#### *David Lesly, Ordinary of Abbeville, vs. William E. Collier and others.*

Testator bequeathed as follows: “I give and bequeath unto P. C., and in the event of his dying without issue, to go to his blood relations, the following negroes,” &c. P. C. died, without issue, in the life-time of testator; *Held*(1) that it was *not*the intention of testator that the “blood relations” should take as the substitutes, or alternates of P. C„ in the event of his dying, *in the life-time of testator,*without issue ;(2) that testator intended a *limitation over*to the “ blood relations (3) that such limitation over was too remote; and (4) that by the death of P. C., in the life-time of testator, the legacy lapsed.

*Before*Caldwell, Ch., *at Chambers, Charleston, Jan!y,*1850.

Caldwell, Ch. Edward Collier died on the 7th of May, 1848, leaving his last will and testament, dated 23rd of Aug., 1837. By the tenth clause he bequeathed as follows: *“*I give and bequeath to Patrick Henry Collier, son of the said Sarah Collier, and in the event of his dying without issue, to go to his blood relations, the following negroes: Alfred, Satyra, and Emeline, child of Betsey, with all their increase.” Patrick Henry Collier died, without issue, in the lifetime of the testator, leaving his mother Sarah *126Collier, and his brothers, James G. Collier and William E. Collier, and his sisters, Mariah, (who intermarried with J. B. Hart,) and Lucinda, (who intermarried with A. B. Elliott,) his dis-tributees ; the mother has since died, and the brothers and sisters are his next of kin. The first question is, has the legacy-lapsed ? The execution of a will conveys no interest or estate *in presentí,*and derives all its efficacy from the death of the testator; during his lifetime, he may alter, amend or destroy it; and from its ambulatory nature, the doctrine of lapse necessarily arises and extends its effects to bequests and devises with or without limitation. When the legatee dies in the lifetime of the testator, the legacy lapses. Our statute relaxes this stringent rule of the common law in the case of a child, (dying in the lifetime of a father or mother,) leaving issue not equally portioned with the other children of the father or mother when living ; this exception cannot exempt the legacy from lapsing. If Patrick Henry Collier had survived testator, what estate would he have taken under the will ? There is no direct gift to his issue; nor do the terms of the will tie up the generality of the expression, “ in the event of his dying without issue” to a definite period, or specify a particular class of issue that must come into *esse*within a life or lives in being, so that the words have all of the characteristics of an indefinite failure of issue. To give the fullest effect to the untechnical form of the phrase, that the legatee would take an interest in the property, defeasa-ble on the contingency of his dying without issue in the first, second or some more remote generation, whenever this incident happened the blood relations would come in. If this was the intention of the testator, the words he has used are in contravention of the well established rules of the law, and cannot be permitted to prevail. Great- variety of expression has been used in the different wills that have been subjected to the construction of the courts, and it would be utterly unsafe to adopt the popular, instead of the legal interpretation of the words of the will. When personal property is limited over, if the first taker “ dies without issue,” or if he *“*has no issue,” or if he *127dies “before he has any issue,” or “in default or want of issue,” &c. all these cases are clearly within the rule of being too remote; the extinction of issue not being restricted to any particular point of time, or the limitation not being confined to a class of persons designated with certainty, and who must come into being within the prescribed period, will render the limitation obnoxious to a general and indefinite failure of issue. The only two exceptions to the general rule are, when the testator having no issue, devises his property on failure of *his own issue :*this clearly indicates that he intends to make the legacy contingent on the event of his leaving no issue surviving him, and that he does not contemplate an extinction of issue at any time, (2 Fearne, 271, Smith’s ed.); and the other exception arises when the testator uses the expression (or what is equivalent to it) “ leaving no issue.”

