Gregory v. . Beasley

Daniel, Judge, after stating the case as above, proceeded as follows: There are three sets of claimants upon the share that fell to the intestate, Mary Lucilla Gregory. First, the two surviving brothers. Secondly, the two surviving brothers and the defendant, the administrator of the deceased sister, Maria. Thirdly, the next of kin of Mary Lucilla, under the statute of distributions. The executory devise being good in law, the next of kin, 'as such,- have, we think, no right to any of the share. It is very probable that the testator, if he could have foreseen the *27 events which have happened, might have limited a part of this fund to the child of Maria. But this Court can only con J strue wills; it is not allowed to make them for testators. The testator has said, that if one, or two, or three of his children should die under age, or without issue, “ for all the property to go to the surviving ones forever.” The meaning is, that all the property, or original share of one, two, or three of his children, dying before coming to age, or without issue, should go over to the child or children then surviving. The expression “ surviving ones,” shews this to be his meaning. We do not subscribe to the argument, made by the defendants’ counsel, that the testator meant, if either one, two, or three of his children should die before the time of division, viz: before Frederick arrived to the age of 21 years, then only the interest of the person so dying, should go over to the survivors; but not if any died after the time ofidivision. We can find nothing in the will, to tie up the contingency only to the time before'the division. We think that the testator meant, that the property which he gave to each of his children, should be divested, and go over to the survivors, if any of the four children should die without issue, before they arrived at the age of 21 years. This opinion is, perhaps, fortified by the fact, that the testator must have known, that when Frederick should come to the age of twenty-one years, his daughter, Mary Lucilla, would only be twelve years old. Yet he says, (in the clause,) that if either die under age, and without issue, the property is to go to thp survivors; which tends to shew,, that he did not mean to limit the contingency up to the time of the division only, but afterwards, also, if the event should occur. Mackey and Frederick, being the only children surviving at the death of their sister, Mary Lucilla, are entitled to the said share in moieties. Per Curiam. Decree accordingly.