#### Jesse Wessenger, et al., *vs.*A. M. Hunt, et al.

Where there is a bequest to one for life, “ and at her death to be equally divided amongst” a class of persons, as “ my children and grand-children,” all who come within the terms of description at the death of the tenant for life, whether *in esse*at the death of the testator or born afterwards, are entitled to take ; and, if there be nothing in the will indicating a *contrary*intent, they take equally and *per capita.*

BEFORE WARDLAW, OH., AT RICHLAND, JUNE SITTINGS, 1856.

This case will he fully understood from the circuit decree which is as follows:

"Wardlaw, Oh. George B. Hamner, Sr., of Mecklenburg county, "Virginia, made his will, bearing date November 17, 1834, the disposing clauses of which are in the following words:

“It is my will and desire that all my just debts be paid, and funeral expenses out of my estate, and all the residue thereof I give to my wife during her life, to be used for her use and benefit as she may think proper; and at her death it is my will and desire that the estate which may be then in being for her support be equally divided amongst my children and grand-children, except Howell Jeffries, son of my daughter Sarah, (as his uncle, Howell L. Jeffries, has promised to provide for him,) and my daughter Maria, (having given her as much as I intend her to have out of my estate.) It is also my will and desire that Samuel Jeffries, also son of my daughter Sarah, shall have no part of my estate at the death of my wife. It is my will and desire that my wife and my son, W. H. Hamner, shall have the management of my estate.”

*460The testator died soon after the date of h'is will, and the will was admitted to probate in Mecklenburg, May 18, 1835. "William H. Hamner assumed the management of the estate; sold property and paid the debts; and, as it appears by a return made to. the Court of Probates of Mecklenburg, December 21, 1885, there remained of the estate, after discharging all its debts, in the hands of said William H. Hamner, and of the widow Ann Hamner, ten slaves — Gloucester, Betty, Martha, Beverly, Sally, Edith, Armstead, Richard, Sam, Amos; two horses, four beds and furniture, and three hundred and thirty-five dollars and eighty-seven and a half cents in money. It is not alleged nor proved that William H. qualified regularly as executor of his father’s will, and it is probable that he avoided this, and with the view of saving from forfeiture under the Yirginia Statute referred to in *dole*vs. Broon, Dud. 7, and in *Reese,*vs. *Holmes,*5 Rich. Eq. 556, the life estate of his mother Ann, who contemplated removal of herself and slaves from Yirginia. She did remove with her slaves above named about the close of the year 1835, to Columbia, South Carolina, and thenceforth resided with her son, William H., who had previously become a resident householder of Columbia. She brought with her, two sons, Richard and James, and three daughters, Martha, (widow of William S. Lane,) Maria and Margaret. These were all the children left by testator except Nancy, wife of Reuben A. Puryear, who resided in Yirginia, George B., Jr., who resided in Tennessee, and William H. It is averred in some of the answers, that in Eebruary, 1836, the widow, with the consent of most of her children, on the application of George B., Jr., who was in necessitous circumstances, advanced to him certain chattels and money, greatly exceeding the value of his interest in remainder in testator’s estate, and that thereupon he gave to the acting executor an acquittance of all interest in the estate, which acquittance was afterwards accidently consumed by fire in and with a lawyer’s office and *461its contents. One of the sons, Richard, died intestate, and unmarried, October 5, 1836, leaving some personal estate, of which, according to the averment of some of the answers, William H. assumed the control without regular appointment as administrator. It is further averred concerning the slaves above named, that the widow, Ann, gave Armstead to George B., Jr., as part of the advancement to him, and that Gloucester died in 1836, and Amos died in 1837. Martha Lane and A. M. Hunt intermarried March 15, 1838.

