dissenting.
The complainants in the bill are Benj. S. Burch’s sons and daughters, and the husbands of the daughters. He was a brother of the testator.
*555The defendant in the bill is John C. Burch, the executor of the testator’s will.
The complainants claimed, by their bill, "that they were entitled to the share of Wm. S. Burch’s estate which would come to their father, the said Benjamin, were he alive, which share, they say, is one-seventh of two-thirds of the estate.”
The executor demurred to their bill, and the Court overruled the demurrer. Thus the Court sustained the complainants in this their claim.
The question, therefore, is, were the complainants entitled to "one-seventh of two-thirds of the estate ?”
This, (as we shall see,) will be determined by determining what their father, Benj. S. Burch, would be entitled to if he were alive. Let us, then, enquire, what he would be entitled to, if alive.
To find this, we must find what interest he took by the will.
There is this provision in the will: "If my wife, Elizabeth, should marry, then, and in that case, my will is, that the other share, or one-third part of my estate, divided by appraisement as aforesaid, be sold, and the money arising from said sale, be equally divided betwixt my brothers and sisters, to-wit: Thomas Burch, Benjamin Burch, Maza Burch, John Burch, Cheadle Burch, Polly Johnston, Jenny Divine, Hannah C. Perkins, and Sarah Eesee, and is to them my said brothers and sisters, share and share alike, forever. But if either of said brothers or sisters should decease, leaving no child or children, then, and in that case, my will is, that their part of said legacy be equally divided between the whole of my brothers and sisters above named, and is to each of them forever.”
This provision was preceded by dispositions to the effect that if the widow married, the testator “lent” one of the other two-thirds of his property to her, for her life, with remainder *556to certain persons, (her relations,) and, one to Betty Cook,, for her life.
And the provision was followed by certain dispositions intended to meet the case of the widow’s not marrying, a case in which, what she was to have, was the whole of the property for her life.
Three of these dispositions were as follows: “One other share or third part of the moneys arising from the sale of the whole of my estate, I lend to my sister Betty Cook, during her natural life” etc.
“The other share, or the one-third part of the moneys so-arising from the sale of my estate, I give and bequeath, to be equally divided betwixt the whole of my above named brothers and sisters, in manner as above mentioned, and is to each of them forever.”
“At the death of my sister, Betty Cook, my will is, that the share or one-third part of the moneys arising from the sale of my estate so lent to her,” “I give and bequeath to be equally divided betwixt the whole of my above named, brothers and sisters, in manner above mentioned, and is to each of them forever.”
Benjamin S. Burch was one of the brothers.
There were nine of the brothers and sisters.
The widow of the testator, never married. She took, therefore, an estate for her life, in the whole of the property.
She survived Betty Cook. The estate, therefore, which Betty Cook took in a third of the property, for her life, to commence at the death of the widow, came to nothing. And the only effect which Betty Cook’s dying before the widow, had on the subsequent estates, was merely to accelerate the time at which their enjoyment was to commence. Fearne Rem. 237, 508; 1 Jarm. Wills, 513, 735.
What then, did the nine brothers and sisters, respectively take?
First, let us assume, that all of the nine survived the testator.
*557In that case, it is obvious that each of the nine took a remainder of some kind, in two-thirds of the property, to commence in possession at the death of the widow. I say each, because the bequest is not to them as a class, but is to each by name, and even if it were to them as a class, the doctrine of survivorship among joint tenants, was not in force at the time when the bequest was made. See ---at Atlanta, August, 1857.
Of what kind was this remainder? vested or contingent? for life or longer?
Vested, I say.
This was my opinion in Burch et al. vs. Burch, 19 Ga. R. 187, when this will was first brought before the Court; and in that case, I made the opinion the ground of a dissent.
I have not seen, or heard, any thing since, to make me change that opinion. I will merely add to it, a reference to Askew vs. Noland, a case decided since the opinion was expressed; viz: at Milledgeville, Nov. 1857; and to the cases that will be cited hereafter, in this opinion.
Assuming, then, that this remainder was vested, the next question is, was it an estate for life, or was it some greater estate, than one for life, as, what we may call a qualified fee?
It was greater than an estate for life, I say.
The first words used by the testator, in creating the estate, were these: “And is to them, my said brothers and sisters, share and share alike, forever.” These words taken by themselves, it is plain, conveyed the whole estate absolutely.
But the testator used additional words. Were these sufficient to cut down the estate conveyed by the others, to a life estate ?
