[Present, Chancellors Rutledge and Mahshadl.J

#### Elias Lynch Horry, and Henry Deas and Margaret his wife, *vs.*Thomas Horry and Ann his wife.

The Court may supply words omitted in a deed, providing for children, to give effect to the intention. But the intention must be clear, and apparent on the face of the deed. It would be too hazardous to insert words on conjecture that they were accidentally omitted.

THE complainants filed their hill in this Court, setting forth that Mrs. Elizabeth Branford, grandmother of complainants was possessed of two lots of land at the cor - *116ner of Tradd and Meeting streets; that she joined her husband, the late William Branford, in conveying the said land to F. Rose and John Miles, in fee, on the trusts . „ . . and to the uses rollowing, viz : To the use of Wm. Bran- ^or<^ and wife during life, and to the survivor for natural life, in case their children Elizabeth and Ann, should be both living at the time of the death of the surviving parent, to them jointly. But in case of the death of either of the said children before the death of the surviving parent, then to the surviving child for ever; and in case of the death of both children before the death of the surviving parent, then if there should be any other subsequent issue to that issue, or in default of such, to the surviving parent absolutely.

JANUARY, 1802.

That William Branford died, leaving alive his said widow and said daughters.

That his said daughter Elizabeth married in 1770, Elias Horry, by whom she had issue, the complainants E. L. Horry and Peggy Horry,now Mrs. Deas. That the daughter Ann married Thomas Horry in 1771. That Elias Horry died 11th Feb. 1785. That Mrs. Elizabeth Horry died in 1785, leaving her will, dated 10th June, 1785, by which she devised all her estate to her three children, who are the complainants.

That Mrs. E. Branford shortly after the death of her husband entered into the possession of her house, and had' the use of it till her death, on 24-th March, 1801. That soon after Mrs. Branford’s death, Thomas Horry, (defendant) claimed the whole lot of land and house aforesaid, in right of his wife, who he contends is alone entitled to the same, as she survived Mrs. Branford *j*whereas complainants insist that it could n ever from any equitable construction be inferred that by the said trust deed, the issue of the deceased daughter were intended to be deprived of the share of said house, due to their mother, had she been living at the time of the death of the surviving parent.

That said Elizabeth Horry attaining 21 years, and having issue, she was *cestui que*upe of a joint estate in re-*117inainder, upon the death of said Elizabeth Branford 5 and that the same was severed and passed by the saidresiduary clause of her said will. That complainants have applied to Thomas Horry and F. Rose, heir at law of said F, Rose, surviving trustee, to concur in having the house and lot partitioned or divided in severalty according to their several rights, and one moitty given to complainants. That defendant has refused to comply, and F. Rose is un» willing to act without the sanction of the court. The bill prays for a division of house and lot, and equal distribution thereof be allotted to complainants.

The defendants in their answer admitted all the facts stated in the *bill;*but they insist that they are exclusively entitled to the house and lot in question, under the deeds referred to by the *complainant;*the said Ann being the surviving daughter of Wm. Branford and his wife 5 and that this was the opinion of Mrs. Elizabeth Branford, the mother, who *informed*these defendants of *it;*and this perhaps was the consideration which induced her to bequeath her estate principally to the complainants. And defendant also understood, that for some time the complainants gave the same construction to the said deeds, and made no opposition to the claims of the defendant under the said deeds.

The following is an abstract of the deed on which the question in this case arose. It was a deed executed on the 23d May, 1754, by Wm. Branford and Elizabeth his wife, to Francis Rose and John Miles, in fee, but on the trusts and to the uses hereinafter stated.

The deed recited that Elizabeth Branford was seized in fee of certain lots of land on the north side of Tradd street (and describes them) under the will of her uncle, Benjamin Savage, dated 26 April, 1750.

That Elizabeth Branford being so seized, intermarried with Wm. Branford, and that they then had issue, two daughters, Elizabeth and Ann Branford.

