Roundtree v. Roundtree

The opinion of the court was delivered by Mr. Justice McIver.

Sometime in the year 1860 William Roundtree, late of Barnwell County, in the State aforesaid, departed this life, having previously, to wit,-on January 12,1858, duly made and executed his last will and testament. At the time the will was executed the testator had a wife and seven children. He had previously lost four children, two of whom died *459 childless and unmarried, and the other two having each left one child — one a son and the other a daughter. One of testator’s sons, James W. Roundtree, who wrote the will, and rvho had at the time seven children, which was known to the testator, died about five or six days before his father, leaving eight children, but for prudential reasons the testator was kept in ignorance of his son’s death until a very few days before his own death.

By the first clause of his will the testator gave to his wife, Jane Roundtree, certain slaves, together with the tract of land on which he resided, and also the Killingsworth tract, “and as much of the stock, horses, mules, cattle, and hogs and provisions, together with the -house furniture and plantation tools, as she may want for her own use during her natural life; and at her death it is my will and desire that it all shall be equally divided, share and share alike, between my surviving children.” By the 2d clause he gave to his granddaughter, Teresa Wood, the child of his pre-deceased daughter, a negro girl, with the 'provision that “should she die leaving no children, the said negro girl, with her increase, if any, to revert back and be equally divided between my surviving children.” By the 3d clause he gave to his grandson, John B. Roundtree, a son of his predeceased son, a negro boy, with a similar provision, in case of his death without children, to that contained in the next preceding clause.

By the 4th clause he says : “It is my will and desire, immediately after my death, that the whole of the rest, residue, and remainder of my estate, both real and personal, shall be equally divided between my surviving children, share and share alike.”. By another paragraph of the same clause, he declares it to be his will that his wife, Jane, his granddaughter, Teresa Wood, and his grandson, John B. Roundtree, shall have nothing more than what is given to them respectively in the first, second, and third clauses above written. By another paragraph of the same clause he declares, “finally, it is my will and desire, that if any of my children should die leaving no issue, the property they receive from my estate shall revert back and be equally divided between my surviving children.” And after providing that his son, James W. Roundtree, should receive and manage the share *460 of his son Augustus until he attained the age of twenty-one years, he, in the last paragraph of the 4th clause, appoints his executors, and says.: “I desire that they shall make the division of my estate, as written above, which division, when made, shall be final.”

It is stated in the Circuit decree that very soon after the decease of the testator, the residue of his estate was divided into seven equal parts, one of which was allotted to the children of James W. Roundtree, who had pre-deceased the testator by a very few days; but this fact does not appear in the “agreed statement,” upon which the case seems to have been heard.

During the life-time of the testator’s widow, to' wit, in 1869, one of the testator’s daughters, Martha, who had intermarried with one Meyer, departed this life, leaving as her heirs at law her husband and seven children, who are parties plaintiffs in this action. During the same period, but at what time precisely does not appear, the interest of Augustus M. Roundtree, in the remainder of his father’s estate, after the termination of the life-' estate of his mother, was sold by the sheriff under execution and bought by one Dicks, who, having died, his heirs at law are made parties, claiming the share of said Augustus under the sheriff’s deed, which, however, was not recorded within the time prescribed by law, and not until after the assignment by Augustus to the defendant, Weathersbee, hereinafter mentioned, was executed.

The life-tenant, Mrs. Jane Roundtree, having died some time in September, 1886, the executors, under the impression that the will conferred upon them the power so to do, proceeded to sell the land devised to the widow for life, for the purpose of making a division thereof, as directed by the will, and this sale, by the consent of all parties concerned, has been confirmed by an order in this cause, in which all the equities are reserved and transferred from the land to the fund arising from the sale. Soon after this sale was made by the executors, to wit, on December 7, 1886, Augustus M. Roundtree assigned to the- defendant, Weathersbee, all his right, title, and interest in that portion of the estate of his father, which was given to his mother for life, and directed the executors to pay over said interest to said *461 Weathersbee. A copy of this assignment is set out in the “Case,” from which it appears that though the attesting clause seems to have been written with the intention of its being under seal — “Witness my hand and séal” — yet there is no seal placed opposite the name of the assignor, and there is but one subscribing witness.