Independently of argument in the abstract, this case has been settled by numerous well considered cases in England and in this State. Where a testa!or gave all his real and personal estate to A and his male issue; for want of such issue after him, to B and his male issue — -Sir William Grant, the Master of the Rolls, held that A took the absolute interest in the personal estate, *Donn*vs. *Penny,*(1 Mer. 20); and, in a more recent case, his successor, Lord Langdale, held, when a testator gave £.500 stock to S, T to receive the interest *during life*and then to her issue, but in case of her death without issue, the £500 to be divided between, &c; she died without issue — that the limitation over was void for remoteness, and she took an absolute interest under the first words, *Attorney General*vs. *Bright,*(2 Keen, 57.) The case of *Massey*vs. *Hudson,*(2 Mer. 138,) is strongly illustrative of the same principle. Many of our own cases have settled the same point; I shall rely upon *two*— Dun-*lop*vs. *Dunlop,*(4 Des. 313,) and *Postell*vs. *Postell,*(Bail. Eq. 390) — the latter is on all fours with the case under consideration ; there the bequest was to two brothers, “ to them and their legal issue, and should either die without lawful issue, the *128said property to revert back to the surviving brother or his lawful issue.”

I am of opinion the legacy lapses, and it is, therefore, ordered and adjudged that the said negroes in the tenth clause, and ■their issue, have lapsed by the death of Patrick Henry Collier, and the same is, under said clause, intestate property of the testator ; and it is ordered that David Lesly, Ordinary of Abbeville district, do administer the said property according to law.

The defendants appealed, and moved the reversal of Chancellor Caldwell’s decree, on the grounds,

1. That the legacy is not lapsed.

2. That the limitation in question is not too remote, uncertain, nor after an indefinite failure of issue.

3. That the legacy, according to circumstances at testator’s death, was direct, absolute, and unconnected with any limitation, and should have been so declared.

4. That the obvious intention of testator was, to give to a class, and that the same construction should have been applied to the item in question, as would be to other unquestionably good bequests to others of the class.

*Petigru, Thomson <$• Fair,*for appellants.

*McGowen,*contra.

Dargan, Ch.

delivered the opinion of the Court.

On this appeal, two questions have been discussed. It has been argued in the first place, that the legacy to Patrick Collier did not lapse in consequence of his death before the testator, because the limitation over to Patrick Collier’s blood relations, in the event of his dying without issue, is not too remote and uncertain, nor after an indefinite failure of issue; and that on the death of the testator, the limitation over to his blood relations took effect in favor of the persons who could bring themselves within that description. This is the appellants’s first proposition.

If there be a legacy to one, for life, with remainder to another, which remainder, on the death of the testator, would be direct and vested, and not contingent, and the person intended to be *129the tenant for life dies in the lifetime of the testator, I think it cannot be doubted that, in such case, the legacy does not lapse, but on the death of the testator, goes at once to him who, in the scheme of the legacy, was intended to be only a remainderman. And it may be .true, that a limitation over in favor of “ blood relations,” as a class, might be valid and effectual, provided it was conformable with all the rules which the law has prescribed against the creation of perpetuities. But, conceding that the limitation over (in this case) in favor of the first taker’s blood relations, was not too remote in consequence of its being after an indefinite failure of issue, it would have been, (if the first taker had survived the testator,) a contingent limitation, and not a vested remainder. It would have been contingent upon the event of the first taker’s dying without issue living at the time of his death. And if this condition had not happened, the first taker would have had an absolute estate, and the limitation would have been gone forever. And I am not prepared to admit that, where a legacy is given to one, with a valid but contingent limitation over, and the legatee dies in the lifetime of the testator, the legacy does not lapse. It is unnecessary for me further to develope these views, or to sustain them by authority or illustration, as they are not immediately involved in the question which the Court deems it incumbent upon it to decide. For, as to the question of the limitation, the Court is of the opinion, that the limitation (if one was intended) is after the indefinite failure of issue, and, therefore, void for being too remote. Indeed, it seems to me that this construction is too clear for discussion.

The second proposition submitted to the Court on this appeal is this — that the benefit intended by the testator to Patrick Collier’s blood relations, was not to be enjoyed by them m succession to Patrick Collier, or after the efflux of any estate to him or his issue ; but was a direct estate to them, as a substitu-tional or alternative legacy, given to them as a class, in the event of the death of Patrick Collier without issue in the lifetime of the testator. The corollary of this proposition, namely — that *130the legacy has not lapsed, is perfectly legitimate, if the principal proposition has been sustained.

