#### S. P. & *J. E. M. Templeton*vs. *Wm.*& *John Walker.*

A father by the same deed made separate gifts of negroes to his three daughters: the gift to P. was to her “ and her future heirs of her body;” and the deed further provided, that, “if either of the above named girls should die without any lawful heirs of their body, her property shall go to the surviving childrenP. died leaving issue, two children, and two grand-children, issue of a deceased daughter:— *Held,,*(1) that the issue of P. took as purchasers, and (2) that they took *per stirpes,*— not *per capita.*

Whenever, by the terms of description, in a devise or grant, resort must be had to the statute of distributions for the purpose of ascertaining the objects of the gift, resort must also be had to the statute to ascertain the proportions in which the donees shall take, unless the instrument making the gift indicates the intention of the donor that a different rule of distribution shall be pursued, *(a)*

*Before*Dargan, Ch. *at Barnwell.*

Stephen Phillips, on the 17th December, 1815, executed a deed in the following words, to wit,

“ Know all men by these presents, that I, Stephen Phillips, of the said State and district, do, of my own free will, and for love to my children, as follows, viz: my daughter, Polly Phillips, I do give unto her, *and her future heirs of her body, two negro*girls, Darkes and Sealey. I do give unto my daughter, Flower *544Phillips, one negro boy, named Peter. I do give unto my daughter, Elizabeth Nix, one negro boy, named JefTree. Also I do give unto my three above mentioned daughters, one negro woman, Abigail, and her future increase; which said negro woman and increase, if any, after the death of my wife and myself, is to be equally divided, among my above mentioned daughters. It is to be understood, that the above mentioned property is to remain in my possession, or my wife’s, till after our deaths, then to go as above mentioned — the above property is *to my said daughters and the heirs of their body.*Now, if either of the above named girls *should die without any lawful heirs of their body,*her property shall go to the *surviving*children, *and so on.”*

Polly Phillips intermarried with Alexander Templeton, and upon the death of Stephen Phillips and his wife, the property given by the deed to Polly Phillips, passed into the possession of her husband.

In Í847, Polly departed this life, leaving surviving her, her said husband, and two children, (who are the complainants,) and two grand-children, the issue of a deceased daughter, (who are the defendants).

On the 2d of August, 1849, the negroes given by the deed to Polly, had increased to twenty in number, and on that day, Alexander Templeton, supposing the limitation in the deed to be too remote, and that his marital rights had attached, executed a deed, whereby he released all his interest in the negroes, to the complainants and the defendants, to be divided amongst them in the following proportions, that is to say, one-third to the complainant, Stephen P. Templeton, one-third to the complainant, John E. M. Templeton, and the remaining third, to be equally divided between the defendants, William and John Walker, who were infants.

The bill was for partition according to the terms of the deed of Alexander Templeton.

The answer stated the infancy of the defendants, and sub-mi ted that Alexander Templeton had no interest in the negroes *545after his wife’s death, and that the title to the said negroes should he determined according to the provisions of the deed of Stephen Phillips, under which, (as they were advised) the heirs of the body of Polly Phillips took *per capita*and not *per stirpes.*

DaRgan, Ch. After holding that, under the deed of Stephen Phillips, the limitation over ‘to the surviving children’ was good, and that the ‘ heirs of the body’ of Mrs. Templeton took as purchasers, after a life estate in their mother: added: “ If this be so, then the deed of Alexander Templeton can have no effect in varying their rights, and the next question occurs, do the issue of Polly Templeton take *per stirpes*or *per capita ?*On the authority of *Campbell*vs. *Wiggins, Lemalcs*vs. *Glover,*and *Keitt*vs. Houser, I hold that the children and grand-children take *per capita,*and in equal shares. A case involving this point, *(Collier*vs. Collier) has recently been referred by the Court of Equity to the Court of Errors. Of course, the ultimate decision.in the case before me, must depend upon the decision in the Court of errors. For the present, I decide in conformity with my own views.”

“ It is ordered and decreed, that the complainants and defendants are entitled to the estate mentioned in the pleadings, to be divided among them *per capita.*It is also ordered, that the parties have leave to apply at the foot of this decree for such orders as may be necessary to carry it into effect.”

The complainants appealed, on the grounds,

1. That his Honor should have decreed that the limitation over, in the deed of Stephen Phillips, is too remote, and that, therefore, the defendants take the proportions given them by the deed of A. Templeton.