The main object of this action, which was commenced on December 23, 1885, is to obtain the decree of the court as to the proper construction of the first clause of the will of the said William Roundtree, as well as to determine the conflicting claims of the heirs of Dicks, and the defendant, Weathersbee, to the interest of Augustus.

Without undertaking to give even an abstract of the elaborate reasoning which conducted the Circuit Judge to the conclusions which he adopted, his whole decree being set out in the “Case,” it is sufficient to state here the conclusions of law which he reached to which error is imputed by the several grounds of appeal: 1st. He concluded that the children of James W. Roundtree, as a class, were entitled to the share in the remainder, to which their father would have been entitled if he had survived the testator. 2d. That the heirs of Mrs. Meyer were also entitled to the share of the remainder to which she would have been entitled. 3d. That the heirs of Dicks were entitled to the interest of Augustus M. Roundtree under the sheriff’s deed.

From this decree the defendants, Weathersbee and Augustus M. Roundtree, appeal upon the several grounds set out in the record, which need not be more specifically stated at this stage of the opinion, as the controlling propositions of law upon which these grounds rest will be hereinafter stated and considered. The heirs of Dicks, by their appeal, only impute error to the Circuit Judge in his first conclusion above stated, upon grounds which will hereinafter be considered. The children of James W. Roundtree, while not appealing from the decree, give notice, according to the proper practice, that the judgment should be sustained upon an additional ground to those upon which it is rested by the Circuit Judge, to wit: “That it appears from the 4th clause of the will that the testator intended, should any of his *462 children die in his life-time leaving issue, such issue were to be substituted for and take instead of such child dying.”

It should have been stated before, perhaps, that no question is made as to the personal property given to the widow for life, for the reason, probably, suggested by the' Circuit Judge, that it is not likely that “any of it has survived the wear and tear of twenty-five years’ use, and the wreck of Sherman’s march through that section in the early part of the year 1865.” At all events, the controversy here is, as we understand it, confined to the land, or rather the proceeds of the sale thereof.

It seems to us that the controlling question is as to what the testator meant by the terms “my surviving children,” as used in the first clause of the will. To determine this question, we must ascertain what period must be looked to with a view7 to discover who would then be the surviving children of the testator. But three periods have been, or can be, suggested for this purpose: 1st, the date of the will; 2d, the death of the testator; 3d, the death of the life-tenant, the widow. The first idea which naturally presents itself is, that if the testator, when he used the words in question, had reference to either the 1st or 2d periods above suggested, then the use of the word “surviving” was wholly unnecessary. For it is quite clear that if it was the intention of the testator that the remainder should be divided amongst his children who were living at the time of the execution of the will, or at the time of his death (the period when a will is ordinarily supposed to speak), the wmrds “my children” would mean precisely the same persons as the words “my surviving children.”

For, suppose it be assumed, or proved to a demonstration, that the testator, when penning his will, intended that all of his children who were then living should share in this remainder, and he had used in the clause the words “my children,” instead of the words “my surviving children,” is it not clear that the words “my children” would justas perfectly have designated the persons whom we have supposed he intended' should take, as if he had used the words “my surviving children” ? In fact, more so, for the interpolation of the word “surviving” would have tended to raise a doubt about what wras perfectly clear before. So, too, if we should assume that the testator intended that all of his children *463 who were living at the time of his death should share in this remainder, such intention would have been quite as fully and much more clearly expressed by the use of the words “my children,” than by the words “my surviving children”; for it cannot be questioned that Avhen a testator directs that certain property shall be divided amongst “my children,” all those Avho can bring themselves into that class at the time of the testator’s death, are entitled to share in such division ; and when the word “surviving” is interpolated, it is not only Avholly unnecessary under the supposition Ave have made, but rather tends to obscure that which was before perfectly clear.