I think not, and I think that in this opinion I am supported by both principle and precedent.
First, it may be assumed as a leading principle of construction, that words are counteracted by subsequent words, to the extent to which, the subsequent words are in conflict with them, and to that extent only.
*558The words here, as we have seen, are, “ and is to them my said brothers and sisters, share and share alike, forever.” The subsequent or additional words are, “ but if either of my said brothers or sisters should decease, leaving no child or children, then and in that case, my will is, that their part of said legacy be equally divided, between the whole of my brothers and sisters above named, and is to each of them forever.”
Now these words are in conflict with the former, in so far as the former make the estates which they convey, absolute estates; and in so far only. They, therefore, can, according to the rule of construction aforesaid, counteract the effect of those words so far as to cut down the estate, conveyed by those words, from absolute into conditional estates; and so far only.
And such conditional estates as these, correspond to leases or qualified fees, in land. We may, therefore, with sufficient accuracy for all practical purposes, say, that the absolute estates conveyed by the first words were reduced, by the added words, to qualified fees. That is, we may say, taking both, sets of words together, that each brother and sister took a fee subject to be divested on his or her dying without leaving child or children, and vested in certain persons.
This, then, is the result at which we arrive, if we make this leading principle of construction, our guide.
If we make precedent our guide we shall, I think, arrive at the same result.
“In Harrison vs. Foreman,the testator gave to trustees £40 a year, part of £566 annuities, in trust to pay the dividends to Mrs. Barnes for life for her separate use; and after her death, upon trust to transfer the annuity, or the security upon which it was invested, to Peter and Susannah, equally; and in case of the death of either of them before Mrs. Barnes, he gave the whole to the survivor living at her decease.” Both the legatees died during the life of Mrs. Barnes. The question was whether their legal personal representatives, or *559the testator’s residuary legatees, were entitled to the aS40 annuities ? And Lord Alvanley, M. R., determined in favor of the former, upon the principle that Peter and Susannah having taken vested interests in the fund at the death of the testator subject to be divested in favor of the survivor who might be living at the decease of the tenant for life; as there was no such survivor at thatperiod, the divesting contingency never happened, and consequently the interest at first vested remained undisturbed, which entitled the two personal representatives to the property.” 1 Pop. Leg. 414.
Lord ALvanly said, “ where there are clear words of gift creating a vested interest, the Court will never permit the absolute gift to be defeated, unless it be perfectly clear that the very case has happened, in which it is declared that the interest shall not arise; that it must be determined upon the words of the will, there was a vested interest, which was to be divested only upon a given contingency. And the single question was, whether the contingency had happened ?” Id. Ibid.
The first words in this cited case are, “ upon trust to transfer the annuity” “to Peter and Susannah Stallard.”
In the case in hand, the first words are, “ to be equally divided between my brothers and sisters,” “ and is to them” afor everP
If those words are sufficient to convey the fee, much more, it must be manifest, are these.
And in the case cited, the superadded or additional words, are, “ and in case of the death of either of them before Mrs. Barnes, he gave the whole to the survivor living at her deceaseP
In the case in hand, the superadded or additional words are, “ but if either of said brothers or sisters should decease, leaving no child or children, then their part of said legacy be equally divided betwixt the whole of my brothers and sisters.”
If the former words are insufficient to reduce the fee to *560which they relate below a qualified fee; the latter words are,, at least, equally insufficient to reduce the fee to which they relate, below a qualified fee.
To the same effect are many other cases. See Smither vs. Willcock, 9 Ves. 233; Wall vs. Thompson, 16 Ves. 413; Browne vs. Lord Kenyon, 3 Madd. 410; Sturgess vs. Pearson, 4 do. 411; Keates vs. Burton, 14 Ves. 434; Maberly vs Strode, 3 Ves. 450; Bell vs. Phyn, 7 Ves. 454, cited and commented on in 1 Rop. Leg. 412, et seq.; See too 1 Jarm. on wills, 750, 751, 500; Weakly vs. Rugg, 7 D. & E. 322; Doed. vs. Wetton, 2 Bos. and Pul. 324.
I conclude then, that what the nine brothers and sisters took respectively was a qualified fee in two-thirds ; viz: a fee subject, in the case of any one of the nine, to be divested, on his or her dying childless, and vested in certain persons.
