dissenting.
James Robertson, of the city of Savannah, in the year eighteen hundred and two, made and published his will and testament, the fourth and fifth clauses of which are as follows ; viz : “4th. After the foregoing dispositions, I give and bequeath my whole estate, real and personal, of what description soever, in manner and form following: To my beloved wife, Jane Nesbit, the sole direction of the whole, with the guardianship of my several children by her, until they arrive at twenty-one years of age, successively, when each of my said children shall receive a dividend or share of my estate, in just proportions, by appraisement of my executors or the survivors of them, reserving one-third part of said estate,, to the exclusive use of my beloved wife, Jane Nesbit, during her life, and at her demise, the said third part to revert to my children or the survivors, share and share alike; and in the event of the death of my wife during the minority of the whole or any of my children, I then request of my executors, or the survivor of them, to undertake the guardianship of such minor or minors.” “ 5th. Should it be the Divine pleasure of Almighty God to take from this life my dear wife, Jane Nesbit, and all my children before they arrive at maturity, or in case of their all dying single or childless, then and in that case, what may remain of my estate shall go to my brothers, William, Andrew, Alexander, and David Robertson, and their heirs, in four equal proportions.”
The testator left four children, all daughters. They all attained the age of twenty-one years. Two of them died single and childless, leaving the other two sisters surviving them. One of the surviving sisters married, and having, survived her husband, died childless, leaving the othersister surviving *122her. The last surviving sister, on the twelfth day of March, eighteen hundred and fifty, intermarried with Allen R. Wright, of the city of Savannah. Prior to the marriage, she executed a marriage settlement, conveying' all the estate and property to Edward W. Solomons, to certain uses and upon certain trusts, for and during her life, and after her death to her own children or child, and the children of the said Wright by a former marriage. By the decree of the Court of Chancery, on the application of the said Solomons, he was discharged from said trust, and George W. Johnston was substised in his stead.
The four brothers of the testator, named in the will as legatees in remainder, were all dead at the time of the filing of the bill; two of them never married, one of them went to Ireland and is said to have married there, and died, and is supposed to have left issue, but of which fact the complainants allege they have no knowledge. The complainants are the children of William Robertson, one of the brothers, and claim that the whole of the estate left by the said testator, now in the hands of said Johnston, vested in them absolutely and in fee simple, under the provisions of said •will, and the issue, if any, of the brother who married and died in Ireland, the children of the said testator having all died childless and without issue. The complainants claim to be entitled to the «estate, and pray an account.
The defendants demurred' to the bill, and the presiding Judge in the Court below, sustained the demurrer and dismissed the bill, and to this judgment the complainants except, and assign error thereon.
A majority of this Court being of opinion, that the presiding Judge in the Court below committed error in sustaining the said demurrer, reverse his judgment. I think there was no error in the judgment of the Court below, and now proceed to assign my reasons for believing that it ought to be .affirmed..
*123The testator disposes of the principal part of his estate in the fourth and fifth clauses of his will. The fourth clause, in fact, contains a disposition of the whole of that part of the ■estate to which the parties litigant before us can lay claim. The testator was the draftsman of his own will, and he adopted his own plan of giving expression to his intentions. Like many persons who undertake the same thing, he no doubt thought, that because his purposes and objects were so well understood by himself, it was not necessary to be very particular in selecting language in which to express them, to convey his meaning to others. He perhaps did not know, that by far the largest part of the difficulties springing up in the construction of wills, grows out of a want of perspicuhy in ¿he language in which they are written. I think, however, ihat as awkwardly as the will under consideration is written, the intention of the testator may be collated from it, and, that effect may be given to that intention, consistently with the rules of law.