Another objection to the adoption of the period first suggested — the date of the Avill — is that if that was the period in the mind of the testator, he would most naturally have described those who were to take by their names, which, of course, were knoAvn to him, or at least as those who were then living, and would not have used what, to say the least of it, Avas a very doubtful expression, as is shoAvn by the very numerous cases in Avhich the courts have been called upon to construe the meaning and effect of the words “survivors” and “surviving.”

It seems to us clear, therefore, that if we should adopt either the first or second period suggested as the point to which the testator’s mind Ayas directed while penning the first clause of his will, we must necessarily regard the word “surviving” as mere surplusage, adding nothing to the language used, and throAving no light whatever on the intention Avhich the language Avas used to express. This, however, Ave are not at liberty to do, as the well settled rule requires us to give force and effect to every Avord used; and it would be very extraordinary to reject so important, and oftentimes controlling, a word as that of “surviving” as surplus-age. The testator did use the word, and manifestly used it as qualifying the word “childi-en,” and we must give it that effect. By its use he plainly intended that the residue of his estate, after the termination of the widow’s life-estate, should be divided — not amongst his children, for he did not say so — but amongst his surviving children, for that is what he has said. He, therefore, clearly did not mean to include all of his children, but only his surviving children. He could not possibly know which of his *464 children would be then living, and therefore used the most appropriate word to designate those whom he could not otherwise describe. His mind was directed to the division of that portion of his estate which, according to his scheme, could not possibly take place until some future, indefinite period, and while his mind was so directed to that period he uses the terms in question — “my surviving children” — and the inference seems irresistible that he meant by those terms, those of his children who might be then surviving.

There is nothing whatever to show that, after the testator’s mind was thus thrown forward to a future and indefinite time, for the purpose of directing what was to be done with his property at that time, it reverted back to the condition of things existing at the time he executed his will, or at the time of his death, for the purpose of designating the persons who were to share in such future division. If he had so reverted, then it would have been most natural for him to say that such division should be made amongst “my children,” naming them, or simply amongst “my children.” On the contrary, however, his intention being that this division which was to be made at a future, unascertained period, not amongst all of his children, as is conclusively shown by the qualifying word “surviving,” and not being able to more specifically designate the objects of his bounty in such division, he employs the words found in the will, which we construe to mean children surviving at the time fixed for the division. This view is fully supported by the authorities. Indeed, it is conceded to be the general rule in this State that where a testator gives property to one for life, with remainder to be equally divided amongst his surviving children, the death of the life-tenant, and not that of the testator, is the period which must be looked to in order to determine who are to take. Evans v. Godbold, 6 Rich. Eq., 26 ; Schoppert v. Gillam, Ibid., 83.

But it is contended that while this is the general rule, it is subject to exceptions ; that the intention of the testator must govern, and where it is -ascertained that the testator intended otherwise, then the rule cannot be applied. This is undoubtedly true; for the object of all construction is to ascertain the intention of the testator, and when that is ascertained it must be carried into *465 .effect, provided this can be done consistently with the settled rules of law. But how is the intention to be ascertained ? Certainly not by conjecture as to what the testator ought to have done, but by considering what is the plain meaning of the language which he has used, and by giving a careful consideration to the words of the will as a whole, guided by such rules of law as experience has shown to be useful in seeking such intention. We are to read the will as a whole, and from its terms ascertain, if practicable, what was in the mind of the testator at the time he executed it. We may also, where the language used is obscure or doubtful, read such language in the light which may be reflected upon it by the circumstances surrounding the testator at the time he executed his will, but such circumstances cannot be resorted to to prove the testator’s intention apart from his language. Rosborough v. Hemphill, 5 Rich. Eq., 95 . Now, reading this will in the light of these principles, we are unable(to discover anything in the terms of the will, even when read in the light of the surrounding circumstances, which indicates that this should be an exception to the general rule. The circumstance principally relied upon for the purpose is the fact that the testator, at the time he made his will, had lost four of his children, and that there were seven then surviving; but we suppose that this circumstance presents itself in many, if not in most, instances, and yet we have not been able to find any case where such a circumstance has been held sufficient to take the case from under the operation of the general rule.