I confess, that I once entertained a different opinion» When the case of Cheadle Burch’s children — a case growing out of this will — was before this Court, I thought that the true import of the words which have been under consideration, was such, as to give to the brothers and sisters respectively but a life estate, and the remainder, to their respective child or children by implication, if they died leaving child; or children. But in that case, the question what, or how much, the brothers and sisters, or their children, took, was very little, if at all discussed. In that case, the question made and debated, was, whether, as Cheadle Burch, (one of the brothers,) was dead when the will was written, the legacy to him was not void.
The executor’s counsel insisted, that the legacy was void, and that, therefore, the executor was entitled to it, as undisposed of property. They, as far as I remember, did not deny, that if the' legacy was not void, it went to Cheadle Burch’s children. If it did not go to the executor, the counsel were indifferent to whom it went.
Again, according to the opinion which I now entertain, it *561is the heirs of Cheadle Burch, to whom his share ought to go; though it may be true, perhaps, that it ought to go to them only through an administrator or executor of him; according to the opinion which I before entertained, it was his children to whom the share ought to go; but then, taking the facts as they appeared when I formed that opinion, his children were his only heirs, and there were no debts against his estate. I should, therefore, even if I had thought as I now think, have had to come to a conclusion, the same in practical effect as that to which I did come; viz: the conclusion, that the children were entitled to the share; but I should have had to put the conclusion on the ground that their father took the fee under the will and they were his heirs, and not on the ground on which I did put it — the ground that they themselves, took the fee under the will by implication.
I am now satisfied that the children did not take any thing by implication. And I have shown that they did not, if I have succeeded in showing, as I think I have, that every brother and sister of the testator, took an estate in fee, subject to be divested on his or her dying and leaving no child or children, and vested in certain persons. This must be manifest.
Assuming my present opinion to be true, then, the next question for me, is, who are those certain persons to whom the share of a brother or sister was to go over, on his or her dying childless?
The words, it will be remembered, are, that in that event, •t! their part of said legacy be equally divided between the whole of my brothers and sisters above named, and is to each of them forever.”
Those certain persons then, are the “ whole” of the named brothers and sisters — are “eac/i” of the named brothers and ■sisters ; not the surviving brother and sister.
This is the plain, the necessary, import of the words used.
And there is nothing absurd, or even surprising, in the fact, if fact it be, that such is the import. It was natural that *562the testator should wish, that the wife or husband of any of his nine brothers and sisters, should participate to some extent, in the legacies given to such brothers or sisters, even although such brother or sister might die childless. Hence, it Avas natural, that he should wish, that even if any of the nine should die childless, as much as one-ninth of his or her legacy should nevertheless remain to each one, and the rest of the legacy, go in equal parts to the other eight.
My conclusion then* is, that the persons Avho Avere to take the share of any one of the nine brothers and sisters, onthat one’s dying childless, were those same nine brothers and sisters; and that they Avere, each, to take one-ninth of the share.
Supposing, that I am right in this, the next question is, Avhat was the interest which each brother and sister thus took in the share of every other?
And it Avill be admitted by all, I dare say, that this interest was a contingent remainder. Every brother and sister took a remainder in the share of any brother and sister, contingent on that brother or sister’s dying childless.
Was this such an interest as Avas transmissible to personal representatives ?
I think it was.
“ A contingent remainder of inheritance, is transmissible to the heirs of the person to Avhorn it is limited, if such person chance to die before the contingency, except the existence of the devisee of the contingent interest at some particular time, may by implication enter and make part of the contingency itself, upon Avhich such interest is intended to take effect.” jFearne Con. Rem. note (e.J
This proposition is, I think, Avell supported by authority. See Pinbury vs. Elkin, 1 Peere Wms. 563; Fearne Cont. Rem. 509; 1 Rop. Leg. 401, ch. 10, sec.4; Note to 2 Wins’ Saund. 388, k; Jarm, on Wills, 777.
Assuming this proposition tobo true, the remainder of any brother or sister, in any share, was transmissible to his or her *563personal representatives; for the event on which such remainder was to vest in him or her was the death of the holder of such share, childless. This was the whole event. It made no part of the event that the brother or sister holding the remainder in the share, should be in existence at the time of the death of the holder of the share. Indeed, this very dead man, the holder of the share, himself, was to be one of the nine remainder-men in his own share.
This remainder which every brother and sister acquired,, In the share of every brother and sister, was a remainder in fee. Therefore it was subject to distribution under the law, and not under the will. In other words the “accruing shares” to the brothers and sisters, made a part of their estates, when they died, and were not subject, like the original shares, to be divested on their dying childless. Paine vs. Benson, 3 Atk. 80; 2 Jarm. Wills, 620; 2 Rop. Leg. ch. 8, sec. 4, 336.