It is perfectly clear that this position is entirely inconsistent with the first ground assumed, that there was a valid limitation. Both cannot he true. This, however, is no satisfactory solution of either question.

If a testator gives a legacy to one, either absolutely or with limitations, and declares that if the first named legatee should die in his lifetime, the same legacy should go to another person, or to a clearly designated, class of persons, capable of being identified; and the first of the alternative legatees should die in the lifetime of the testator, undoubtedly this is a case in which there would be no lapse. The legacy to the second alternative legatee would take effect as a substantive legacy; directly, and not in succession to the first named or preferred legatee. And if such were the intention of the testator, clearly to be inferred from the whole will by a fair construction, though not expressed in formal language to that effect, such intention would be respected, and efficacy given to it by the decree of the Court. In the foregoing remarks, I have admitted in the broadest terms, the legal principles upon whioh the second ground discussed on this appeal is based.

But the Court perceives nothing in the will of Edward Collier, to which these unquestionable legal principles will apply. According to the construction which the Court has given to the will, there is no intention on the part of the testator, indicated either directly or by implication, to appoint the class of persons called the blood relations of Patrick Collier, as a substitute for him, in the event that he should die in the lifetime of the testator. The clause in question is as follows. “ I give and bequeath to Patrick Henry Collier, son of the said Sarah Collier, and in the event of his dying without issue, to go to his blood relations, the following negroes,” namely, &c. The Court perceives in this, nothing but a common and fruitless attempt to create a limitation in favor of the blood relations, which is ineffectual from an ignorance or misapprehension of those well *131defined legal boundaries, by which that species of estate or interest in property is restricted. . Suppose the clause had read thus: — “ I. give and bequeath to Patrick Collier, the following negroes, namely,” &c. “ and in the event of his dying without issue, the said negroes to go to his blood relations.” On the construction of such a clause, could there be a doubt? The transposition of the words in which the blood relations are mentioned, from the parenthetical form, does not vary the plain sense and meaning of the clause.

To adopt the construction contended for by the appellants, the copulative conjunction which stands in the way, must be removed. The Court would have no difficulty in changing the copulative into the disjunctive form of expression, and *e conver-so,*where it is necessary to effectuate the intention of the testator. But to authorize the Court to take ' such liberties with a will, the intention must be manifest. It is done in the construction of wills, to prevent the clear intention of the testator from being defeated. It will not be done to carry into effect a conjectural intention, however plausible such construction may be.

It is to be remarked in this case, that the testator gives nothing to the issue of Patrick. There is no limitation to them, contingent or otherwise. If Patrick had died in the lifetime of the testator leaving issue, by the terms of this will such issue could not take. The word issue here, is a word of limitation, and not of purchase. There is nothing given to Patrick’s issue as such, and if there were, there is nothing to limit the generality of that form of expression. If Patrick had died in the lifetime of the testator, *leaving*issue, there being nothing given to them as purchasers, the legacy would have lapsed; for, according to the appellant’s own construction, the blood relations were not to take, unless Patrick should die in the testator’s lifetime *without issue.*The testator, therefore, could not have intended the blood relations as the substitutes or alternates of Patrick; for, by legal construction, he must be considered as having intended a lapse, in the event of Patrick’s dying, leaving issue, in his lifetime.

*132If the words of the bequest had been *these:*— “ I give and bequeath to Patrick, and in the event of his death to go to his blood relations,” &c. omitting the mention and condition of Patrick’s dying without issue, there would have been strong reasons and high authority for the construction that would give the property to the blood relations as the alternates or substitutes of Patrick. But the unfriendly interposition of the words relating to Patrick’s issue spoils this construction, and renders inapplicable the authorities cited. The strongest of them in support of the appellants’ construction, *Galland*vs. *Leonard,*(1 Swans. 161) is an anomalous case, and appears to have been decided with reference to its peculiar circumstances. An interpretation was given to the will to reconcile direct and palpable inconsistencies, and to harmonize its conflicting provisions. In these provisions there was' much complexity, and the testator’s meaning was carefully gleaned from the whole. The case is not considered as furnishing a parallel to this.

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

Johnston, Dunkin and WaRdlaw, CC. concurred.

*Appeal*dismissed.