Ann Hamner, widow and legatee for life of testator, died September 28,1838, and the children of testator who survived her were William H., George B., James B., Nancy, wife of Reuben A. Puryear, Martha E., wife of Alfred M. Hunt, Maria and Margaret; and the grand-children who survived were Howell Jeffries and Samuel Jeffries, sons of Sally, who predeceased testator; Sally, daughter of Nancy Puryear, and now the wife of William E. Morgan ; Elizabeth daughter of George B., and now the wife of Jesse Wessenger; Mary Frances, daughter of George B., and now the wife of Thomas P. Walker; and perhaps as alleged in the bill, and denied in the answer of Hunt and wife, William son of George B. At the death of testator his children and* grand-children were the same as at the death of his widow, except that his son Richard, survived him and predeceased her, and it is disputed whether Mary Frances was then in existence, and certainly William was born long afterwards. The daughter, Maria, and John C. O’Hanlon intermarried in February, 1839.

In March, 1839, a private partition was made of the estates of testator and of Richard Hamner among the children of testator, under the direction of the eldest son, William H., to which all assented, except George B., who was not consulted as it was considered by the others that he had been already overpaid ; and he, although he survived the partition more than three years, set up no disturbing claim. It is manifest *462that in this partition, the parties interpreted the will as giving the remainder to the children of testator, and contingently to grand-children whose parents might predecease the life tenant, and in the actual event entitling no grand-child to a share; and this construction is still urged in behalf of some of the parties. Of the particulars of this partition, we have a full statement in one of the answers, which is probably faithful but not proving itself. It is in evidence, however, by the admissions of the answers, and otherwise, that in this partition, Reuben Puryear and wife received their share of both estates, that Hunt and wife received Betty at the price of four hundred dollars, from the estate of testator and one hundred a.nd seventy-five dollars from the estate of Richard, that Margaret received Martha at the price of eight hundred dollars, and Sally, averred to have been given to her by testator, and that Beverly from testator’s estate and William, probably from Richard’s estate, were set apart for the use of James B., during life, to be distributed at his death, and these two slaves were delivered to A. M. Hunt on his agreement, to maintain for life the said James B., who was very imbecile in mind, but capable of rendering and actually rendering some useful service; and it may be safely concluded that William H., the head of the family, received fully his share. About the time of the partition, William H. Hamner gave bills of sale, acknowledging receipt of the price and warranting the title, to A. M. Hunt for Betty, to A. M. Hunt, for the use of James B,. of Beverly and William, and to Margaret Hamner of Martha.

On May 31, 1839, the daughter, Margaret, was married to Thomas Puryear, and she died Eebruary 12, 1845, leaving her husband and three children, one of whom is since dead. George B. removed from Tennessee to Lee or Baker county, Georgia, and died there in October, 1842, leaving a widow, since dead, and three children, of whom the two daughters ived with Hunt until they were respectively married in 1847 and 1852. Martha O’Hanlon died July, 1848, leaving a *463husband and three children, of whom two are dead; and her husband died in 1853, leaving a will whereby he appointed A. M. Hunt executor of his will and guardian of his surviving child, Margaret. William H. Hamner died in November, 1843, in Baker county, Georgia, without wife or children, leaving a will but not an estate sufficient to pay his debts in full. James B. Hamner, died intestate and unmarried, January 27, 1855, having no estate in possession at his death except the slaves Beverly and William. A. M. Hunt advertised for sale on sale-day in January, 1856, for the purpose of partition, the slaves Beverly and William, and thereupon this bill was filed January 5, 1856, for injunction and account.

The plaintiffs are Jesse Wessenger and Elizabeth his wife, Thomas P. Walker and Mary Frances his wife, and William Hamner, being the children of George B., Jr., with the husbands of the daughters, ■ and the defendants are A. M. Hunt and wife, R. A. Puryear and wife, W. E. Morgan and wife, Thomas Puryear and his children, Richard and William, Margaret O’Hanlon, Howell Jeffries and Samuel Jeffries. All of the defendants have answered, except Howell and Samuel Jeffries, against whom the bill is taken *pro confesso.*

It will be observed that there is no legal representative of any deceased party before the Court, although in regular procedure representatives of Richard Hamner, George B. Hamner, Jr., William H. Hamner and James B. Hamner, passing by the other decedents, should have been made parties. No objection, however, for lack of proper parties is suggested by the pleadings of defendants, and as representatives are required principally for the protection of the rights of creditors, and if there be such here they cannot be prejudiced, it is not my purpose to raise unnecessary difficulties, ■ or to avoid decision between the parties on the record so far as the materials of decision have been furnished.