To sum up, let us suppose two-thirds of the estate divided into nine equal parts. Then, if I am right in what I have said, what the nine brothers and sisters took may be thus stated: each brother and sister took one of the shares in fee, subject to be divested on his or her dying childless, and vested in the whole of the nine brothers and sisters, whereby, the whole nine took each a contingent fee in that share — a fee contingent on the holder of that share dying childless j which contingent fee was transmissible to personal representatives, and subject to the statute of distributions.
To apply:
Seven of the brothers and sisters, including Benj. S. Burch, died leaving children. Their shares, therefore, were never divested from them. Each of the seven then was entitled absolutely to one share. But each being dead, his executor or administrator has become entitled to the share in his place.
This disposes of seven of the nine shares.
Two of the brothers and sisters, Sarah Kesee, and Jenny Divine, died childless.
*564Their fees then, in their respective shares, became divested and vested in the whole of the nine brothers and sisters, or their personal representatives, consequently their two shares would be subject to be divided into nine equal parts, of which parts each of them or their executors or administrators would retain one part and each of the other seven brothers and sisters, or their personal representatives, would receive one part.
These nine parts when thus retained, or received, would be retained or received absolutely, and therefore, would be subject to be disposed of under the statute of distributions, and not under the will.
This disposes of the remaining two of the nine shares.
It follows that the suit in the present case ought to have been brought by the executor or administrator of Benj. S. Burch, and not, as it was, by his children; and consequently, it follows that the demurrer should have been sustained.
Hitherto, I have been going upou the assumption, that all of the nine brothers and sisters survived the testator. But that assumption I was not authorized to make; two of the nine, Sarah Kesec, and Cheadle Burch, died before the will was written.
Does this fact aifect the conclusion to which I have come?
This depends on whether the legacies to this brother and sister were void or not.
The question whether the legacy to the brother, Cheadle Burch, was void or not, has already been before this Court. That was the question in Burch vs. Burch, 20 Ga. Rep., 835. And this Court held that the legacy was not void. But, it is true, that it was not without much difficulty, that the Court could come to that conclusion. Still, I must say, that I continue to acquiesce in the conclusion.
There can be no doubt, that it was in the power of this testator to prevent these two legacies from being void, if he wished to do so. The only question, therefore, that can exist, is, did he wish to do so ?
*565Arguing from the general scheme of disposition, exhibited in the will, we might say, I think, with much confidence, that it was not the intention of the testator, that what was included in these two legacies should pass from his kin to his wife, or to her kin. His great idea was, manifestly, to put his property in two parcels, one for his kin, the other for his wife and her kin. And the part of his property included in these two legacies he put in the parcel designed for his kin. And to hold the legacies void, would make an intestacy as to the property included in them, and so would cause that property to pass over to his wife’s kin.
But perhaps, the state of the authorities does not justify us, in relying upon the general scheme of disposition, by itself, to establish an intention, that these two legacies were not to be void even though the legatees might be dead at the testator’s death. See Elliott vs. Davenport, 1 P. Wms., 83; Sibley vs. Cook, 3 Atk. 572; and Rop. Leg. 320, ch. 8, sec. 4 et seq.
Is there any particular disposition coming in aid of the general scheme ? I think so.
The testator, after directing a division among his brothers and sisters by name says: “ But if either of said brothers or sisters should decease, leaving no child or children, then and in that case, my will is, that their part of said legacy shall be equally divided betwixt the whole of my brothers and sisters above named, and is to each of them forever.”
The division is to be among the whole of the named brothers and sisters. The one dying leaving no children, i. e., the dead one, would be one of this “'whole.” Therefore, he was one who was to share in this division.
That the testator knew that he would be dead at the time of the division is beyond question, for the testator makes his dying childless, the event on which the division is to take place.
Here then, I think, is strong evidence to show, that the testator intended, that the death of any legatee at any time, *566was not to affect the legacy given to him ; but, that, in that case, his executor or administrator was to take his place.
And, I think, that the evidence derived from this source, added to that derived from the general scheme of the will, is sufficient to show, that the testator’s intention was, that legacies to a brother or sister were not to be void, although the brother or sister might be dead at the making of the will.
So, my general conclusion, as to the proper disposition to be made of the property in dispute, is not affected by the fact that two sisters were dead when the will was made.
The result is, that I think that the decision of the Court below, overruling the demurrer, was wrong.