*2.*That even if the said limitation over be good, nevertheless, his Honor should have decreed, that the estate mentioned in the pleadings, be divided *per stirpes*and not *per capita.*

At May Term, 1850, the appeal was heard at Columbia, by *546the Equity Court of Appeals, and the following opinion thereon pronounced.

*Per Curiam.*— This Court is satisfied with the decree that the heirs of the daughters took as purchasers, which is drawn in question by the first ground of appeal: and it is ordered, that the decree on that point he affirmed, and the appeal dismissed.

It is further ordered, that this cause he sent to the Court of Errors (and docketed) for its judgment upon the question involved in the second ground of appeal; and to be heard in con-nexion with *Collier*vs. *Collier.*

Johnston, Dunkin and Daiigan, CC. concurring.

Upon the question involved in the. second ground of appeal, the case was now heard in the Court of Errors.

*J T. Aldrich*for complainants.

The quhstion is, do the heirs of Mrs. Templeton take per *capita, ox per stirpes 7*What mode did the grantor intend ? Clearly the proportions of the statute, because he describes them as *'‘heirs of the body,”*without repudiating the proportions of the statute; the description *“heirs of the body,”*compels a resort to the statute to ascertain its meaning. This *express*adoption of- the objects of the statute, unacccompanied by a 'repudiation of its proportions, amounts to an *implied*adoption of its proportions. When a person uses language which compels us to go to the statute for its interpretation, the inference is, that such person points to the statute as the exponent of his meaning, except in so far as he *expressly*repudiates it. The intention of the grantor was, that the heirs of Mrs. Templeton should take in the same way as the issue of an intestate. Why should not this intention prevail ? “ Because,” says Lord Eldon, in *Lady Lincoln*vs. *Pelham,*(10 Yesey, 175,). “it is better to adhere to a *settled*construction, than to come to a decision, having a tendency to shake that which forms a rule of construction, and which may in practice have been acted upon in many cases.” But there is no such “ *settled construction ”*in South Carolina. The presence of this case in *547the Court of Errors, is alone sufficient to show that the question is still *unsettled.*The true rule is, whenever the persons intended to take under a grant or devise, are so described as to compel a resort to the statute, to ascertain who they are, the statute must also furnish the proportions in which they are to take, unless the grantor or testator introduces into the grant or devise, some expression or expressions expressly repudiating the proportions of the statute. (2 Jarman on Wills, 47.) But the operation of this rule ceases, where the language employed creates no necessity for resorting to the statute for its interpretation. Thus where the gift is to “ children,” “ grand-children,” “ sons,” “ daughters,” &c., there is no necessity for a resort to the statute, and therefore no reference to the statute is to be implied from their use. The *legal construction*of these terms accords with their *popular*signification. But when the objects are described as *heirs, heirs of the body, issue,*and the like, a resort to the statute becomes necessary, for these are *technical*expressions, differing from their *popular*signification. The following cases are examples of expressions *repudiating*the proportions of the statute. *Thomas*vs. *Hole,*(Cases Temp. Talbot, 251,) is a leading case. There the words of the will are, “ to the relations of Elizabeth Hole, to be divided *equally*between them.” Lord King determined, “ that as the testator had directed the £.500 to be divided *equally*amongst them, he could not direct an *unequal*distribution,” (to-wit, the distribution of the statute,) “ and he accordingly decreed them to take *per*capitaThe same remarks are applicable to the case of *Leigh*vs. *Norburu,*(13 Yes. 339.)

No persons taking as *heirs of the body,*can take otherwise than as the statute gives it to *heirs of the body,*viz: *per stirpes,*unless the instrument under which they take points out a different mode of distribution; *Rowland*vs. *Gorsuch,*(2 Cox. 187.)

*Bellinger Sp Hutson,*contra.

(a)

*Freeman*vs. *Knight,*(2 Iredell’s *Eq. 72.)*If a bequest of personal property be to heirs simply, they take in the proportions prescribed by the statute of distributions ; but as the testator directs the property “ to be equally divided” among them, the division must be *per capita,*the children of the deceased daughter talcing each an equal share with the children of the testator. A.

WaRdlaw, Ch.,

delivered the opinion of the Court.

