#### Sarina M. Barksdale, adminis’x, *vs.*James Macbeth and Wife, et al.

Testator bequeathed property to be, after the death of S., the life-tenant, “the absolute property of such of my children as may be then living, and the issue of such as may be dead, to be equally divided between them, and their heirs, administrators and assigns: *”*— Held, that the child and issue of predeceased children of testator, lining at the death of S., took equally and *per capita.*

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854.

Dargan, Ch. Thomas Barksdale, senior, by his last will and testament bearing date the 22d May, A. D. 1800, *inter alia,*devised and bequeathed as follows :

“I give, devise, and bequeath to my friends, Joseph Legare, Thomas Jones, Dr. Thomas H. McCalla, Dr. William S. Stephens, and Nathan Legare, and the survivor or survivors *126of them, and to the heirs, executors, or administrators of such survivor of them, a house and lot in Charleston, on Tradd street, purchased of Henry Collins Flagg and William Hazel Gibbs; also the following negroes,” (twenty-four in number, who are named ;) “ together with four hundred pounds, to be taken from the first crop that is made on my plantation after my decease, upon the special trust and confidence hereinafter mentioned, that is to say: In trust that the said Joseph Le-gare, Thomas Jones, Dr. Thomas H. McCalla, Dr. William S. Stephens, Nathan Legare, and the survivor or survivors of them, shall and will permit and suffer my daughter Sarina to have, take, and receive to her sole, separate, and peculiar use,, profit, and emolument, the yearly rent of the aforesaid house, and the use, work, profit, and labor of the said negroes, (who are named,) together with the four hundred pounds, during the term of her life, free from the control of her present husband, and not liable in any way to his, her, or their debts, or incumbran-ces; and in case my daughter Sarina should depart this life, then upon trust for the only proper use and behoof of such child or children of my said daughter, as shall be living at the time of her death. *But in case my said daughter Sarina should die without leaving any child or children, then and in such case in trust that all and singular the premises so bequeathed shall be the absolute property of such of my children as may be then living, and the issue of such as may be dead ; to be. equally divided between them,*and their heirs, administrators, and assigns, to be forever discharged from all future uses and trusts.”

Sarina, at the date of this will, was the wife of a Mr. Bon-neau, after whose decease, and after the decease of the testator, she. contracted a marriage with John W. Payne, now deceased. On her intermarriage with Payne, the parties executed a deed of marriage settlement, of which Thomas Barksdale, junior, was the trustee. All the property which Sarina derived under her father’s will, was embraced in the marriage settlement: the *127dispositions of which are of no importance in the decision of this case. It is only adverted to for the purpose of showing the relations of the plaintiff to the other parties. It does not appear that the property given to Sarina by the will of Thomas Barksdale, senior, or any part of it, was ever in the possession of the trustees named in the said will. But on the intermarriage of Mr. and Mrs. Payne, it went into the possession of Thomas Barksdale, junior, as trustee of the marriage settlement. On his death, his wife, Sarina Barksdale, became the administratrix of his estate, and thus succeeded to the possession of the trust estate. She continued in possession of, and managed the same, during the life of Mrs. Sarina Payne. The latter has recently departed this life, without children, or issue, and the estate is now to be distributed, or disposed of among the children and issue of the testator, Thomas Barks-dale, senior, according to the limitations of his will. The house and lot in Tradd street has been converted into cash, and stands in securities equivalent to cash, having been sold by an order of the Court of Equity under proper proceedings. There is no controversy about that.

The issue of Thomas Barksdale, senior, at the death of Sabina Payne, are as follows: Mary Barksdale, a daughter of said testator, his only surviving child. 2d. The issue of the testator’s deceased son, Thomas Barksdale, junior, namely, Mary Macbeth, wife of James Macbeth, Adelaide Huguenin, wife of 0. C. Huguenin, and Emma Julia Edwards, wife of George Edwards. 3d. The issue of the testator’s daughter Elizabeth Edwards, namely, the above-mentioned George Edwards ; and also Elizabeth Hammond, and Charles L. 0. Hammond, who are the children of a deceased daughter of the said Elizabeth Edwards, and consequently, the great grand-children of the testator, Thomas Barksdale, senior. All these persons are parties to the cause, and are confessedly entitled, each to some portion of the limited estate. The only question that is *128made is, in wbat proportion do the several parties in- interest take ? Do they take *per capita,*or *per stirpes ?*