Again, it is urged that the testator, by using the words “my surviving children’.’ in the fourth clause of his will in a different sense from that which we have attributed to them, under the operation of the rule as settled by the cases of Evans v. Godbold and Schoppert v. Gillam, supra, has thereby indicated an intention that they should be understood in the same sense wherever they are found in the will, upon the principle that it is to be presumed that the same word is used in the same sense wherever it occurs in the same will. But this principle must .necessarily be qualified by the connection in which the word is used, because it does not follow, either logically or grammatically, that because a word is used in one connection in a certain ascertained sense, *466 that the same sense is to be attributed to it when used in some other connection in the same written instrument. Now, while it is perfectly certain that the terms, “my surviving children,” in the connection in which it is used in the second paragraph of the 4th clause of the will, mean children surviving the testator, it does not by any means follow that the same words are used in the same sense in the first clause, where it is used in a different connection. In the 4th clause it is used in connection with a direct gift to the children, to take effect immediately upon the death of the testator, and there is no other period to which survivorship can be referred, except that of the death of the testator ; but in the first clause these words are used in another connection altogether, in reference to a gift preceded by a life-estate, which is not to take effect until after the termination of such life-estate.

This marks the distinction between the two clauses, for, as is said in 2 Jarm. Wills, 462 (Perkins edition): “In this state of the recent authorities, one scarcely need hesitate to affirm that the rule which reads a gift to survivors, simply as applying to objects living at the death of the testator, is confined to those cases in which there is no other period to which survivorship can be referred; and that where such gift is preceded by a life or other prior interest, it takes effect in favor of those who survive the period of distribution, and of those only.” It is true that the learned author calls attention to the fact that some of the cases forbid the application of this rule to devises, although, he says, “It is difficult to discover any ground for making them the subject of a different rule,” and he evidently does not think that such a distinction is well founded. See, also, what is said by Simpson, O. J., in Mendenhall v. Mower (16 S. C., 303), as to the distinction which formerly existed between real and personal property, and the rules applicable in construing instruments by which they are transferred and conveyed.

The words “my surviving children” are used in five different places in the will, and in every instance, except that presented by the second paragraph of the 4th clause, which directs distribution of the residue, “immediately after my death,” they are not only susceptible of the construction which we have placed upon them, *467 but such a construction is required by the rule; for in every instance, except that one, they are used in connection with a prior gift to some one, and the gift to the surviving children is only to take effect upon the termination of such prior estate. It seems to us that it would be a very unsafe rule of construction to hold that, because in one instance out of five the words, “my surviving children,” apply to children living at the death of the testator, those words when used in four other places, in connection with different matters, must be held to mean the same thing; especially when the controlling word, “surviving,” was in that instance wholly unnecessary — a mere pleonasm. For, as we have seen, if the testator had, in the second paragraph of the 4th clause of his will, directed that the residue should be divided, “immediately after my death,” amongst my children, instead of “my surviving children,” the effect would have been the same that it now is, and all of his children living at the time of his death would have been entitled to share in such division, the only effect of the introduction of the word “surviving” being rather to obscure than to make clear his intention.