Stephen Phillips, by voluntary deed, gave to his daughter, *548Polly Phillips, afterwards Polly Templeton, *“*and her future heirs of her body, two negro girls, Darkes and Sealeyto his daughter Flower Phillips a negro boy named Peter; to his daughter Elizabeth Nix a negro boy named Jeffree, and to his three daughters, above mentioned, a negro woman named Abigail ; and, after some provisions not now in question, proceeds to declare “ the above property is to my said daughters and the heirs of their body — now if either of the above named girls should die without any lawful heirs of their body, her property shall go to the surviving children, and so on.” Polly Temple-ton died in 1847, leaving her husband, Alexander Templeton, two children, the plaintiffs, and two grand-children, the issue of a deceased daughter, the defendants, who would be the distri-butees of her estate if she died intestate. The husband, Alexander Templeton, on 2d August, 1849, executed a deed,-whereby he released all his interest in the negroes, then twenty in number, given by the deed of Stephen Phillips to his daughter Polly, to the plaintiffs and defendants, in the proportions of one-third to each of the plaintiffs, and of one-third to the defendants to be equally divided between them. The bill prays partition of the negroes, according to the scheme of this last deed.

The Court of Appeals in Equity has decided, on the construction of the deed of Stephen Phillips, that the issue of Polly Templeton took as purchasers, after her life estate; and has referred to this Court the single question, whether the property shall be divided amongst said issue *per stirpes*or *per capita.*

It is well said by Lord Eldon, in *Lady Lincoln*vs. Pelham, (10 Ves. 175,) a case somewhat analagous to the present, that “ it is better to adhere to a settled construction than to come to a decision having a tendency to shake that which forms a rule of construction, and which may, in practice, have been acted upon in many cases.” Our first inquiry, then, should be, whether such words as are now in question have received a *“*settled construction ” in this State. In the case of *Campbell*vs. *Wiggins,*(Rice’s Eq. 10,) in December, 1838, it was decided by three Chancellors against the opinion of the Chancellor on the circuit, that, under *549a grant by Act of Assembly to the “ heirs at law of John Taylor and Blake Wiggins,” all who could bring themselves within the terms of the description were entitled to take *per capita;*and the general doctrine was announced that *“*when the persons intended to take under a grant or devise are described as a class, without designating the proportions in which they are to take, all are equally entitled who can bring themselves within the description.” In *Lemacks*vs. *Glover,*(1 Rich. Eq. 141,) in January, 1845, where the limitation was to the “ heirs of the body ” of a tenant for life, the question as to the proportions in which the designated persons should take the estate, was referred to the ten Judges in the Court of Errors, but no authoritative decision was attained — five Judges, including one of the majority in *Campbell*vs. *Wiggins,*being of opinion that the distribution should be regulated by our Act of 1791, and five Judges being of opinion that the estate should be equally divided amongst all the objects of the gift. In *Keitt*vs. *Houser,*(M. S. May, 1846,) the Equity Court of Appeals decided according to the case of *Campbell*vs. *Wiggins,*but some stress seems to have been laid upon expressions introduced into the gift indicating equality of participation among the objects of bounty. In *Rochell*vs. *Tompkins,*(1 Strob. Eq. 114,) where an estate was limited, upon the death of a wife, without appointment and without living issue, to her right heirs, it was held,' that our statute of distributions should ascertain as well the persons who were to take, as the proportions in which they should take; and there the husband, as statutory heir, took one half of the estate, and the other distributees, who were numerous and in different degrees of relationship, took shares *jure representation^ ;*but, in that case, the question seems not to have been argued by counsel, nor considered by the Court. In *Seabrook*vs. *Seabrook,*(McM. Eq. 201,) the question underwent some discussion, but the case was determined upon principles not affecting the question. After this review of our cases on this subject, I think we may pronounce that, notwithstanding the doctrine of *Campbell*vs. *Wiggins*may have been the law of this State for about six years, it was greatly shaken by the case *550of *Lemacks*vs. Glover, and that we have not any *“*settled construction ” of such terms of description as are employed in the present case, forming a rule of property, and that we are at liberty to adopt any rule on the subject which we may suppose will best subserve the intention of donors and the policy of the State. . This conclusion is greatly confirmed by the consideration that our Act of 1791 is, and has long been, extensively known and highly approved by the people of this State; and that this legislative will, as it was called in the argument, has always had more influence in regulating testators and other grantors in the distribution of property than the rule of *Campbell*vs. *Wiggins,*which was little known, except to members of the profession, and could not have been acted upon in practice in many cases.