The plaintiff, who is in possession as administratrix of Thomas Barksdale, junior, desirous of being relieved of her responsibilities, and incapable of having a legal discharge amid the conflicting claims of the different parties entitled to- the property, has filed this bill: in which she has brought all the claimants before the Court, and invokes its aid to discharge her of these responsibilities in a secure and proper manner. All the parties entitled are defendants, and they have all answered. On the part of Mary Barksdale, who is the only child of Thomas Barksdale surviving at the death of Sarina Payne, it is contended, that the division is to be made *per stirpes:*that the estate is to be divided into three parts: and that she is entitled to one third part; the issue of Thomas Barksdale is entitled to one third part; and the issue of Elizabeth Edwards to the remaining third. A.ll the other claimants contend, that the estate is to be divided *per capita;*and all the issue of the testator, including his great grand-children, the Hammonds, are each entitled to an equal share.

Eor a proper understanding of the case, I have thus stated in a brief, and, I trust, intelligible manner, the parties, the pleadings, and the issue. The only part of the will bearing on the question are these words : “ But in case my daughter Sa-rina should die without leaving any child, or children, then, and in such case, in trust that all and singular, the premises so bequeathed shall be the absolute property of *such*of my children as may be then living, and the issue of such as may be dead; to be equally divided between them, and their heirs, executors, administrators, and assigns,” &c.

I do not feel free from embarrassment in the decision of this case, nor is the range of discussion very wide. The case of *Campbell*vs. *Wiggins,*Rice, Eq. 10 ; that of *Lemaclcs*vs. *Glover,*1 Rich. Eq. 141; and that of *Keitt*vs. *Houser,*May Term, 1846, (unreported,) certainly support the *per capita*con-*129situation. But the authority of these cases was disregarded in *Templeton*vs. *Walker,*(3 Rich. Eq. 543,) and *Collier*vs. *Collier,*(3 Id. 555,) and is overruled, so far as the question was involved in the latter eases. I did not yield my assent to the judgment of the Court of Errors in those cases, (which were heard together,) principally on the ground, that it violated established principles. Eor I thought then, as I do now, that in such cases, it is not o'f so much importance what the rule should be, as that it should be stable. I consider the whole doctrine on this subject as set afloat by the decision. So far as the decision in the cases last cited, goes, it is authoritative upon me; and perhaps it would be safest to be govered by the analogies of those cases: for it is important, that the rule should not only be stable, but uniform and consistent.

The cases of *Templeton*vs. *Walker,*and *Collier*vs. *Collier,*are not precisely parallel to this. Eor here, the words describing the persons who are to take, are not such as are to be found in the statute of distributions ; so that it is not necessary to resort to the language of that statute to ascertain who are meant by the description. Yet I think there is an analogy. And the decision in those cases so far destroys the authority of the prior cases, as to leave me at liberty to decide as if there existed no other precedents than *Collier*vs. *Collier,*and *Tem-pleton*vs. *Walker.*

Equality in the distribution of estates among immediate descendants, and among those in the same degree of propinquity, is a natural impulse or principle of the human heart, when not disturbed or influenced by extraneous causes. It will hardly be denied, that a parent loves his children better than his grand-children, and these better than his remoter descendants. One loves his brother better than his brother’s children, and these better than his more distant collateral kindred. Thus, as the circle widens, or the distance lengthens, the tie is weakened. All the statutes of distributions are based upon this philosophy of the human heart. Eor in cases of intestacy, the *130law makes such a disposition of tbe intestate’s estate, as it presumes be would have done himself, if he had exercised his right of making his last will and testament.

If the testator, Thomas Barksdale, had said in his will, in unequivocal language, that his grand-children and great grandchildren should share equally in the distribution of the estate that he was disposing of, with the issue of his own loins, he had the unquestionable right to do so, and the law would give effect to his intentions. But if he has not so declared; if he has left it doubtful whether his grand-children and great grandchildren shall come in equally with his own children, I think the more natural interpretation should prevail.