Again, it is urged by the counsel for the heirs of Mrs. Meyer, that there was no devise of any estate to the widow at all, but that she was merely given the use of the property, while the estate therein immediately passed to the children, and, therefore, this case does not come within the rule as there was no prior gift of the property to the widow. We agree with the Circuit Judge, however, that the devise to the widow was a complete disposition of the property for the time being — the life of the widow^ — and invested her with a life-estate therein, “unaffected by the seeming limitation implied by the terms, ‘/or her own use,’ which, manifestly, only refers to the amount and quality of the stock, plantation tools, and furniture which she might need in operating the farm and keeping up the establishment as he left it at his death.” This is clear from the language used, as he does not give the widow all, or any specified portion, of the stock, but “as much of the stock, &c., as she may want for her own use during her natural life;” which shows beyond dispute that the words, “for her own use,” were introduced, not for the purpose of limiting her inter *468 est in the property, hut solely for the purpose of indicating how much of the stock, &c., she was to take.

Again, it is urged that the children of James W. Roundtree should he let in upon the ground of mistake. It is not necessary for us to consider whether the Court of Equity has jurisdiction to correct mistakes in wills, and if so, in what cases, for we do not think any case of mistake was presented. It is true that James W. Roundtree was alive at the time of the execution of the will, and was one of the objects of the intended bounty of the testator, but it does not necessarily follow that his children were — certainly not that they were equal objects of his bounty. On the contrary, there is nothing in the will to show that the testator intended to place any of his grandchildren upon an equal footing with his children, but the will rather shows the reverse whenever any of his grandchildren are alluded to. It is likewise true that James W. Roundtree pre-deceased the testator but by a very few days, though the fact does appear to have been known to him before his own death. Whether he had time, opportunity, or ability to alter his will, or whether he even expressed any wish to do so, does not appear. The Circuit Judge seems to assume, but upon what evidence, if any, the record does not disclose, that “the testator was kept in ignorance of his (James’s) death until so near his own that it was probably impossible to alter his will.”

Now, even accepting this assumption as well founded, it certainly does not show a case of mistake, but rather that of misfortune or omission. Can any one venture to say what the testator desired to do with the interest which he had intended for his dead son, and which he could not take by reason of his death ? If the court should undertake to do so, would not that be a clear case of undertaking to make, instead of construing, the will of a testator? It may be possible, and perhaps not altogether unlikely, that the testator supposed, after he was informed of the death of his son, James, that under the provisions of the act of 1789 his children wmuld take what was given to him by the will, and, therefore, that it was unnecessary to make any alteration in his will. But even if this were so, this, clearly, was not such a mistake of law as the court would relieve from (if, indeed, there is now any case in which relief would be granted upon that *469 ground. Cuningham v. Cuningham, 20 S. C., 317); for it was nothing more than an erroneous construction of a statute (Pratt v. McGhee, 17 S. C., 428), which certainly affords no ground of relief.

That the children of James cannot take by substitution is, we think, satisfactorily shown by the Circuit Judge in his decree, and we need not repeat here what he has there said. But the counsel for these children earnestly urges, in his argument here, their claim to take by substitution upon the ground that the fourth paragraph of the 4th clause of the will implies that the testator intended that the children of a deceased child should take by substitution. The language of that paragraph is as follows: “'And finally, it is my will and desire, that if any of my children should die leaving no issue, the property they receive from my estate shall revert back and be equally divided between my surviving children.” His argument, in brief, is that inasmuch as there is no express provision in this clause for the issue of a deceased child, while provision is expressly made for the disposition of the share of a child who may die without issue, the necessary implication is that the testator intended that, in the case not expressly provided for — the case of a child dying leaving issue — such issue should take by substitution for the parent. But it is manifest that this proposition is based upon an assumption, which we have seen is without foundation, to wit, that James, the parent of these children, was one of those embraced within the terms — “my surviving children” — used in the 1st clause, and, therefore, one of those who would have been entitled to share in the remainder after the termination of the widow’s life estate.

