dissent"> Mr. Justice Fraser

(dissenting) : I cannot concur in the opinion of Mr. Justice Watts.

F. M. Trimmier had one child, Margaret V. Trimmier, now Margaret Mitchell. His mother and sister lived with him and took care of his little daughter, who was at the time of his death, not only unmarried, but quite young. Margaret V. afterward married a man named Mitchell. She had one child, Margaret F., who has recently married. Several nieces and nephews of F. M. Trimmier were also living with him. To these nieces and nephews he was very kind, and he was very fond of them.

*336 Mr. Trimmier’s will provided as follows:

“Item I. All the real estate and.all and every interest-'in real estate,-of which I may die seized and possessed or entitled to, I give and devise to my mother, Margaret H. Trimmier, for and during the term of her natural life, and after her death then to my sister, Margaret B. Trimmier, for and during the term of her natural life, and after her death then to my daughter, Margaret Trimmier, for and during the term of her natural life, and after her death then to such issue of my said daughter Margaret as may be living when my said daughter dies, to the said issue and their heirs forever. But if my said daughter should die without leaving issue her surviving, I give and devise all' the said real estate and interest in real estate, upon the death of all the life tenants above mentioned, to my nieces and nephew. Betty Trimmier, Alta C. Trimmier, Bell Darden, Bizzie McCarley, Thomas R.' Trimmier, and Mollie Trimmier, share and share alike; that is to say, one-sixth to each of them and their heirs forever.”

The question in the case is: Does the word “issue” mean “children”? The word “issue” does not ordinarily mean “cihldren,” and as said in the opinion of Mr. Justice Watts, if .it is to be so construed, the intention of the testator must be clear. To my mind it is perfectly clear that such a construction was not the intention. A parent owes a duty to= his own child, some more than others. Mr. Trimmier owed a supreme duty to his motherless child. The will shows wisdom as well as a just appreciation of his obligation. He owned a duty to his mother ánd sister who, in addition to the ordinary relation, had been kind to this very daughter, and had served her faithfully. It was dangerous to give his property to his little daughter absolutely, and allow her; in the unwisdom and indiscretion of youth to squander it or lose it. The will gives a life estate to his mother and then to his sister, who had served his child, and therefore could be relied upon to take care of her. It might be that Mar *337 garet V. still might come too soon into the possession of the property, so he gives her a life estate only, with remainder to her “issue.” If Margaret V. had at that time a child or children, it might well be said that the wellknown tender love a grandfather feels for his grandchildren impelled him to give a fee in remainder to- those grandchildren; but there were no grandchildren at that time. The testator, by the strict and legal terms of his will, certainly provided for Margaret F., whom he did not know. Then why not for the issue of Margaret F. ?

■ Margaret V. was a child and might not live, or living might not marry; but even if she should marry, she might die without issue. The contingency was provided for by a contingent remainder to his nieces and nephews, and he named them.

Margaret F. has recently married and issue is to be expected. There is a danger ahead for Margaret F. It is not improbable that within the course of two years there may be issue of Margaret F., who, under the clear terms of the will of its great-grandfather will be entitled to a handsome property, will be put on the world without a dollar.

Bofil v. Fisher, 3 Rich. Eq., 1; 55 Am. Dec., 627, does provide for a sale of property and bars contingent remaindermen not in tesse, but it also provides for a transfer of the interest to the fund. Mr. Trimmier was clerk of the Court for years and, it may be supposed, had some knowledge of the use of the word “issue,” and of the power of the Court to allow a sale for reinvestment. The only hardship to the parties is of their own making. The way is open for a sale for reinvestment in income-bearing property. If these people are willing to live in debt and want for the balance of their lives, it is their own fault. The door is open; the way is clear. It would be exceedingly awkward if, in the course of a few. years, a child should come into Court and *338 ask for a very large estate left to it by its ancestor, and it shall be necessary to turn it out of Court in poverty.

For these reasons. I dissent.

*332 Mr. Justice Coti-iran

(concurring) : I concur, in the opinion of Mr. Justice Watts upon the grounds which I shall present.

The object of this action is to confirm an agreement entered into by Margaret V. Mitchell and other devisees under the will of F. M. Trimmier, the agreement providing for a partition of the real estate of which he died seixed arid possessed. The question involved is whether or not the will created contingent remainders in the uriborn great-grandchildren of the testator. The matter is quite com-' plicated, and is made more confusing by the similarity in the names of certain beneficiaries under the will.

