William A. China and others vs. George W. White and others, 5 Rich. Eq. 426

The opinion of the Court was delivered by Dae.gan, Ch. In announcing the judgment of the Court, in this case, I deem it necessary to add but little to what has been said in the Circuit decree. The diffidence and doubt with which I arrived at and expressed my conclusion, upon the Circuit, have been greatly diminished, by finding my opinion supported by the judgment of the Court of Errors, in Ward vs. Waller, 2 Sp. 786, which was not brought to my notice, or considered by me, upon the Circuit trial.

In the case cited, the testator, William Waller, bequeathed legacies to his children ; and among others, he bequeathed to his son, Samuel Waller, the use of certain negroes ; to him and the lawful issue of his body forever. In a subsequent clause, the testator declared, “if any of his children before named should die under age, or without leaving lawful issue of their body, that the legacy bequeathed unto them, and the property given to them, be equally divided among his surviving children,” &c.

The limitations of this will, it will be perceived, are very similar, in all respects, to the limitations under the will of William Taylor. There is another strong feature in the resemblance. The question was as to the limitation of the negroes given to the testator’s son, Samuel Waller. And he was over the age of twenty-one years, at the execution of the will. This fact appears obscurely upon the report of the evidence, but is said to have been earnestly pressed in the argument, and was assumed by the Court of Errors, in the argument accompanying the judgment.

The case was reasoned by the Court, upon the supposition that the fact existed. In the construction of William Waller’s'will, “ or ” was construed “and,” and the fact that Samuel Waller, the first taker, was of age at the execution of the will, was considered not to vary the

interpretation. The two cases, as to this point, could scarcely have been more similar. The decision is not without strong support from the case of Usher vs. Jessep, 12 East, 288. I am satisfied with the Circuit decree. Subsequent reflection has rather strengthened my opinion, therein expressed. This Court concurs in the conclusions of the Circuit decree. It is ordered and decreed, that the said decree be affirmed, and the appeal be dismissed. Johnston, Dunkin and Wardlaw, CC., concurred. Decree affirmed.