Carswell vs. Schley et al. an equal participation in said trust property. But complainants say that if said last named claimants are entitled to any part whatever of said estate, (which they deny,) it would only be an eighth each in the one-half of the aforesaid rents, issues and profits (and their increase) so received by Miller with the corpus of the estate, when he went into possession under said marriage articles. The bill then prays for an account of said property, and that the defendant, John W. Carswell, executor, may show what part of the estate now in his hands as such executor, was the original property of the said Rosina S., and what part of said estate is the direct increase or profits thereof, and either turn over the same or pay complainants its value in money; and that the said R. J. Morrison and Gideon Dowse and wife be made parties defendants and their rights adjudicated in this proceeding; also, for the writ of subpona. To this bill the defendant, Carswell, as executor of Miller, filed a demurrer on the following grounds: 1st. There is no privity between himself and said co-defendants, nor do complainants show by their bill such a case as entitles them to proceed against this defendant and the said Morrison and Dowse and wife as co-defendants. 2d. There is no equity in said bill, and the complainants are not entitled to the relief thereby prayed, or any part of such relief. 3d. If they are entitled to any relief whatever, they have a complete and adequate remedy at law. Robert J. Morrison and Mrs. Dowse filed an answer in the nature of a cross-bill, admitting the facts alleged, but denying that by the terms of said marriage contract complainants have any greater interest in the property therein settled upon their mother than these defendants. On the contrary, they charge that said property, and its increase, was settled upon their said mother during coverture with Miller, and after her death the use and enjoyment thereof was given to said Miller for life, with power to dispose of one-half by will at his death; that as to the other half the power was given to their said mother to VOL. LVI. 8. Carswell vs. Schley et al. dispose of that by will at her death; but the operation and effect of her will, should she make one, was to be postponed until the death of Miller, to whom said instrument conveyed the use and enjoyment of the whole property for life in the event of his surviving their said mother, which, in fact, happened. They state that their said mother died intestate, and they charge that Miller died without executing the power conferred on him by said marriage contract of disposing of onehalf of said property by will, or of any part of the same, and that, therefore, by the terms of said contract the entire property and its increase passed to the persons who, at the time of Miller's death, were the heirs of their said mother, and they aver that respondents and complainants were the only heirs. Complainants have received a large part of said property from their said father, to-wit: each a plantation and much valuable personalty, whereas respondents have received nothing. They pray that complainants may discover and account for what they have so received, and that Carswell, as executor, may be compelled to account to complainants and respondents for all the property embraced in said marriage contract, and its increase, and that complainants may be compelled to bring their said advancements into hotchpot and account for them in any division that may be decreed between them and respondents. Discovery is fully prayed against complainants, but waived as to Carswell, executor. They pray a decree settling all the equities between the parties, and for general relief. Carswell, as executor of Miller, filed a general demurrer to said cross-bill. Both demurrers were overruled, and Carswell, executor, excepted. JOHN J. JONES; A. M. RODGERS, for plaintiff in error. S. A. CORKER; W. W. MONTGOMERY; JAMES S. Hook; PERRY & BERRIEN; E. F. LAWSON, for defendants. BLECKLEY, Judge. Carswell vs. Schley et al. The true intention of the parties is to be sought for. That is the end of all construction. The children of the former marriage were already provided for. Each of them had a share of the Morrison estate equal to that which came to Mrs. Morrison, the mother. In anticipation of a second marriage, she wished to provide for the possible offspring of that marriage, securing to herself, in the corpus, mere equality with each future child. The income which might accrue during the joint lives of herself and her · intended husband she wished to go to the latter for their mutual enjoyment. In the event, however, of a separation, she desired it to be exclusively her own. If she survived him, then the whole corpus was to be hers, unless there were children of the marriage to share it; in which case, so much was to be hers as had not vested in them under the previous provisions of the instrument. If without any children of the marriage he survived her, the whole, or if with such children, her due share, was to vest in him during his life; half of it subject to disposition or descent, (equivalent to a vesting of the fee,) and the other half subject to her own disposition by will, and if not so disposed of, to go where the laws of the state might cast it at her death. We think this the most probable scheme of the marriage settlement; and it is one which the words will bear out better than any other that we have heard suggested or been able to surmise. 