Whatever may be the doctrine of the English cases on this subject, the state of our law and of public policy justify the rule that whenever we are compelled by the terms of description, in a devise or grant, to resort to our statute of distributions for the purpose of ascertaining the objects of the gift, we must also resort to the statute to ascertain the proportions in which the donees shall take, unless the instrument making the gift indicates the intention of the donor that a different rule of distribution shall be pursued. In England, leaving out of view such exceptions as grow out of estates of gavelkind and coparcenary, &c., the heir is a single individual, designated by the common law, and when the term heirs is employed, it means persons who are to take successively as heir, and not persons who are entitled to an equal, or even a common participation; but our Act of 1791 is an Act of descents as well as distributions, and determines at once who shall be the heirs of the real estate of an intestate and the distributees of his personalty.

The term heirs is inapplicable to the succession to personal estate, and even as to real estate, we have no other heirs except the *hceredes facti*of our statute of distributions *(Seabrook*vs. *Seabrook).*As remarked by that eminent jurist, Chancellor HaRpeb,, in *Lemacks*vs. Glover, in an argument that has nca‘1 . *551exhausted the subject: “ In England, when the term heirs or heirs of the body is taken to mean a class of persons, these cannot, in any manner or respect, take as heirs or heirs of the body. Whether construed children, issue or descendants, next of kin, &c., they must he always different persons from the heirs: not so with us.” In the case under consideration, the Court of Appeals in Equity could not have attained the conclusion that the *“heirs of the body*” of the tenant for life took as purchasers, within the rules as to the remoteness of limitations, otherwise than by construing these terms to mean the descendants of the tenant for life living at the time of her death, or something equivalent. No one can take as heir of the body of another unless he fulfils the description, and is not only such a person as would take the real estate of that other under our Act of distributions, but likewise a lineal descendant. As we are obliged, then, to ascertain from the statute of distributions who are the heirs of the body, it is a logical consequence that we should look there also to ascertain their shares in the subject of gift. The statute is the exponent of the full meaning of the donor, unless he has declared a contrary intent, which is not pretended in the case before us. “ And this agrees with what the law supposes to be the rule of affection, by which children are preferred to grand-children and nearer kindred to the more remote.” (Per Harper, Ch. in Lemacks vs. *Glover.)*Certainly in all the cases on this point which have hitherto come before the Courts of South Carolina, the intention of the donors would have been more completely fulfilled by following the statute for the shares, and it is believed that such would he the result in a large majority of the instances that will occur in practice. A fertile mind may conceive cases of hardship from the operation of any general rule, but such hardship from the rule we are disposed to establish in this matter, may be avoided always by the careful expression of the whole intention of the testator. In *Lady Lincoln*vs. Pelham, where the gift was of *“*one-fourth to the children of A. and one-fourth to or among the children of B.” ; and distribution *per capita*was directed, Lord Eldon said, *"*I am not sure that my decision does *552not defeat the intention.” What was doubtful in that case, seems certain whenever there is a necessary reference to the statute to ascertain the donees. Most, if not all, of the English cases which hold that the distribution shall he *per*capita, where gifts are made to a class of persons, such as to children, grand-children, to A. and the children of B., to the next of kin of A., &c., *(Northey*vs. *Strange,*1 P. Wms., 340; *Blackler*vs. *Webb,*2 P. Wms., 383, are examples,) are not inconsistent with the rule we have adopted, for in them there is no necessary reference to the statute of distributions for any purpose. We do not go to the statute to discover who are children, next of kin, &c.; but we are obliged to look there to find out who are heirs of the body, descendants or relations entitled to take; and in the cases which actually occur, we commonly find them, not strictly a class, but individuals standing in various degrees of kindred to the intestate or first taker, and entitled to unequal shares of the estate.

It was strongly insisted, in the argument of this case, that wherever several persons take as purchasers under one gift, they must take *per capita,*and that no case can be found to the contrary. But where is the necessary connection between the ideas of purchase and equality ? Surely a testator might provide for unequal distribution among those taking by purchase; as by a gift to A. and the three children of B., so that A. should take one half, or by a gift to C. for life, and upon his death to his children then living, the eldest son of C. taking one half, however numerous such children may be. It is useless, however, to suppose cases, when examples may be found in the books. In 2 Jarm. 46, it is said: “ The statute of distributions not only determines the objects of a gift to ‘ relations,’ but also regulates the proportions in which they take, the gift being held to apply to the next of kin and the persons whom the statute admits by representation, the whole being taken *per stirpes,*not *per capita ;*that is, the property is distributable proportionably among the stocks, not equally among the several individual objects of every degree.”