*118Whereupon, in consideration of 10s. and of the love. and .-.flection William Branford and- Elizabeth his wife to th 'ir two said children; and for settling said lots of la id to the uses therein declared, they the said W. B, an<l Elizabeth his wife, did* “ grant, bargain, sell, alien, remise, release, and confirm to F. Rose and John Miles, and their heirs and assigns for ever, (being in their possession under a lease) all the two lots of land, &c. (No. 8Ü S,) with the houses, &c.

To have and to hold said lots, &c. to the said Rose and Miles, their heirs and assigns, upon the trusts and to the uses and purposes therein mentioned and declared, that is to say:

1st. For the use ofW. Branford and Elizabethhis wife, during their joint lives'.

2d. To the use of the survivor.

Sd. On death of the survivor, to the use of Elizabeth find Ann Branford, the said infants, their heirs and assigns for ever, in case they should both be living at the decease of the survivor of them the said W. B. and E. his wife. “ But in case either of them the said Elizabeth Branford and Ann Branford, the infants, should die before the survivor of them, the said W. B. and E. his wife, then at the decease of the survivor of them, the said W. B. and, E. his wife, to the only proper use and behoof of the sur-' y Ivor of them the said E. Branford and Ann Branford the infants, living at the decease of the survivor of them the said W. Branford and Elizabeth his wife, and to the heirs and assigns of such survivor of the said E. and A, Bran-ford the infants, for ever.”

But in case neither of them the said E. and A. Bran-ford, the infants, should be living at the death of the survivor of them the said W. B. andE, his wife, yet, if said' E. B. (the wife ofW. B.) should leave other issue of her body, begotten by said W. B. and living at the decease of the survivor of the said W. B. and E.' his wife, then to fhe only use and behoof of such other issue for ever. In *119default of such issue, to the use of the survivor of the said W. B. and E. his wife

*Signed by*

W. BRANFORD,

Elizabeth Branporb.

In the presence of

Samuel Perronneau &

Thomas Lamboll. ■

This deed was followed by the execution of another deed, by the said Elizabeth Branford, on the 27 th May, 1754, before Peter Leigh, the then chief justice of the colony, by which she renounced her inheritance in the said ots of land, in the form then in use-to the purposes of the trust deed.

The cause came to a hearing. Mr. Desaussure and Mr. Pringle argued for the complainants.

The construction of trust deeds must be governed as in wills, by the intention, which is the great guide.

Fearne’s Devises 304, 5. 2 P. Wms. 478-(note) 3 Vo sey, junr. 732.

Fearn. Cont. Rem. 124, 156. 4th Ed. 343, &c.

1 Fonblanque 395, 6, 434, 438.

The court will construe a settlement according to the intent of the parties, though the literal expression be otherwise.

3 Bro. Chan. Cases, 569, Woodcock vs. Dorset, which is strongly applicable to this case.

Cro. Car. 185. Fearn. Ex. Dev. 53. Spalding vs. Spalding.

A. devised land to his son John, and the heirs of his body, after the death of Alice, the devisor’s wife. And if John died, living Alice, then his (testator’s) son William shall be his heir.

John died living Alice; but he left issue. Question-If the issue should take or William.

The court construed it to read, “if John died without' issue, living Alice.”

*120Judgment for John’s issue.

j y^ris 230 — King vs. Mellin.

Lord Hale cites and approves the above case in Cro. _rl Car. 185. He says that in that case it was ruled by all the court that it was an absolute estate tail in the first son, as if the words had been, “ if he died without issue living, the wife.” For he could not be thought to intend to prefer a younger son before the issue of the eldest.

See 3 Bro. Chan. Rep. 253 — (note) Cholmondeley vs. Meryck.

The court supplies the words *u*dying without issue,” to effectuate the intent in a settlement.

2 Yesey, 195, 6, 7. Targus vs. Puget.

The court will, to effectuate the manifest general intent, raise an estate tail, notwithstanding the express estate devised for life, and no longer.

