on the devised estate. This would not be doubted, if the will had prescribed the condition that Edward and Jane should not be entitled to life estates on the property devised, unless they paid so much money to Mrs. Read and Mrs. Cor-bett. They were not obliged to accept the legacy; but if they did, they must take on the terms of the will. The money paid, would be regarded as the equivalent prescribed by the testatrix for the legacy. It is provided, however, that the estate devised should remain liable to, and charged with, the payment of these bonds; and hence it is concluded, that they are chargeable on that particular fund in the first instance; but it is obvious that by this provision the testatrix intended only, that it should remain a security for the payment of the bonds, notwithstanding the strong terms used.— The bonds it will be observed, ai-e payable at the end of three years, and ought then to have been paid; but there is no provision that Edward and Jane, should be at liberty to raise the funds by *211tbe sale of any portion of the estate; nor if they had paid them, that the sums advanced should be a charge on those entitled to the estate in remainder. The limitation over to the issue, (for it is the estate limited over to the issue of Jane and Edward, by the clauses of the will before recited,) is unincumbered by any charge of this sort. Again. The bonds are a portion of the legacies to Mrs. Read and Mrs. Corbett; and the idea that they are chargeable on this particular fund, is utterly inconsistent with the liability of Edward and Jane; for in that case, if the fund had failed, so must the legacy. As between Edward and Jane, and also their issue, and Mrs. Read, and Mrs. Corbett, the bonds are a lien on the estate; but theyare liens which Edwd. and Jane are bound to discharge, on accepting the legacy for life, and their assets are primarily liable.

David Johnson.

The defendants appealed on the following grounds:

1st. That under the marriage settlement of Edward and Jane Rutledge, on the death of the survivor of them, the negroes included therein, vested in the defendants, the grand children, the only surviving issue of the marriage; and that no part thereof vested in the legal representatives of N. H. Rutledge.

2nd. That under the will of Mrs. Elizabeth Harleston, the same construction should prevail, and the grand children be exclusively entitled to the property devised.

3d. That the house and lot in Tradd-street, and the negroes devised by Mrs. Elizabeth Harleston, to Edward and Jane Rutledge,

. are primarily liable to the payment of the bonds, to Dr. Read and Mr. Corbett, according to the charge imposed on the property, by the testatrix; and that the Chancellor erred in decreeing that the said property was only liable thereto, after the general assets of the estates of Edward and Jane Rutledge were exhausted.

4th. That the decree was in other respects erroneous, and should be reformed.

H. A. Desaussuee, defendant’s solicitor.

The complainants submitted to the Appeal Court:

1st. That by the true construction of the marriage settlement *212of Edward and Jane Rutledge, the persons claiming under it, and now before the court, take *per stirpes,*and not *per*capita.

2d. That they take *per*stirpes, andnotjper capita, under the will of Mrs. Harleston.

3d. That the bonds of the tenants for life, taken for the over-plus of the legacies, received by them under the will of Mrs. Harleston, are exclusively chargeable on them.

M. King, complainants’ solicitor.

The decree of Chancellor Johnson was affirmed by the Court of Appeals.