The testator, in the fourth part of his will, gives and bequeaths the whole of his estate, both real and personal, not disposed of in antecedent clauses. He, however, does not state to whom it is given. The objects must be looked for by examining the entire context. By doing this there can be no doubt. He gives no part of his estate in fee to his wife. When each of his children arrives at the age of twenty-one years, she (the daughter, for his children were all daughters,) is to receive a share of his estate. But still, the whole estate is not to be divided off. One-third of the estate is to be reserved for the use of his wife during her life. At her death, that third part is to revert to his children, or the survivors of them. The wife is to have the direction of the whole of the estate, until distributed agreeably to the above stated provisions. Thus far the wife and children are the sole objects of the testator’s bounty; the wife’s interest as expressed, is an estate for life, and the children’s interest as far as declared, are estates in fee. If the entire fee is not given to the chil*124dren, it is not given at all, for the brothers named in the fifth, clause do not take, except on the conditions therein expressed ,, on which I shall remark presently. In the sixth clause o ' the will the testator first appoints his wife executrix, amV tlien appoints four executors, to whom he commits the c-arc of his family and the bringing up his children decently and honestly. The request in this clause is almost equivalent tc the appointment of guardians of the persons, at least, of lib children. But in the fourth clause of the will, at the time, and in connection with it, that the testator gives the direction of his whole estate to his wife, he appoints her the guardian of his children, and in case of her death during their minority, he appoints his surviving executors their guardians. After the request in the sixth clause, there wa¡-no necessity for this, if he did not consider that his estate passed to them under his will during their minority. The appointment of a guardian under these circumstances is evidence, of the testator’s intention that the property should vest in the children immediately on his. death, except the third part, reserved to the wife, contingently, on their surviving her. The property then, by necessary implication, war. given by the testator to his children, to vest in them on hi; death, in the manner above stated, whether, at that time, they had attained majority or not. If the fee was not disposed of by the will, during their nonage, it must have vested in the wife and children, as the heirs at law of the testator, but it is clear that the testator did intend that the wife should not take more than an interest for life, in any part of his estate, and that the children should take the respective shares to which they were entitled absolutely, and the remainder after the death of the wife in the part reserved for her use, contingently, on their surviving her.
It cannot be questioned that, taking the fourth clause oí the will by itself, if either of the daughters had married and. died before attaining the age of twenty-one years, leaving a child surviving her, the husband, and if he were dead, the *125child, would have been entitled to her share of the estate. A question might have arisen as to the right of the husband or child to that part of the estate given to the testator’s widow during her life, if she had survived the daughter dying in her minority. Instances of estates passing by implication much stranger than that under discussion, may be found in 2 Peer Williams 194, Crowder vs. Clowes, 2 Vesey Jr. 449, &c., &c.
By the fourth clause of the will, therefore, the testator gave the estate, real and personal, therein bequeathed and devised, to his children, except one-third part thereof, reserved to his wife during her life, which was given, on her demise, to such of his children as should survive her. The testator’s children were all daughters, they all attained the age of twenty-one years, and all -survived the wife, and the whole estate, therefore, vested in them absolutely, unless there is something in a subsequent part of the will to prevent it.
It would, in my judgment, do violence to the intention of the testator, and the words of his’ will, to hold that the fifth clause of the will reduced the estate of the children to a mere usufructuary interest. The testator knew that his children were all daughters, and that reaching a marriageable age before twenty-one, and they might marry and die, surviving both husband and child, if any, before the attainment of that age. While he did not intend to injure their prospects of marriage, or cut off their children, if any, living at their death, they surviving their husband, he intended to give over to his brothers the entire estate, on condition that they all died surviving their mother, single’and childless, before they attained the age of twenty-one years. It is manifest, that if the children had all died, unmarried and childless, bgfore they arrived at maturity, whatever meaning may be affixed to that term, the mother surviving them, the brothers could not have taken any thing under the will, nor could the surviving mother. Nothing was given over in that event. The will making no disposition of the property, it must have been *126distributed under the Act for distributing intestates’ estates, and the wife or widow would have taken one moiety of the estate, and the brothers and sisters of the testator would have taken the other moiety. The testator having died in 1803, the statute of distributions of 1789 would have governed the descent of the property. That the death of the wife is mentioned in connection with that of the children and is made one of the conditions on which the estate was to go over te» the brothers, is strong evidence to my mind, that the testator did not intend to tie up his property in any event, if the children should attain the age of twenty-one years. This opin - ion, that the testator intended the unrestricted ownership of the property to be in the children, on their marriage respectively before twenty-one, and after that age, whether married: or not, is strengthened by the fact that the testator gives over “ what remains” of his estate on the happening of the contingency on which the brothers tvere to take. This is the only relation in which he uses that expression. In every other place he speaks of his estate. It is true that this expression would have but little influence, if a life estate only-had been expressly given to the children, or if it appeared that the estate consisted of property of a perishable nature,, The contrary, however, appears. The will gives the estate, real and personal, and it no where appears that the testator could have referred to a portion of the property likely to be lost or destroyed by the use.