2 Vesey, 225,232. Robinson vs. Robinson.

In the great case of Coryton vs. Hellier, determined by Lord Hardwick, the words v if he should so long live,” were added, upon full argument — and upon the nature of the thing, though it was not a necessary implication.

See 4 Bro. Chan. Cas. 441 to 460 1. Lytton vs. Lytton.

In Smith vs. Camelford, 2 Ves. junr. 704, speaking of the case of Adams vs. Adams, the Lord Chancellor says, “ the justice of the case required that the children defrauded by a gross imposition of the law, should be restored to the right they lost.”

“ Issue under marriage articles claim as purchasers; but under a will they are only volunteers.” 1 Fonbl. 410, 411.

Every *ceslul que*trust, whether a volunteer or not, or be the limitation under which he claims with or without a consideration, is entitled to the aid of a court of equity, in order to avail himself of the benefit of the trust.

1 Fonbl. 412 — (note) 3 P. Wms. 222. 1 P. Wins. 426, 7. Hewetvs. Ireland.

Provision by deed, for daughters, to be born, shall extend to daughters then bom.

*121Husband and wife had issue a daughter, and executed a deed for securing 600Z. in trust that wife should have the interest during life; and afterwards in trust that the 600/. should be paid to such daughter or daughters as shall be begotten by husband on wife. If no such daughter, then fo the husband.

The daughter *born at*making the deed, shall take.

See also Talbot’s Cases, 30,1. 1 P. Wms. 234. Ken-tish vs. Newman.

Articles for settlement — equity supplied the words, “ if the wife die without issuej” else the money would have gone over from the issue to other relations.

In the performance of a trust, the chancery has power to alter the disposition of the party on emergent accidents which he did not *foresee;*and which, if he had foreseen, he would in all probability have settled his estate otherwise. 2 Fonbl. 199. 2 Feeman42.

White vs. Barber. — Ambler 701. One devises to his son Thomas, and if he dies under 21, and testator’s wife shall be encient at his death with other child or children, then to such at 21. But if no such, then over to his nephews Cham and Barber.

Two sons were born after the will, and in the life of the testator. Held by the judges and the chancellor, that the children born after the will should take, notwithstanding the defect of expression.

See same case reported in *S*Burr. 2703,

It was twice ably argued, and all the objections made which ingenuity and learning could furnish.

Newland vs. Shephard. 2 P. Wms. 193, and Peat vs. Powell. Ambler 388, are strong cases of supplying words. See Fonnereauvs. Fonnereau. 3 Atk. 315, 318.

Settlements are reformed according to the recital. 1 Ve~ sey, jun. 170,1.

A mistake in a will corrected by the intent. 4 Vesey, 51, *S.*

There are many cases of elder children being construed *122younger, and vice versa, to do equity and justice among them.

See 2 Vernon 528, 530. Chadwick vs. Dolman*

Approved by Lord Talbot. Cases Temp. T. 95.

1 P„ Wms. 244, Beale vs. Beale. 2 Atk. .456. He-neagevs.Hunloch; 2 Vesey 198. Teynham vs. Webb; note in 2 Vesey 203. Duke vs. Doidge.

In this last case, the eldest son was considered as younger son, to give effect to the deed.

2 Vesey 210, 11. 2 Bro. Ch. Rep. 38,47.

Portions in a settlement after mother’s death, to grow due and payable at 21, or marriage, &c. — * One of the daughters having after 21, married, had issue, and died in life of her mother, her portion shall go to her representatives, and not to her sister.

1 Vesey 209, 210. Emperor vs. Rolfe.

Great stress will be laid on the words used in the deed, *a*to the use of Elizabeth and Ann Branford, the said infants, their heirs and assigns for ever, in case they should both be living at the decease of the survivor of them the said William Branford and Elizabeth his wife.”

But the cases are clear on this point. See Beale vs. Beale. 1 P. Wms. 244, 5, 6.

Provision was made by deed for younger children who should be living at his death. A daughter was born after his death. She shall come in and take a share, being construed to be living.