At the hearing, no evidence was offered beyond the admis*464sions of the parties, except an inconclusive deposition taken by commission concerning the destruction of George B. Ham-ner’s release or acquittance, and it was mutually stated at the bar that doubtful questions of fact should be referred to the Commissioner for further examination and proof.

The first question in order, is as to the construction of the will; and that seems to me to be so settled by authority as not to require argumentation. The bequest of the remnant of the estate after the interest for life of the widow, is broadly to the children and grand-children of testator, in equal shares, some of these coming within the description, being expressly excluded. The terms children and grand-children are not words of art with technical meaning, and are to be interpreted in the popular acceptation, as descriptive of descendants from an ancestor in the first and second generations. A grand: child as completely sustains a definite relation to his ancestor, where his immediate parents are living, as when they are dead. In many instances the context demonstrates that a testator employs words in some deflected sense, and not in their natural meaning, but we are not at liberty, without support from the context, to conjecture some intention on his part at variance with his expressions; and in this will throughout there is no intimation that the testator did not mean what he said. Supposing then, that all children and grand-children come in for shares, the next inquiry is, as to the point of time when the members of these classes are to be ascertained, the death of testator, or the death of life tenant. The inquiry involves the shares of Richard, a child, and Mary Frances and William, grand-children. It is clear on authority that the children and grand-children of testator living at his death, took vested interests in the remainder, transmissible to their representatives, subject to dimunition by increase of the objects of bounty, or in other words vested estates, opening to let in all the classes who might come into existence before the period of distribution. Where a bequest is immediate to *465children as a class not individually designated, or to any other class, those of the class in existence at the death of testator are exclusively entitled, but if the bequest be of a subject to be distributed at a time *future to the death*of the testator, as at the death of an intermediate life-tenant, all to -whom the description of the class is applicable, who are in existence at the time fixed for distribution, are entitled to shares. It is palpable that all who take under this will, take aliquot portions, or *per*capita, grand-children with children equally. I am of opion that the representatives of Richard Hamner, and the children and grand-children of testator, living at the death of Ann Hamner, except those expressly excluded, Maria Hamner, Howell Jeffries, and Samuel Jeffries, are severally entitled to equal shares of the estate of testator “in being” at the death of the widow. *DeVeaux*vs. *DeVeaux,*1 Strob. Eq. 283; *McQ-regor*vs. *Toomer,*2 Strob. Eq. 51; *Orim*vs. *Knotts,*4 Rich. Eq. 340; *Barksdale*vs. *Macbeth,*7 Rich. Eq. 125 ; *Perdriau*vs. *Wells,*5 Rich. Eq. 20.

A further question in the construction of the will is as to the power of the widow in disposing of the life estate given to her. The gift to the widow, although restricted to her life, is in strong terms, “ to be used for her use and benefit as she may think proper,” and the limitation over at her death is only of “ the estate which may then be in being for her support.” These words in my judgment confer on the life-tenant right to use the *corpus,*as well as the income, for her own benefit and support; nevertheless her power over the *corpus,*being in the nature of a trust, is confined to the specified purpose of her proper maintenance. She could not sell and convey the estate to strangers except for this purpose, nor could she transfer the remainder, or any part of it, by gift, to one or more of the remainder-men Certainly she could surrender her life interest, or transfer the estate for the term of her life, with or without consideration, but her disposition of the fee is limited to the end of procuring support. The *466daughters -who received beds, and George B., Jx., who, as it is alleged, received much more valuable chattels, by the gift of their mother, and those claiming under these parties, must account for the value of the subjects of gift. Adult parties who consented to these gifts are bound, but the title of infants is unimpaired.