1. The first trust declared is unimportant, being merely for the benefit of Mrs. Rosina S. Morrison until her intended marriage with Miller. The next, after putting a negative upon liability for his debts, is, "that the said property, together with its increase, shall remain and inure to the proper use, benefit and behoof of the said Rosina S. Morrison and such child or children, being issue of her body, lawfully begotten by the said Baldwin B. Miller, to his, her or their heirs, executors, administrators or assigns, forever." Out of these words arise an equitable estate that must be referred to one of 1 Carswell vs. Schley et al. three classes-an estate tail, an estate for life, with remainder to future children, or an estate in fee, subject, on the birth of children, to become an estate in joint tenancy or in common, the mother and children being thenceforth co-tenants in fee. It is not an estate tail, for the terms, "such child or children, being issue of her body, lawfully begotten by the said Baldwin B. Miller," are equivalent, in this instrument, to "such child or children as may be of her lawfully begotten by said Baldwin B. Miller;" the word "issue" being used in the sense of children proper, and not in the sense of a line or succession of descendants: 25 Georgia Reports, 305. It is not an estate for life in Mrs. Miller, with remainder to children; because (not to speak of any other reason,) subsequent provisions of the instrument show conclusively that her estate was to endure beyond her own life, one-half going to Miller, substantially in fee, on condition of his survivorship, and the other half being subject to a life estate in him, and to final testamentary disposition by her. This same fact also comes in aid of the view above presented against the theory of an estate tail; as, by these later provisions, Mrs. Miller's estate was to outlive her and go in the direction indicated whether she left issue or not, which is inconsistent with a purpose that the issue should take by way of entail. Two children were born of the marriage, and still survive, each of whom became a joint tenant or tenant in common with the mother, in the fee of the whole corpus, including the increase. For children not in esse at the execution of the conveyance to take thus under a marriage settlement, a trustee being interposed to receive and hold the legal estate, is no novelty. Even under ordinary trust deeds they can take: 52 Georgia Reports, 425; Tucker vs. Lee, this term. Since the constitution of 1777, joint tenancy is resolvable virtually into tenancy in common: 23 Georgia Reports, 325. Thus far the language of the settlement is free from obscurity or real difficulty. It will abide severę scrutiny, and bear a rigid application of the canons of construction. It is, moreover, in strict accord with a not infrequent or unreasonable Carswell vs. Schley et al. intention of the parties to such instrument, the setting apart of an equal share of the wife's fortune to herself and each child of the contemplated marriage. With this much of firm ground to stand upon, we cannot escape the conviction that the interest of these children was not intended to be cut down or in any way modified by later provisions of the settlement. That the two children became entitled and remained entitled to two thirds of the corpus, we must believe; and what is apparantly to the contrary in the latter provisions, should, if possible, be reconciled with, and not be permitted to destroy, an antecedent provision which, besides the advantage of antecedence, has the advantage of perfect clearness. We think reconciliation possible. The passage to be now reconciled is as follows: "And it is further expressly understood between the parties to this instrument, that if the said Baldwin B. Miller should die before the said Rosina S. Morrison, that the above property, with the increase of the negroes, shall go to, and vest in, the said Rosina S. Morrison, to her and her heirs, executors, administrators and assigns forever. And it is further understood that if the said Rosina S. Morrison should depart this life, with or without issue, that the aforesaid property shall vest and belong to the said Baldwin B. Miller, during his natural life, and at his death one-half of said property shall go and be disposed of in such manner as he may think proper by last will and testament, or otherwise, to his heirs, executors and assigns; and the remaining half or moiety of said property, the said Rosina S. Morrison shall and have full power and authority to dispose of by last will and testament, but should she make no disposition of it, it shall then vest in, and belong to, such person or persons as would be her heirs agreeable to the laws of the state." It is true that the words "above property" in the first of these two sentences, and the words "aforesaid property" and "said property" in the second, seem to refer to the whole corpus; and it is true, also, that there is an express declaration that Miller was to take, on his wife's death, whether she died "with or without issue." If such terms as "subject to the foregoing |