Sir Robert Burdett vs. Hopegood. 1 P. Wms. 485,6..

One devises, ifhe leaves no son at the time of his death, to J. S. The testator dies, leaving his wife *priviment encient*with a son. This posthumous son is a son living at the testator’s death; andj. S. not entitled.

In 2 Bro. Ch. Ca. 320, 1, the lord chancellor was evidently of the same opinion, against the master of the rolls.

1 Vesey 85. Millar vs. Turner. See the case óf Ar= cher Smith, decided in this court.

The words were — -that on his widow’s departing *thh**123life or marrying, bis “ whole estate real and personal, should be divided among all my sons and daughters that shall be then alive share and share alike.”

One daughter died before her mother, leaving children. They took under the words sons and daughters.*

See also the case of Drayton and Drayton, decided in this court in 1793. The court went great lengths to provide for grand childi*en, excluded by the strict words of the will. (See 1st vol. of these Reports, p. 324.)

*124The case of Doran vs. Ross. 1 Vesey, junr. 57, 8, will be relied on by defendants. But even there, the chancellor said, “ if the recital contained any thing to which this phrase stood in contradiction, I might correct the phrase as has been decided by former cases.

Literal adherence to the words of the deed will exclude the complainants from any share in the house and lots in question;' but it is manifest that the parents providing for their children, meant to provide equally for them, and did not mean to exclude the children of one of the daughters who might die before the surviving parent. The words, “ without leaving issue” must have been omitted by accident, in the clause providing for the case of the death of one of the two daughters ; and the cases will warrant the court in supplying them.

Mr. Ward argued the case for the defendants.

He relied on the literal provisions of the deed, which he contended were too clear to leave any doubt, or leave room for construction to supply any alleged omission. But no notes of his argument could be procured.

*

 Geobge Smith made a will on the 17th Feb. 1782, by which he devised to his wife — “ the use of all his estate, real and personal, during her-widowhood and no longer.” And that on his widow’s marrying or departing this life, his whole estate real and personal, should be equally divided share and share alike among all my sons and daughters that shall be then alive.” Also, that his children remaining unmarried, should *receive an*education and maintenance out of his estate ; and that his children should not receive their share of the estate, “ till they shall respectively attain the age of 21 years, in case their mother be married or dead as aforesaid.”

He also gave authority to the executors to sell the estate, if desired by his wife.

Afterwards he made a codicil, by which he added another executor, and desired that if his wife should be unable to act as executrix from sickness or otherwise, that his estate should be sold at public auction, and one third ofthe money given to his wife, and the remaining two thirds to be distributed equally among his children when they should arrive atthe age of 21 years.

The testator died on the 17th June, 1784, leaving his will in full force.

His widow and executrix qualified, hut all the business was done by $Ir. Smith, the brother and executor.

Most of the estate was sold ¡ some still remains.

The testator left several children. One daughter married Archer Smith, and died after her father and before her mother, leaving two children. The mother is since dead.

The bill is filed by Archer Smith for his wife’s share of the estate. The executor states the doubt of his right, and the surviving brothers insisted that as his wife died before her mother, she had no right to any portion under the will, though she had attained 21.

The court said it would not bear an argument.

It had been repeatedly decided (in case of Dodson, &c.) that“ sons and daughters,” will extend to grand, children to prevent their beinp; cut off.

Chancellor Rutledge

delivered the decree of the Court.

William Branford and Elizabeth his wife, by deeds of lease and release, conveyed to certain persons, a lot of land in trust for the use and benefit of the said William and Elizabeth, during their joint lives, and after the death of either of them, to the use of the survivor, during the natural life of such survivor; and after the death of the survivor, to the joint use and behoof of their daughters Elizabeth and Ann Branford, their heirs and assigns, in case they the said Elizabeth and Ann should both be living at. the death of the survivor of them the said William and Elizabeth, but in case either of them the said Elizabeth and Ann should die before the survivor of them the said William and Elizabeth, then at the decease of the survivor of them the said William and Elizabeth, to the ■inly use and behoof of the survivor of them the said Eliza-*125*bcth*and Ann, at the decease of the survivor of them the said William and Elizabeth, and to the heirs and assigns of such survivor of the said Elizabeth and Ann for ever.

