V.

Brailsford.

Heyward life, the use of his house and lot in Charleston, (being the premises in question,, with the furniture, and also several house servants; also, his plantation or tract of land containing 764 acres of land, with all the slaves, &c. thereto belonging; and at her death he devised the plantation or tract of land and negroes on it, to his youngest child, that should attain the age of twenty-one years, and his or her heirs for ever; and the house and lot, slaves and furniture, &c. to the next youngest child that should attain to that age; and in case any of his youngest children should die before they attained that age, if they should have lawful issue, they should inherit.

That the testator also devised to his sons Thomas and William, in trust for his daughter Elizabeth, during her life, the following lands, slaves, and stock thereon and the appurtenances, and at her death gave the lands to the male heir of her body, when he should arrive at twenty-one years of age; and for the want of such, to the eldest female that should attain that age, or her lawful issue; and slaves to be divided among the heirs as above mentioned; and in case of no such heirs, then he gave the land and slaves to his youngest child that should attain the age of 21 years; namely, his plantation on Port Royal Island, and two tracts of land at the Oaketty's, &c.

The verdict then found, that the testator made a codicil to his will on the 15th of July, 1777, by which he provided for his son Benjamin, who was born after making his will; also, another codicil on the 28th of July, 1777, leaving his will and codicil in force, also leaving alive the following family, viz.

His widow, Mrs. Heyward, who departed this life the 6th of April, 1788, which was before Mrs. Brailsford, the wife of the defendant attained twenty-one years of age, and before the death of Benjamin.

Sons, Thomas, Daniel and William, all of whom were of age at the time of making the will.

Son James, under age at the time of making the will, but attained the age of twenty-one and died without issue.

Son Nathaniel, the plaintiff, born 18th of January, 1766, under age at the time of making the will, now alive and has lawful issue.

Daughter Maria, now Mrs. Brailsford, who arrived at twenty-one years of age, and has issue.

Daughter Elizabeth, born 12th of February, 1773, under age at the time of making the will, and died in 1780, under age, unmarried and without issue.

Son Benjamin, born 17th of November, 1776, after making his will, who died in September, 1796, under age, unmarried and without issue.

"That on the decease of the daughter Elizabeth, and af❝ter the death of the widow, in April, 1788, William Brails"ford, who had intermarried with Maria, as the then next 46 youngest child, took possession of the house and lot in dis(6 pute; and on the death of Benjamin Heyward, in 1796, "William Brailsford took possession of the Rose Hill and "Port Royal Plantations, and claimed the negroes in right "of his wife, as the youngest child of the testator.

The verdict then concluded as usual, "that if the law (6 was, upon the true construction of the will, for the plain"tiff, then the jury found for the plaintiff, Nathaniel Hey"ward; but if for the defendant, then the jury found for "the defendant, William Brailsford."

Mr. Ward, for the plaintiff, laid it down as a position which was generally admitted in the construction of wills, that the circumstances which existed at the time of testator's death were to be particularly regarded, and should not depend on subsequent contingencies. That the testator had not in view in the present devise any particular child or children, but only such particular classes of them who should arrive at the age of 21 years respectively. It was, he said, a calculation of chances, whether his children, who were then minors, should arrive at 21 years or not. All the words of a will are to be construed according to the natural intent and meaning. It is immaterial which words of a will

come first or last, the construction must arise from the whole.

That a devise to the heir at law of another is void, if given during the life of the father. But the court will take notice of the character of the person intended. 1 P. Wms. 229. 517. Doug. 418. 482. So that, upon the whole, the intent of the testator is always to govern, where it can be collected from the whole of the will, or from different parts of it which relate to the same subject. It is plain, therefore, from this will, that two distinct and separate estates were devised and given to two distinct and separate branches of the family; the plantation and negroes to the youngest, (Mrs. Brailsford,) and the house and lot to the next youngest which came of age, (i. e. the plaintiff, Nathaniel Heyward,) and no others could take these portions of the testator's estate but them, without doing violence to the testator's in

tention.