Adverting to the clause in question, it can scarcely be said, that the testator has unequivocally expressed himself in favor of a *per capita*distribution. On the contrary, without travel-ling out of the terms employed, it is in my judgment very uncertain whether he meant to give to his children, and the issue of deceased children, equally as individuals, or equally in classes. In this uncertainty, arising from the ambiguity of the language, it is only by reference to principles founded in nature, that I am able to arrive at a conclusion satisfactory to my own mind. In my judgment, the testator intended that his children should take equally, if they all were living at the death of Sarina Payne: but if some should then be dead, leaving issue, such issue should take the share which their parent or parents would have been entitled to take, if they had been living at that period. And if the tomb could be made to “ ope its marble and ponderous jaws,” and the testator be heard thence to speak, such, I feel assured, would be his own construction : if, indeed, the affections which belong to us in this life, are retained in “ the spirit land.”

In the brief argument before me at the trial, some stress was laid on the words “ *equally*to be divided,” as favoring the *per capita*construction. These words afford no aid in the interpretation. For it is obvious, that they may as well import equal*131ity of division among the classes, as equality among the children and issue, considered individually; as was the case in *Oollier*vs. *Collier,*(5 Rich. Eq. 543,) and also in the case of *Beider*vs. *Felder.*The latter case arose on the construction of the fifth clause of the first section of the Act of 1791.

It is ordered and decreed, that the property in question be divided into three equal parts: that one third part be assigned to the testator’s daughter, Mary Barksdale; that one third part be assigned to the children of Thomas Barksdale, junior, namely, Mary Macbeth, Adelaide Huguenin, and Emma Julia Edwards, equally to be divided between them; and one third be assigned to the issue of Elizabeth Edwards, namely, George Edwards, Elizabeth Hammond, and Charles L. 0. Hammond : the one-half of the said last-mentioned third to the said George Edwards, and one-half thereof to the said Elizabeth Hammond and Charles L. 0. Hammond, equally to be divided between them. Each, party interested, may move at the foot of this decree for a writ of partition .to carry into effect its provisions.

It is further ordered and decreed, that the accounts of the plaintiff be referred to the master, and that he report thereon.

It is further ordered and decreed, that the costs of the suit be paid out of the funds of the estate.

The defendants appealed on the grounds

1. That by the terms of the will, the property mentioned in the pleadings should have been decreed to be divided amongst the surviving children of the testator and the issue of such as were dead, *per capita,*and not *per stirpes.*

2. That the decree is in other respects contrary to equity.

*Treville, McBeth,*for appellants.

*Dulces,*contra.

*132The opinion of the Court was delivered by

DunkiN, Ch.

If this will were for adjudication in Westminster Hall it may be conceded that the construction would not be regarded as doubtful. The testator declares that, on the decease of the life tenant without leaving a child, “ the premises bequeathed shall be the absolute property of such of my children as may be then living, and the issue of such as may be dead, to be equally divided between them, and their heirs, executors, administrators and assigns.” The rule in England as stated by the elementary writers, is this : “ Where a bequest is made to a person described as standing in a certain relation to the testator, and the *children*of another person standing in the same relation, as to my brother (A) and the children of my brother (B), the distribution is made *per capita,*and not *per stirpes,*in which case A takes only a share equal to that of one of the children of B.” Of course it is immaterial, and the distribution is the same where the objects of the testator’s bounty are his own children and grand-children. See 2 Jarm. on Wills, 111, whose positions are fully sustained by the authorities cited. Well settled as the rule seems to be, it has not been regarded as quite satisfactory, or as giving effect to the probable intention of the testator. It has accordingly been held that this mode of construction will yield to a very faint glimpse of a different intention in the context. Jarm. ut supra.