In *Roach*vs. *Hammond,*(Pre. in Ch. 401,) on a gift by a testator of all his real and personal estate “for the use of his reía-*553tions,” it -was determined that those who would he entitled to his personal estate under the statute of distributions, and those only, should come in, and that they should, take in the proportions prescribed by the statute ; and the Lord Chancellor said it had been often ruled accordingly in this Court. See also *Masters*vs. *Hooper,*(4 Bro. C. C. 207;) *Devisme*vs. *Mellish,*(5 Ves. *525.)*

In *Stamp*vs. *Cooke,*(1 Cox, 234,) where testator directed the residue of his estate to be parted amongst his “ next relations, as sisters, nephews and nieces,” Sir Lloyd Kenyon, Master of the Rolls, held that distribution should be according to the statute, *per stirpes.*He said, *“*the* statute is not to be adverted to, when testator has himself laid down a different rule, but has that been done ?”

In *Rowland*vs. *Gorsuch, (2*Cox, 187,) SirL. Kenyon applied a similar rule to the words “descendants or representatives,” saying^, that no person, taking as representative, can take otherwise than as the statute gives it to representatives, i. e. *per stirpes.*See also *Booth*vs. *Vickars,*(1 Coll. 6;) *Cotton*vs. *Cotton,*(2 Bea. 67.)

It is now settled in England, that in a gift, “ next of kin” means nearest in kindred in degree, and implies no reference to the statute of distributions. *Brandon*vs. *Brandon,*(3 Swanst. 312 ;) *Elmesley*vs. *Young,*(2 Myl. & K. 780;) (8 Con. Eng. Ch. R. 227.) But the opinion prevailed there for a long timp, that next of kin meant such of the kindred as would be entitled to shares of an intestate’s estate, under the statute ; and while that opinion prevailed, the statute was also adverted to for the proportions of the distributees.- In the case of *Stamp*vs. *Cooke,*already cited, the Master of the Rolls said: If- the residue had been given to the next of kin, and the testator had stopped there, the statute would have been the rule to go by, and although nephews and nieces are not in fact so near as sisters, yet the fund would have been distributed *per stirpes,*according to the statute.” It is true, that in *Phillips*vs. *Garth,*(3 Bro. C. C. 64,) Mr. Justice Buller, sitting for the Lord Chancellor, determined *554that, where a testator left his property to he equally divided amongst his next of km, the subject of the gift should he divided *per capita*among the surviving brothers, nephews and nieces of the testator. It appears, however, from the remarks of Sir John Leach, M. R., in *Hinchley*vs. Maclarens, 1 Myl. *&*K. 27; (6 Con. Eng. Ch. R. 480,) that when the case of *Phillips*vs. *Garth*came before Lord Thurlow, by way of appeal, his Lordship expressed doubt as to the propriety of the decision, and that the appeal was abandoned upon a compromise among the next of kin, by which the property was divided among them *per stirpes,*and not *per capita*— and that Mr. J. Buller’s decision was doubted by Lord Eldon, in *Garrick*vs. *Lord Camden,*(14 Ves. 385,) and disapproved by Sir Wm. Grant, in *Smith*vs. *Campbell,*(19 Ves. 403,) and the Master of the Rolls refers these doubts and disapproval *to so much*of *the*decision as directs distribution *per capita.*

In the case of *Hinchley*vs. *Maclarens,*above cited, the testator gave the bulk of his property to his daughter, but directed that if she died before attaining the age of twenty-one, his property should be equally divided amongst his next of kin. The testator left surviving him his daughter, one brother, and two nephews and a niece, the children of two deceased sisters. — - The daughter died under twenty-one, intestate and unmarried. Sir John Leach determined that where the words *“*next of kin” were used *simpliciter*in a gift over, and without explanatory context, showing a different intention on the part of the testator, they must be taken to mean next of kin, ascording to the statute of distributions, and that the property must be divided, not *per capita,*but *per stirpes.*

Sir John Leach reiterated this opinion, upon a like state of facts, in *Elmesley*vs. *Young,*2 Myl. & K. 82, (7 Con. Eng. Ch. R. 270,) but his opinion was overruled by Commissioners Shad-well and Bosanquet, upon appeal, on the ground, however, that there was no reference to the statute, for the meaning of the words “ next of kin,” 2 Myl. *&*K. 780, (8 Con. Eng. Ch. R. 227.)

It is the opinion of this Court that, by the principles of the *555common law, by the reasoning of the English cases, and by our own law and policy, we are justified in establishing as a general rule, in cases like the one before us, that the partition shall be *;■per stirpes ;*and it is so ordered and adjudged in this case.

O’Neall, Evans, Wardlaw, Frost, Withers and Whit-ner, JJ., and Dunkin, Ch., concurred.