Mr. Gaillard, for defendant, admitted that the intention. should govern in the construction of wills, unless controlled by operation of law. The law did in the present case control this devise, and made what might otherwise be considered a contingent remainder an executory devise. That Maria, Mrs. Brailsford, was the youngest child who arrived at 21 years of age, and the moment she came to that age, the estate in the house and lot became vested in her by operation of law; and it was doing no violence to the testator's meaning, to say he meant and intended the next youngest child at the death of his widow, Mrs. Heyward. This construction, he said, would unite the principles of law and the intention of the testator together. Whereas the principles contended for by plaintiff's counsel, who preceded him, dissevered them, and placed them at variance with each other. But, he said, whether this was a remainder or an executory devise, the property vested in Mrs. Brailsford on her coming of age; and, having once vested, she never could be devest ed of her right. A contingent remainder requires a free

tees.

V.

Brailsford.

hold to support it; but Mrs. Brailsford had no freehold, Heyward only the usufruct of the estate, which was vested in trusIt must, therefore, be considered as an executory devise to Mrs. Brailsford. Fearne, 305. Ibid. 229, 230. 239. 434. A devise to an unborn son will be completely vested in him on his birth; so a devise to a daughter, on her coming of age, vests the estate absolutely when that event happens. Mrs. Brailsford was the next youngest child on the death of Elizabeth, her sister, and, on that event happening, the estate vested in her.

Mr. Desaussure. If the court was to give the defendant the house and lot in dispute, it would unite the estates which the testator intended to be kept separate. Let it be asked, he said, who was the youngest child of the testator who attained 21 years of age? The answer is, Mrs. Brailsford. Who was the next youngest child who attained that age? The answer is, Nathaniel Heyward, the plaintiff. Is it not, therefore, most evident, that these two devises were intended to be kept separate, as a provision for his two youngest children, and never was intended to be united in any one to the prejudice of the other. Upon the doctrine of intention, he said, it was so clear that it was almost needless to go into it. It was the first and most universal principle concerning the construction of wills, to inquire into the intention of the testator, and whenever that intention can be collected or discovered, it ought to govern. 1 Burr. 38. Robinson's case, a leading case on this head. But this point was so clear, that he would not dwell upon it.

Mr. Parker concluded the argument for defendant, and conceded the principle, that the intention of the testator, in the construction of wills, should always govern, unless controlled by some rule of law. In the present case, he said, the testator had created a kind of lottery, in favour of his younger children, and any one of them might draw two prizes. It might not have been the intention of the testator to have given both estates to one person, yet as the chapter

of accidents had turned up, two prizes might be drawn by one of his children, and then that child must take. Next youngest child, must mean the next youngest child at the death of his widow. This, therefore, he contended, was an executory devise to Mrs. Brailsford, or it would otherwise have gone to his heir at law, which never could have been the testator's intention. Fearne, 230.

The Judges, after considering this case, were unanimously of opinion, that in the construction of wills, the intention of the testator ought always to govern, or to be particularly attended to, wherever the intention can be discovered or traced out from the whole of the will taken together. Let it then be asked, what was the intention of the testator in the devises under consideration? and the answer is plain and evident, that it was to make a provision for his wife during her life, and, after her death, for the two youngest children, whoever they might be. The testator had a large family of children, and it appears he had a large estate to divide among them; and it was very natural for him, after settling the elder ones, and giving them their portions, to make provision for the younger ones, as they grew up and came of age. And as they had not an immediate occasion for their portions, and lived with the mother, he seems to have intended to give them their shares out of the estates devised in trust for the mother, after her death. According to this intention, then, he appears to have made his will, and that too in plain and intelligible terms. "That the plantation and negroes should go to the youngest child who "should attain the age of 21 years; and the house and lot in town, servants and furniture, &c. he gave this ext "youngest child, who should arrive at the age of 21 years.”

According to this plain intention of the testator, if Elizabeth and Benjamin had lived to arrive at the age of 21 years, they would have taken, because one was the youngest, and the other the next youngest child. If only one of them had live to come of age, then that one and Mrs. Brailsford would have taken the estate. But as neither of them lived