William Branford died many years ago. Elizabeth the daughter married, had issue the complainants, and died. Elizabeth the wife of Wm. Branford, and mother of Elizabeth, survived her daughter, and died lately. Ann the other daughter, survived her mother, and is still living.

For complainants it was contended that they are entitled to a moiety of the land in question. That the same rules are to be observed in the construction of* trust estates as in wills, and that in decreeing of marriage articles or settlements, the court will regard the end and consideration of settlements, and will go so far as to supply words that have been omitted to effectuate the intention of the parties, and will construe marriage articles against the words, for the salce of the intent. That in the present . case, the intent of the parties was to give to each of the daughters and their issue, a moiety of the land settled.

It was insisted for the defendant, that the words of the deed were plain and unequivocal; that there was no ambiguity in the expression; and that the intention of the parties was manifest through the whole deed, and there was nothing contained in it to shew that the intention was different from the words. In support of the argument of the counsel on each side, an infinite number of cases on wills and marriage settlements were cited. Most of them have been reviewed and examined, and the general conclusion to be drawn from them is, that the intention of the parties is to prevail. The counsel have argued altogether from analogous cases; for there are none to be found in the boolcs which exactly tally with the present. The only question in this case, is whether the complainants as representing their mother are entitled under this deed to any part of the land Settled therein. Trusts being the creation of equity, and one of the peculiar branches of the jurisdiction of this court, they are viewed with a favorable eye. In marriage settlements, the most favorable exposi*126tion will be made of words, to support the intention of the parties ; nay, even in voluntary settlements, if the words lean more strongly to one construction than the other, it will likewise prevail. It is however the intention ox the parties, appearing on the deed, that always governs the court in construction; not the arbitrary conjecture of the judge, though founded on the highest degree of probability ; for if once you wander in the wide field of conject, ure, it is impossible to say where the line will be drawn. No two cases would perhaps receive the same adjudication.

This cannot properly be called a marriage settlement, in which all the issue of the marriage generally are provided for, and consequently being *considered as*purchasers, the most liberal construction is always made *;*but it is a voluntary settlement made by the parents some years after marriage, of a small portion of the mother’s estate for the joint benefit of the two children whom they then *.had;*in which from the very words of the deed the chance of sur-vivorship was actually contemplated.

It is only necessary to read the clause of the deed to determine the *question;*and nothing but the ingenuity of counsel could have raised a doubt. The trusts created, were for the benefit of the husband and wife during their joint lives, and the life of the longest liver of them, and after the death of the survivor, for the joint use of the daughters and their heirs; so that a joint estate only was given to them in the first instance, in case they should both be living at the death of the father or mother, but if either of them should die before such survivor of father or mother, then the estate is to go to the surviving daughter living at the death of the father or mother. It was insisted that the words without issue, ought to be inserted, in order to carry into effect the intention of the parties. How does it appear in any part of the deed to be their intention ? If the not inserting the words, without issue, is an omission, it is unfortunately in the most material part of the deed; but whatever e'emj ecturc might be made how *127it happened, we cannot go out of the deed, but musttake it *as*it now appears. The words are plain & certain j a joint estate is given to the daughters in the first part of the deed which necessarily implies the benefit or chance of survi-vorship, and the latter clause of it gives the estate to the daughter who shall be living at the death of the father or .mother. Taking the whole of the deed therefore into consideration, and construing one part by another, we are of opinion that the complainants are not entitled to any part of the estate in question, and therefore that the bill must be dismissed, with *costs;*but that the whole thereof vested in the defendant’s wife, as the surviving daughter, agreeably to the express plain words of the deed, and the manifest intention of the parties thereto.