From Halifax. Mourning, one of the daughters, intermarried with James Branch, and died, after attaining the age of eighteen years, and after having a still-born child. She had no issue born alive. Margaret intermarried with John Alston, and Temperance with James Alston, and the said Alstons and wives filed their bill against James Branch, who survived his wife Mourning, for an account of so much of the estate of the testator, Micajah Thomas, as had been allotted to the said Mourning shortly after her marriage, and as had come to the hands of said Branch; and also against William Arrington, who had been guardian to the said Mourning, to restrain him (358) from paying over to Branch such moneys, belonging to the estate of the said Mourning, as were then in his hands; and the bill prayed that Branch might be decreed to deliver up to *Page 252 complainants the negroes and other estates, and pay over to them such moneys as were in his hands belonging to the estate of the said Mourning.
To this bill the defendants demurred, and it was submitted to the Supreme Court, Whether the estate vested absolutely in Mourning when she attained eighteen or when she married, or whether it ceased and determined by her death without issue after marriage. The testator's intention appears to have been that as his daughters attained the age of eighteen years or married, their shares of his estate, which, before those events happened, were contingent, should become absolute. A literal construction of the will would not effectuate this intention; for then, a dying under eighteen years of age, although the daughter was married, or a dying without marriage, although she had attained the age of eighteen years, would give her share over to the survivors. If the word or is construed copulatively, then the survivors can claim the shares of the deceased only upon the event of her having died unmarried and under eighteen. But Mourning having reached the age of eighteen, and having also married, there is not the least right in the complainants. To show that the will ought to be thus construed, the cases cited in Dickenson v. Jordan, post, 380, clearly prove. Another clause of the will provides that in the event of the death of his daughters under the age of eighteen years, (379) or marriage and having issue thereby, the estate shall go over to some other persons therein named. It is certainly a sound rule of construction, that every part of a will shall be taken into view, in order to ascertain the design of the maker; and this clause seems to show more clearly that the intention of the testator would not be accomplished by adopting the construction contended for by the complainants; for, then, the claim of the issue of a daughter dying under eighteen might have been defeated, which cannot be thought to have been wished or contemplated by the testator, who has called distant relations into the sphere of his bounty only upon a total failure of all those circumstances upon the happening of which he meant the shares of his daughters respectively to rest so as to become absolute.
In borrowing light from the clause of the will, we must keep in mind this important fact, that the same construction which *Page 253 would entitle the complainants to their deceased sister's share of the estate must be equally operative to transfer their own shares to the ulterior legatees. The Court cannot now decree in favor of the complainants on the ground of Mourning having died without issue, and hereafter refuse to sustain a bill in favor of the rest of the legatees, in the event of the complainants dying without issue. Moreover, if the complainants had died under the age of eighteen years, leaving issue, the same construction must have taken the estate from that issue and given it to these distant relations, if they are relations at all; for it does not appear that more than two of them are connected with the testator. Upon the whole, the Court are of opinion that the occurrence of either event, to wit, attaining the age of eighteen years, marriage and having issue thereby, was sufficient to vest the shares absolutely in the daughters; and that, consequently, nothing short of the failure of all these events would vest the share of a deceased daughter in the survivors, or in the residuary legatees upon the death of the daughters. Let the demurrer be sustained.
(380)