The question which determines this appeal is whether under the will of A.W. Kennedy the grandchildren of testator's son, Butler Kennedy, took as devisees and were therefore proper parties to an action for partition brought by the children of Butler Kennedy for partition of the lands devised by the will. I concur in the result reached by Mr. Justice Gary, but do not agree with him as to the construction of the will.
As it seems to me the will should be thus construed: First the trustees named and the survivor of them had no duty to perform with respect to "the issue" of the testator's children who were to have the land after his children had enjoyed the annual product for their lives; and as to such issue the use was executed. Second, "the issue" of the children did not mean the indefinite lineal descendants of the children of the testator, for the intention of the testator to point out particular issue is clearly shown by the provision for a division of the land, "when the youngest devisee of the real estate shall attain the age of twenty-one or marry." This distinguished the case from Whitworth v. Stukey, 1 Rich. Eq., 404; Bethea v. Bethea, 48 S.C. 440,26 S.E., 716, and other cases of that kind. Hence the issue of the *Page 340 children took as purchasers and not by descent, and there was no fee conditional in the children of the testator. Third, This narrows the inquiry to what particular issue of his children the testator meant to make his devisees. There can be no doubt that all the lineal descendants of the children of the testator were entitled to share in the devise to the issue of testator's children. Gourdin v. Deas, 27 S.C. 492,4 S.E., 64; Vale Royal Mfg. Co. v. Santee RiverCypress Lumber Co., 84 S.C. 81. The word issue, therefore, cannot be construed to mean children, but must be held to denote all who answer to the description of issue of testator's children at some particular time. What was that time? Manifestly the time of partition was not intended as it was in Rutledge v. Rutledge, Dudley's Eq., 201, andGourdin v. Deas, supra, for the provision of the will that the partition shall take place when the youngest devisee shall attain the age of twenty-one years, or marry, clearly indicates that before that time all the devisees should have been ascertained. The testator having thus excluded the idea that the devisees entitled to take as issue of his children should be ascertained at the period of distribution, and having expressed no other time for the ascertainment of those entitled to take as issue of his children, the law fixes the date of the testator's death as the time of ascertainment.Myers v. Myers, 2 McC. Eq., 256; Waddell v. Waddell, 68 S.C. 335,47 S.E., 375.
The question here is between the children and grandchildren of Butler Kennedy, who died before his father, the testator. The children, being the only issue in existence at the time of the death of the testator, were issue in existence at to the exclusion of the grandchildren born afterwards. It follows that the grandchildren had no interest in the land and were not proper parties to the action for partition instituted by the children of Butler Kennedy. For these reasons I think the judgment of the Circuit Court should be affirmed. *Page 341