As to the estate of Richard Hamner, it is clear that as well what he died possessed of, as that which he derived from his father’s will, must be distributed in pursuance of our statutes for distributing the estates of intestates, and without reference to his father’s will. It follows that Martha and the Jeffries are not excluded from shares, nor Sally Morgan entitled to a share.

The informal partition of March, 1839, binds those who made it, those who received shares under it, and those who acquiesced in it, although themselves excluded, so far as the partition was full and final, It is my purpose to refer the matters of fact concerning this partition to the Commissioner, and I adjudge nothing definitely in advance of his report. It is not improper, however, to suggest for the guidance of the Commissioner that R. A. Puryear and wife, William H. Ham-ner, and Margaret Hamner, *prima*facie, have received all to which they were entitled: that Hunt and wife, and James B. Hamner, and John 0. O’Hanlon, received some shares, which must be considered in full, unless this presumption be rebutted by proof; and that it is a circumstance tending to show, I do not say conclusively, the acquiescence of George B. Hamner in the partition, that although living for three years and a half afterwards, he interposed no adverse claim, and that the partition is first questioned nearly seventeen years after it was made. If any of the parties concluded by the partition did not receive so much as they were entitled to, this cannot serve to enlarge the shares of parties not bound, although possibly it may increase the means of satisfying their legitimate claims. In like manner, I suppose that those who took *467benefit -under the partition are not liable to contribute for the satisfaction tof unpaid legatees, except to the extent of excess in the partition of their proper portions. A legatee who has received from an executor, or one acting as executor, no more than his own legacy, is not generally bound to account to another legatee who may have received nothing. Diligence in pursuit of rights is favored; and it is the policy of the State, pursued by its Courts, in avoidance of litigation, to uphold and foster arbitrations, compromises, private partitions and settlements. It may be questioned whether, even if Margaret received in the partition more than her lawful portion, her surviving husband is bound to account for her ante-nuptial debt, liability or breach of trust, not prosecuted against him during the coverture. The slaves Beverly and William were not parted except for the life of James B. Hamner. I repeat that these remarks are suggestive and not decisive.

It is ordered and decreed, that it be referred to the Commissioner to inquire and report concerning the facts of this case generally, and more particularly as to the alleged gift by testator of Sally to his daughter Margaret; as to the amount and value of the estate given to Ann Hamner for life, and how much thereof was in being at her death, and how much and to whom had been disposed of in her life by gift to George B. Hamner and others, or in any other mode; as to the disposal of said estate after the death of said Ann, and the subsequent and present condition and possession thereof; and specially as to the alleged partition thereof, concerning the parties acquiescing therein, and the portions received by all and each; in like manner as to the estate of Bickard Hamner — how it was disposed of, and who now have it, and whether the slave William belonged to this estate, or to the life estate of Ann Hamner, and whether this estate was embraced in the partition; and as to the fact, whether the plaintiff, William Hamner, was in existence at the death of *468Ann Hamner; or more generally as to the grand-children of testator living before her death, with leave to' report any special matter affecting the merits of the ease.

The defendants, A. M. Hunt and wife, Thomas Puryear, and Reuben Puryear. and wife, appealed from so much of the decree as decides that the grand-children of the testator living at the death of his widow, are entitled to come in and take *per*capita, under the will, equal shares with the children, although the parents of such grand-children were living at the period of distribution, on the following grounds :

1. Because it appears from the whole will, and the general object and intention of the testator, that he did not intend his grand-children should take shares under the will, except in case of the previous death of their parent, and then only by representation; and that such intention appears manifest from the reason assigned by the testator in his will for excluding his daughter Maria from a share in the distribution of his estate.