Indeed, the language of the paragraph last quoted affords conclusive proof that the terms — “my surviving children” — as there used cannot mean children surviving either at the date of the will or at the time of the death of the testator, but must refer only to those who are surviving at the time the gift over takes effect. Otherwise, a strange anomaly would be presented. For if a child who survived the date of the will, under the one supposition, or the death of the testator, under the other, and then died leaving no issue, his share would be divisible, not alone amongst his then surviving brothers and sisters, but his own estate would *470 be entitled to an equal share in such division, for he was one of the children surviving at the date of the will, under one supposition, and at the time of testator’s death, under the other, and therefore his estate would be entitled to share equally with the other surviving children in the division of his own share. So that if it had happened that at the date of the will, as well as at the time of testator’s death, there were only two surviving children, and one of them should afterwards die leaving no issue, the share of the one so dying would not go to the remaining child, but such share would be equally divided between such remaining child and the estate of the other. It is very manifest that such could not have been the intention of the testator, but, on the contrary, that his intention was, in accordance Avith what we have seen to be the rule in such cases, that in the case supposed the share of the child dying Avithout issue should go to the child or children who might be then surviving, and not to those Avho may have been surviving either at the date of the will or at the death of the testator.

The next material inquiry is as to the nature of the estates in remainder given to the surviving children by the 1st clause of the will — whether they are vested or contingent. It seems to us clear that they were contingent, for, having reached the conclusion that the Avords, surviving children, as used in that clause, mean only the children who were alive at the time of the death of the life-tenant, it is very manifest that, until that event occurred, it was wholly uncertain Avho the persons entitled to take would be, and this brings the case directly within the definition of a contingent remainder. Nothing is given to any child except one who survives the life-tenant, and therefore until that event occurred no one of the children could claim that he had any right to any interest in the property, the enjoyment of which in possession Avas postponed; for his right, as well as his enjoyment in possession, depended upon a future contingency. But without pursuing the discussion it is sufficient to cite the cases of Faber v. Police, 10 S. C., 376, and McElwee v. Wheeler, Ibid., 392, as well as those cited by counsel.

It follows from this that the interest of Augustus M. Round-tree, as one of the surviving children of the testator, in the re *471 mainder after the termination of the life estate of the widow, being-a contingent remainder, was not subject to levy and sale under execution, but was capable of being assigned. Allston v. Bank, 2 Hill Ch., 235 . Hence the heirs of Dicks can take nothing under the sheriff’s sale to their ancestor, such sale having been made, as we understand it, prior to the happening of the event — the death of the life-tenant — upon which the remainder created by the 1st clause in the will became vested, and the defendant Weathersbee’s claim to the interest of Augustus, under his assignment, is superior to that of the heirs of Dicks, who claim under the sheriff’s deed. Whether the lien of the judgments against Augustus did not attach to his interest in the remainder as soon as the same became vested by the death of the life-tenant, and thereby became superior to the claim of Weathersbee under his assignment, which was not executed until after the interest in remainder became vested, is a question not now before us. It does not appear from the record -who those judgment creditors were, and they not being parties to this proceeding, their rights, if they have any, cannot now be considered or adjudicated.

It is contended, however, in behalf of the heirs of Mrs. Meyer that even assuming that the remainder was contingent, yet still it was transmissible. Under the view which we have taken as to the period which must be looked to for the purpose of ascertaining who are the persons entitled in remainder, we do not see how this question can arise. But we may say that while it is true that there is a certain class of contingent remainders which may become transmissible by the happening of the event, even after the death of the remainderman, yet this case could not be brought into that class. The rule, as we understand it, is this : where the person to take in remainder is ascertained, and it is only the event upon which such person is to take that is uncertain, there the estate in remainder becomes transmissible to the heirs of the remainder-man, upon the happening of the event upon which such ascertained person was to take, even though such event may not happen until after the death of the person named, or otherwise sufficiently designated, as remainderman. But where the person to take is uncertain, then the estate cannot become transmissible *472 until the estate becomes vested by the happening of the contingency.