If, on the death of the wife, after the daughters' had attained the age of twenty-one years, they being single and childless, the brothers had filed a bill charging that they were entitled to the remainder on their death single or childless ; that they were likely to die single or childless, and that they were exercising all the rights of absolute ownership over the property, selling and converting it and the proceeds to their own use, no Chancellor, I apprehend, would have interfered to restrain the daughters, and declare a trust for the brothers. This is putting the case as strongly for the plain*127tiffs in error as they could desire it. The Chancellor would have replied, it seems to me, that, taking the will as a whole, his children were the first objects of the testator’s bounty, that admitting that the complainants construed correctly the conditions on which they should be entitled to what the testator bequeathed or devised to them, it could never have been his intention to restrict his children in the use of the property, in a manner to interfere with their complete enjoyment of it, and that all to which the brothers could be entitled was what might remain of the estate after this unrestricted use and ownership of it by the children. What mighii remain could not be ascertained. It must necessarily have been a matter of doubt and uncertainty, and too much so to authorize a Court to risk the thwarting of the main intention of the testator, to uphold a subordinate and doubtful purpose, when there could be no certainty on the subject. When there is great doubt and uncertainty in such matters the Court will not undertake to execute the will, and for that reason the limitation over to the brothers was void. Eade vs. Eade et al., 5 Mad. Ch. Rep., 118; Wilson vs. Major, 11 th Ves. Jr., 205; Sprange vs. Barnard et al., 2 Burn's Ch. Rep., 585 ; Wynn vs. Hawkins, 1 Br. Ch. R., 179.
I will now consider the fifth clause of the will in another aspect. If the children had all died childless within the age of twenty-one years, but the 'survivor of them had married and left her husband surviving, then the brothers could not have taken in remainder. The testator could never have intended that if one of his children had died single, leaving a child, that the estate should go over to hi? brothers, and yet, if the will is to be construed literally, such must have been the case. The Court, I apprehend, would have hesitated long before it would have held that the brothers were preferred by the testator to his grand-child, if the husband of the daughter had died before her, leaving her single at her death.
There are general rules for construing wills. I do not *128think that special, circumstances should induce a departure from a sound, well established rule of construction. The rule requires that the intention of the testator shall have effect, if it be legal. The whole will may be looked to in order to arrive at the intention, and sentences may be transposed and words changed to give effect to such intention, when it is well ascertained. No one can be so sceptical as to doubt whether the testator did not intend, in this will, that the child of the daughter should take, in the easel have put, instead of his brothers, and yet it would be necessary to change the word “ or” into “ and” to enable it to do it. If “and” should be read for “or,” in case of a child, the rule should be the same, in the event of the marriage and death of the daughter in the life time of her husband. In each case, the brothers would be excluded.
While Courts disavow the right to make a will for a testator, they take considerable liberty with a will as written to effectuate the intention of the testator. A will is sometimes written by a testator, who is without counsel, and often in extremis, and the Courts will not allow loose expressions, badly connected sentences, and incautious language, to defeat intentions and purposes, well ascertained by a consultation of the entire will. There are cases in which the intention of the testator cannot be ascertained, and then the will, a provision involved in doubt, cannot be executed. There are also cases in which the intention may be arrived at satisfactorily to the expounder, and yet it may be so defectively expressed that the Court could not execute the will according to the intention, without supplying words so liberally as to amount to the making of a will agreeably to the presumed intention. This the Court will not do. The case of Spalding vs. Spalding, Cro. Car, 185, is an early instance of a departure from the letter of a will to give effect to the intention of the testator. “John Spalding had issue three sons, John, Thomas and William. He devised land to John, his eldest son, and the heirs of his body, after the death of Alice, *129the devisor’s wife; and if John died, living Alice, that William shall be his heir.” “John dies, having a son, in the life of Alice. Alice dies and William claims the land.” According to the letter of the will he is clearly entitled, yet the Court examining the whole context of the will, determined the case according to the intent of the testator, and that intent was, that if John die without issue, living Alice, William should have it.
It is unnecessary to extend this examination, for the purpose of determining whether, if there had been a child, that ■child could have taken any thing under the will, there being ao express gift to it, or whether the parent must not have taken an estate tail, under the English law, descendible to the child, and that under our law, the mother being the first taker, would not have taken an absolute fee simple in the property. According to the construction I place on the will, I have said much that I might have omitted. The estate vested in the testator’s children at his death, in the manner I have hereinbefore stated, and the limitation over to the brothers, if good, could take effect only on the death of the wife and children, before the latter arrived at maturity, or in the event of the death of all, single and childless, before they attained the age of twenty-one years.