2. If grand-children can take *per*capita, equally with the children of the testator, then it is submitted that those only can take who were living at the testator’s death, and not those subsequently born.

Bauslcett, for appellants,

cited 2 Jarm. Ill; *Oole*vs. *Creyón,*1 Hill Oh. 311; Lemaclcsys. *Clover,*1 Rich. Eq. 141; *Temple-ton*vs. *WaVcer,*3 Rich. 543*; Crowe*vs. Croioe, 1 Leigh, 74.

Arthur, contra,

cited *Mowatt*vs. *Caron,*7 Paige, 328 ; *Godard*vs. *Wagner,*2 Strob. Eq. 1; *Evans*vs. *Godbold,*6 Rich. Eq. 26 ; *Wright*vs. *Kreber,*5 B. & 0. 866 ; *Freeman*vs. *Knight,*2 Ired. 72; 42 Eng. 0. L. R. 488 ; *Doe*vs. *Weber,*1 B. & Aid. 713; *Mathis*vs. *Hammond,*6 Rich. Eq. 399; *Shoppert*vs. *Gillam,*6 Rich. Eq. 82.

*469The opinion of the Court was delivered by

Dargan, Oh.

The question presented in this appeal arises upon the construction of the will of George B. Hamner, Sr., of Meehlenburg county, Virginia, which bears date the 17th November, 1834. The disposing part of the will consists of but one clause, which is in the following words:

“It is my will and desire that all my just debts be paid, and funeral expenses, out of my estate: and all the residue ‘thereof, I give to my wife, during her life, to be used for her use and benefit as she may think proper; and at her death, it is my will and desire, that the estate which may be then in being for her support, be equally divided amongst my children and grand-children,>except Howell Jeffries, son of my daughter, Sarah, (as his uncle, Howell L. Jeffries, has promised to provide for him,) and my daughter, Maria, (having given her as much as I intend her to have out of my estate.) It is also my will, that Samuel Jeffries, also son of my daughter, Sarah, shall have no part of my estate, at the death of my wife. It is my will and desire, that my wife and my son, W. H. Hamner, shall have the management of my estate.

The life estate of the widow, Ann Hamner, terminated at her death, 28th September, 1838. At the death of the testator, his children were, William H., George B., James B., Richard, Nancy, wife of Reuben A. Puryear, Martha E., wife of Alfred M. Hunt, Maria and Margaret. . The grand-children then living were Howell and Samuel Jeffries, sons of testator’s daughter, Sally, who predeceased him, Sally, daughter of Nancy Puryear, now the wife of William E. Morgan, Elizabeth, daughter of George B., now the wife of Jesse Wessenger, Mary Erances, daughter of George B., now the wife of Thomas P. Walker, and perhaps, as alleged in the bill, and denied in the answer of A. M. Hunt and wife, William, son of George B. The same persons answered the description of children and grand-children at the death of the testator, and at that *470of his widow, the tenant for life — except Bichard, who survived him, and predeceased her, and it is disputed whether Mary Prances was then in existence.

The remainder having fallen in, this suit has been brought for a partition of the estate. The litigation is, as to the parties who are to take, and the proportions in which they are to take. The sole question of law is, do the children and grand-children take *per*stirpes, or *per capita ?*

The Chancellor, who heard the cause on circuit, held, that the children and grand-children take equally in the distribution of this estate. Prom this decree an appeal has been taken on the following grounds:

> “ Pirst. Because, it appears from the whole will, and the general object and intention of the testator, that he did not intend his grand-children should take shares under the will, except in case of the previous death of the parent, and then only by representation; and that such intention appears manifest from the reason assigned by the testator in his will, for excluding his daughter, Maria, from a share in the distribution of the estate.”

*“*Second. If grand-children can take *per capita*equally with the children of the testator, then it is submitted, that those only can take who were living at the death of the testator, and not those subsequently born.