As is said in Dickson v. Dickson, 23 S. C., at page 225 : “It appears somewhat anomalous that a contingent remainder, which never, in fact, vests in the remainderman during his life, should yet be transmissible to his representatives. But that there are such contingent remainders is well settled. There are several kinds of contingent remainders classified by the character of the contingency upon which they are based. Mr. Fearne divides them into four classes. It is not necessary, however, to discuss all of these. It is sufficient for our present purpose to say that where the existence of the remainderman himself at the time of the event upon which the remainder is to take effect, does not constitute the contingency, then the remainder is transmissible. A testator may make it one of the conditions of the limitation that the remainderman shall survive the first taker; but where he fails to do this, and places the remainder upon some other event or contingency, wholly disconnected from the survivorship of the remainderman, the fact of his non-survivorship will not defeat the remainder, for the obvious reason that the testator has not so declared and directed”—citing McMeekin v. Brummet, 2 Hill Ch., 642 ; Pritchett v. Cannon, 10 Rich. Eq., 394 ; and Fearne on Remainders, 559, 560. Now, in the case under consideration the testator has, as we have seen, made it “one of the conditions of the limitation that the remainderman shall survive the first taker,” and therefore the remainders are not only contingent, but they are of such a class of contingent remainders as are not transmissible.

It only remains for us to consider some of the cases mainly relied on by counsel as being opposed to the views which we have adopted, for the purpose of showing that they do not apply to the case now under consideration. In Drayton v. Drayton (1 DeSaus., 324), there were two provisions in the will of testator for his youngest son, John. By the first the limitation over was expressed substantially as follows: that in case of the death of John under age and without issue, the property should be sold and the money equally divided among “his four surviving sons, William Henry, Charles, Glen, and Thomas, or the survivors of *473 them and in the other the provision was that in the event mentioned the property “should be divided equally among his surviving brothers.” Upon the death of John under age and without issue the question was, whether the children of William Henry, who had survived the testator, but had died before John, should be let in, and the court held that they should, mainly upon the ground that those who were to take in remainder were, in the first instance,, designated by name.

We adopt the comments made upon this case by Nott, J., in Swinton v. Legaré, 2 McCord, 444 : “The principal ground of decision was, because the legacy was given to the four surviving sons by name ; and although in the last bequest the testator made use. of the words surviving brothers, without naming them, yet as the intention appeared to be the same, the court gave it the same construction, intimating thereby that if both clauses had mentioned the surviving brothers, without any specification of their names, the construction would have been otherwise.” It is true that Harper, Ch., in his Circuit decree in Anderson v. Smoot (Speer Eq., 312), seemed disposed to give more force to the case of Drayton v. Drayton than is attributed to it in Swinton v. Legaré, but it will be observed that the Court of Appeals did not adopt Chancellor Harper’s view and rested their decision upon another ground. It seems to us, therefore, that there is a wide difference betweeu the case of Drayton v. Drayton and this case.

The case of Bankhead v. Carlisle ( 1 Hill, 357 ) differs materially from the case under consideration, for there the limitation over after the death of the life-tenant was that the property should “be equally divided amongst my children as above named.” There was no limitation over to survivors, and more than that, the remainderman who survived the testator but predeceased the life-tenant was designated by name, and his representatives were, of course, entitled to share in the division which was to be made on the death of the life-tenant. So, too, in the case of Britton v. Johnson (2 Mill Ch., 430), the limitation over was not to survivors or surviving children, but to “my children and or their heirs,” a rather awkward expression, which the court construed to mean to the testator’s children and the heirs of any deceased child. *474 So also in Bentley v. Long ( 1 Strob. Eq., 43 ), the limitation over after the death of the widow was to “our children” — not to surviving children — and it was held that each child living at the time of the death of the testator took a vested transmissible interest. In McCreary v. Burns (17 S. C., 45), the limitation over, though not very clearly expressed, was construed practically to amount to the same thing as in the preceding case, and the same result followed. But it is sufficient for our purpose to call attention to the fact that there was no limitation to survivors.

We are unable, therefore, to see that these, or any of the other cases cited, are in conflict with the views which we have adopted.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry out the views herein announced.