F. M. Trimmier was never married, but was the father of an illegitimate child whose name was Margaret V. Trimmier. She was taken" into his family, which consisted at the time the will was executed of his mother, Margaret H., a sister Margaret L,-, and certain nephews and nieces of two deceased brothers, William and Theodore. At that time the daughter was about 17 years of age. She afterwards married one Mitchell, by whom she had one daughter, whose name is Margaret F. She has lately married. There appear in this matter the mother, Margaret H., the sister Margaret L-, the daughter Margaret V., and her daughter Margaret F. To avoid confusion, they will be referred to as the mother, the sister, the daughter, and the granddaughter.

The questions involved turn upon the construction of item I of the will of F. M. Trimmier, which will be'reported. The real estate consists of nearly 2,000 acres of farm'land, and quite a large amount of city property in Spartanburg. The testator died in 1888, and at some time recently (the-date does not appear in the record) an agreement was executed by the daughter, the granddaughter, and the contingent remaindermen, by which certain of the real estate was apportioned to the contingent remaindermen and the balance of it to the daughter and granddaughter, in fee- *333 simple, discharged of all conditions imposed by the will; each branch of the family, the daughter and granddaughter on the one side, and the nephews and nieces on the other, relinquishing their claims reciprocally to the real estate apportioned to the other.

It is manifest that the completeness of this arrangement, its effectiveness in' passing title to the several apportionments, depends upon the question whether or not the will created contingent remaindermen in the issue of the granddaughter. The agreement is perfectly valid, of course, between the parties, so far as their individual interests, present or prospective, are concerned, but it is apparent that if contingent remainders are created in favor of the issue of the granddaughter, in the event that she should predecease the daughter, leaving issue, a deed from the granddaughter at this time would not convey a perfect title, and the same infirmity would exist in the title of the nephews and nieces to the property apportioned to them by the agreement.

The property is devised to the mother for life; at her death to the sister for life; at her death to the daughter for life; at her death to such issue of the daughter as may be living at the time of her death, to said issue and their heirs forever; with remainder over on default of issue to the nephews and nieces. Assume a condition that is entirely possible. The granddaughter dies before the daughter, her mother, leaving children. Upon the death of the daughter, the granddaughter having predeceased her, leaving children, would the children so surviving be entitled to the property as the issue of the daughter? This depends upon whether the word “issue” is to be construed in its technical sense, or as “children,” so that the limitation would read: To the mother for life, at her death to the sister for life, at her death to the daughter for life, and at her death to such of her children as may be living at the time of her death in fee.

It is much safer, and tends more to the stability of the law, that in the construction of written instruments the *334 words used should be given their accepted legal interpretation, rather than to wander into the domain of conjecture-as to the maker’s intentions, unless that interpretation is controlled by the clearest expression of the intention, contained in the instrument. See the very pertinent quotation from the case of Carr v. Porter, 1 McCord Eq., 71, in the concurring opinion of Mr. Justice Fraser in Strother v. Folk, 123 S. C., 127; 115 S. E., 605.

I consider it as settled, in this State, that when a testator uses technical terms throughout a will, the Court has not the power to and will not undertake to substitute other words for them, or to disregard their legal effect, or to adopt their popular instead of their legal meaning, unless impelled to do so by expressions contained in the limiting clause, or- elsewhere within the four corners of the will. Smith v. Hilliard, 3 Strob. Eq., 211.

It is equally true that if from superaded expressions, or from the context, or from other parts of the will, it is manifest that the testator used the term “issue” as synonymous with “children,” or intended to describe a class of persons to take at a particular time, “issue” will be construed as “children.” McLure v. Young, 3 Rich. Eq., 559.

I think that it is clear, even if it cannot be said that the testator intended to use the word “issue” in the sense of “children,” he certainly intended what is the legal effect of the limitation, whether he intended it or not, to describe a class of persons to take at a particular time, which constituted them purchasers. The granddaughter, therefore, took a contingent remainder in fee; a deed from the daughter of her life estate, and of the granddaughter of her remainder in fee, carries a good title, under the agreement, to the other contingent remaindermen, the nephews, and nieces, and a deed from the latter to the former has the same effect. The authorities cited by the writer in his dissenting opinion in the case of Strother v. Folk, supra, are. conclusive upon this question.

*335 I think, therefore, that the decree of his Honor, Judge Mauldin, should be affirmed.

Messrs. Justices Watts and Marion concur.

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