I think with the Chancellor who heard the cause on circuit, that the principles which must govern the decision of this case are too clearly defined to admit of discussion or doubt. Where a testator has given an estate to several persons as a class to take effect at his death, (which, in that case, is the period to which the partition refers) all who can bring themselves within the description at the death of the testator, are entitled to take. But where the partition is postponed by the interposition of a life estate, or to some future day for *471any other cause, all who can bring themselves within the description at the period of distribution are entitled.to participate in the distribution. It is unnecessary to cite cases. All the authorities support the doctrine. There are none to the contrary. And the rule will not yield except to a qualifying context. In this will, the death of the tenant for life, the testator’s widow, is the period fixed for the distribution/of the remainder among the testator’s children and grand-children, with the exception of two of the grand-children, who are expressly excluded. All the children and grand-children of the testator, who were in being at the death of the tenant for life, except the grand-children, (Howell and Samuel Jeffries, who are expressly excluded by the terms of the will,) are entitled to a share in the division of this estate: as well those who were born at the death of the testator, as those after born.

Ye have thus arrived at the conclusion, that all the grandchildren in being at the death of the tenant for life, are entitled to participate. In what proportions they are to take— whether representatively or *per capita,*and in equal shares with the children, is another and a distinct question. But it is equally well settled, that where a testator gives an estate to his children and grand-children, without explanatory words, indicating a different intent, the children and grandchildren will take *per capita,*and in equal shares. A division, by which the grand-children should take representatively through their parents, would, among lineals, I think, be more natural, and less repugnant to the common course of human affections. The intensity of a man’s love for his offspring, is in proportion to their propinquity. His affection for the offspring of his own loins, to whom he is endeared by a thousand associations and fond memories is 'stronger than for his remoter, immature, or unborn descendants. Hence, if a man having one living son, and ten grand-sons, the children of a deceased son, were to give his estate to be equally *472divided among Lis son and ten grand-sons, without some ■special reason for such a disposition, by the common consent of mankind, lie would be considered as having done injustice ■to the son. This sentiment does not exist as to collaterals. A man -would not be considered as having violated any natural obligation, if he gave his estate to be equally divided among his living uncle and the ten children of his deceased uncle; or for having made any similar. disposition. These natural distinctions ai’e recognized in, and in part, form the basis of our statute *of*distributions; where, among lineals, the *jus representations,*exists indefinitely to the remotest degree, and among collaterals, only in one or two specified cases among children of brothers or sisters of the whole blood.

It is upon reasons like these, I apprehend, that in case's similar to this, where a testator gives an estate to his children and grand-children, the Court is disposed to look into the will, to see if there be any satisfactory *indicia*manifesting on the part of the testator, a more natural intent than that which the words “to children and grand-children” import. And it is not to be denied that Courts have, on some occasions, laid hold of very slight circumstances to vary the construction. In one case, it is said, that the faintest glimpse of such intention is sufficient. But this, perhaps, would be going too far. To give a strained construction to carry into effect a favorite theory would not be the most conducive mode of arriving at the true meaning of the will.

The *jus disjponendi*is absolute in the. testator; and he has the right to dispose of his estate, as his judgment or caprice may dictate. And if he has expressed his meaning plainly, no tortured interpretation should be resorted to for the purpose of defeating his purpose; — even though he may be supposed to have made an unnatural will. If, without wresting the import of the words employed, the will admits of *473two interpretations, the Court will adopt that which is the most natural.

¥e have been earnestly asked to look into this will, for the purpose of giving effect to certain alleged indications, that the testator’s meaning was different from that which the Circuit Court has construed it to be. We have carefully examined the will, and we have discovered nothing to warrant us in holding that the testator, by his gift to his *children and*grand-children, did not intend to use those words in their ordinary and popular sense, and that all who fell under that description at the death of his widow, should take *per capita*or in equal shares.

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

Johnston, Dtjnkin and WARDLAW, CO., concurred.

*Appeal dismissed.*