Decree.

liable to the plaintiffs for the legacy of $2,000, bequeathed in the will of Mary Carter to Edwin Scott and James Scott for life, and in default of issue of the body, of the said Edwin Scott and James Scott, then to the daughter of testatrix, Sarah Cralle, if alive, and, if not, to her children; and that the said circuit. court should have decreed against the said defendants, in favor of the said plaintiffs the said $2,000, with interest from the date of the death of James A. Scott.

It is therefore decreed and ordered that for the errors aforesaid the decrees be reversed and annulled; and that the appellants recover against the appellees their costs by them expended in the prosecution of their appeal here; and it is ordered to be certified to the said circuit court of Nottoway county, with instruction to said court to decree the payment of the said $2,000 by the defendants to the plaintiffs, with interest as aforesaid; which is ordered to be certified to the said circuit court.

DECREE REVERSED.

Syllabus.

Richmond.

PETTYJOHN'S EX'OR AND ALS. v. WOODROOF'S EX'OR.

May 10th, 1883.

1. WILLS-Construction—Limitation on failure of issue-Remaindermen— Case at bar.-P., dying in 1822, by his will divides his estate between his six children and his grandson, W., giving each one-seventh, and providing that W.'s share should be under management of trustees, for his use until he shall reach twenty-one years of age, or marry, and that in case W. die leaving no issue of his body, his share and its increase shall go to testator's six children, or their representatives. W. never married, but reached twenty-one years of age, received his share, and died in 1875, without issue of his body, leaving a large estate. HELD:

1. W. took a life estate in his share, remainder to P.'s children, or their representatives, contingent upon W.'s dying without issue of his body; W.'s estate is liable for all the property so received by him.

2. If any of said property remained in kind at his death, it passes in kind to remaindermen. If he had converted any, his estate is liable for its value, with interest from his death. But for such slaves as died or were emancipated in his possession, his estate is not liable. For the proceeds of such slaves as he may have sold, his estate is liable, notwithstanding their subsequent emancipation.

3. Remaindermen's claim is not barred by the statute of limitations. They had no cause of action until W.'s death. That occurred in 1875. Their suit was brought in 1877.

4. They had no vested right in the slaves or other property, until death of life tenant without issue; and before that event they cannot be held to have acquiesced in any act concerning same; and no charge of laches can attach to them.

5. The policy of the law concerning the speedy and absolute vesting of estates, has no application to this case. The terms of the will were within the policy of the law.

Statement.

Appeal from decree of circuit court of city of Lynchburg rendered May 17th, 1879, in a suit wherein Jesse M. Pettyjohn and Joseph Pettyjohn, executors of Joseph Pettyjohn, deceased, Charles Pettyjohn, administrator of G. W. Pettyjohn, deceased, William H. Curle, administrator of William Pettyjohn, deceased, C. T. Hill, administrator of Wyatt Pettyjohn, deceased, and also of Elizabeth Wells, deceased, and Eliza C. Ridgeway, Rhoda Ridgeway, and Harriet Ridgeway, executrices of Mary or Polly Ridgeway, deceased, are complainants, and John W. Daniel, executor of Seth Woodroof, deceased, is defendant.

William Pettyjohn at his death, in 1822, left a widow, four sons, two daughters, and a grandson, then an infant. His estate consisted of land, slaves, perishable property, and money. His will was recorded in Amherst. By it he provided for his widow a life estate. Subject thereto, he bequeathed one-seventh of his estate to each of his children and one-seventh to his grandson. The fifth and sixth clauses of his will are as follows:

"Fifthly. It is my will and desire that in case any of my children should marry and die without leaving lawful issue, then the share of such child so dying without lawful issue shall revert back to my surviving children to be equally divided between them.

"Sixthly. It is my will and desire that the share of my estate hereby given to my grandson, Seth Woodroof, be continued under the direction and management of my executors as trustees to his use till he arrives at the age of twenty-one years, or marry, and in case he should die leaving no issue of his body, then his said share and its increase to be equally divided between my children, William, Wyatt, Joseph and George W. Pettyjohn, and my daughters, Polly Ridgeway and Elizabeth Wills, or their legal representatives."

Seth Woodroof never married. He died in Lynchburg the 4th of August, 1875, "leaving no issue of his body." He left a large estate, real and personal. From the executors Seth

Statement-Argument.

Woodroof received $1,678 in money and thirteen slaves, which he sold for about $10,000.

The plaintiffs claimed that on the death of Seth Woodroof the contingency happened on which his share under the will passed to the testator's children; that with the contingency prescribed, he held a resulting trust for them, and when he converted some of the slaves into money and appropriated it to his own use, the remaindermen acquired the right to take the proceeds of the sale instead of the slaves. At the hearing the circuit court decreed that Seth Woodroof, upon attaining the age of twenty-one years, became entitled to his share of the estate of William Pettyjohn, deceased, absolutely, without any restriction or limitation; and if this was not so, the contingent remaindermen would be entitled to so much only of the property bequeathed to Seth Woodroof as remained in kind at his death, and that the plaintiffs' bill be dismissed and that they pay to the defendant his costs.

From this decree the plaintiffs obtained an appeal from one of the judges of this court.

The positions taken by the defendant are set out in the court's opinion.

Edward S. Brown, for the appellants.

The court erred:

First. In holding that, on Seth Woodroof's attaining the age of twenty-one years, his title to his share of the estate of William Pettyjohn, deceased, became absolute-without any restriction or limitation.

Second. In holding that, if the first proposition were not true, the children of the testator would be entitled, only, to such property in Seth Woodroof's share, as remained in kind at his death.

Third. In not ruling that this suit is not barred by limitations.

Argument

Fourth. In dismissing the bill, and decreeing that the plaintiff's pay the costs.

First. The attaining of the age of twenty-one years, did not make the title of Seth Woodroof to his share of the estate of William Pettyjohn, deceased, absolute.

In the sixth clause, the testator manifests two leading purposes-one, as to the custody of the share of his grandson during his minority, or till his marriage, and the other, as to the disposition of his share, if he should die leaving no issue. As to its custody, he says: "It is my will and desire, that the share of my estate hereby given to my grandson, Seth Woodroof, be continued under the direction and management of my executors, as trustees to his use, till he arrives at the age of twenty-one years, or marry."

This clause marks the duration of the trusteeship-nothing

more.

In expressing his other purpose, the testator says: "And in case he should die leaving no issue of his body, then his said share and its increase to be equally divided between my children." The only period here mentioned, is the time when Seth Woodroof shall die, and the contingency is, his dying leaving no issue. No matter when his death might occur, the simple question would be, did he die leaving no issue? If so, then the contingency happened on which his share was limited to the testator's children. This construction is much strengthened by referring to the fifth clause "in case any of my children should marry and die, without leaving lawful issue, then the share of such child, so dying without lawful issue, shall revert back to my surviving children." Here, the testator manifests the general intention to keep his estate in the hands of his children, and the dying "without leaving lawful issue" is not confined to any particular period, but extends over the whole life of each child. If we read the sixth clause, in the light of the general intention manifested in the fifth, we see the same limitation as to the share of his grandson, which he prescribed