With some qualifications the rule has been recognized in this State. *Cole*vs. *Creyon,*1 Hill, Ch. 311, was a case in which the balance of the testator’s estate, after the determination of a life estate therein in his widow, was directed to be “ equally divided between Henry and Elizabeth Cole’s children and Alexander Creyón, viz., the offspring of Elizabeth Cole’s body, and no other, to be retained in the hands of my executors, until the age of twenty-one years, or days of marriage.” The widow being dead, the children of Henry and Elizabeth *133Cole filed a bill for partition against Alexander Creyón, claiming that each of them was entitled to an equal share with the defendant — and so it was decreed by the Chancellor, in conformity with the general principle which has been announced. In reforming this judgment the Court of Appeals (per Harper, Ch.) say, “ The cases sufficiently settle that if there be a bequest to the children of A, and the children of B, they take *per capita.*This rule, however, is entirely arbitrary, and I am not sure that if a different rule had been adopted, the intention of testators would not have been more frequently effected. The rule being settled must be adhered to,” &c.— The Chancellor then proceeds to show that the rule is inapplicable *where the title*of the *devisees*is to *accrue at different times,*as, if there be a bequest to an ascertained individual, and to a class of unascertained individuals (to be ascertained at any future time after the death of the testator,) it vests one-half in the said individual, and the other half in the individuals collectively when they are ascertained. In conformity with this exception it was ruled, that upon the death of the testator his nephew, Alexander Creyón, who was then *in esse,*took an immediate vested interest in a moiety of the estate, and that the other moiety was to be equally distributed among the children of Elizabeth Crayon alive at the-death of the life-tenant, when the eldest should attain twenty-one years of age.

In *Templeton*vs. *Walker,*3 Rich. Eq. 543, and *Collier*vs. *Collier,*id. 555, while the general rule was recognized, a modification or exception was adopted. It was held by the Court of Errors that “wherever the Court is 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 a 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 should be pursued.”

It remains only to inquire whether this case falls within the *134general rule, or can be properly classed within either of the modifications which have been thus adopted and approved.— The bequest is to such of the children of the testator as may be alive at the decease of the life-tenant, and the issue of such as may be dead, to be equally divided between them. The death of the life-tenant was the period at which the title of all the legatees accrued, and the title of none was ascertained until that time. It is not like *Cole*vs. Creyon, a gift to an ascertained person and a class of persons to be afterwards ascertained. No child of the testator took an immediate vested interest on his father’s decease, but could only take in the event that such child survived testator’s daughter, Sa-rina; and at that time the rights of all the issue of any deceased child were also ascertained and fixed.

Nor do the terms of description of the objects of testator’s bounty require the Court, as in *Templeton*vs. *Walker,*to resort to the Statute of Distributions to ascertain those objects. The terms are to “ such of my children as may be then living and the issue of such as may be dead.” This description demands no reference to the statute, nor would the statute shed any light upon the subject if the terms of the gift were of doubtful interpretation. See *Perdriau*vs. *Wells,*5 Rich. Eq. 20.

It was not contended that the context of the will afforded any evidence of a different intention in the mind of the testator from that which the terms of the bequest itself, technically, or legally, import. Of course the Court is not at liberty to travel out of the will and speculate upon the probable intention of the testator as deduced from the ordinary motives or feelings, which would influence mankind in the case presented. The testator has spoken, and the Court has no other province than to interpret his language. If the testator had contemplated the contingency which has occurred, and had intended a different distribution, he might have declared that in such event the issue of any deceased child should represent their parent, and take among them the parent’s share; but if, on the other hand, he *135Lad intended that, in such event, all the objects of his bounty should be placed upon an equal footing, he could scarcely have employed more appropriate words to manifest such intention than those here adopted; that it should, in such event, be the absolute property of such of his children as might be then living and the issue of such as might be dead, to be equally divided between them, and their heirs, executors, administrators and assigns. This is the language of the bequest, and the Court is not authorized to infer from it any intention that the distribution should be otherwise than *per*capita, so that each object of his bounty may share equally.

In reciting the names of the parties in the Circuit decree some inaccuracy occurred, not important in the discussion of the principle, but which it is proper to correct.

It is ordered and decreed that the Circuit decree be reformed so that, in the partition therein directed, the property be equally divided between Mary Barksdale, Mary Y. Macbeth, James R. Macbeth, William L. Macbeth, Catharine Macbeth, Mary Lee Macbeth, Sabina Macbeth, Edward Macbeth, Alexander Macbeth, Adelaide Huguenin, Anna Huguenin, Thomas Huguenin, Ella Huguenin, Cornelius Huguenin, Emma Julia Edwards, George Edwards, George Edwards, Jr., Charles L. 0. Hammond and Elizabeth Hammond, so that each one of the said parties shall take an equal share of the said estate, according to the principles of this decree. In all other respects the decree of the Circuit Court is affirmed.

Johnston and WaRdlaw, CO., concurred.

*Decree modified.*