The opinion of the court was delivered by
Mr. Chief Justice McIver.
The facts of this ease are so fully and clearly stated in the Circuit decree, which should be *142incorporated in the report of tbe case, that we do not deem it necessary to recapitulate them here. Indeed, we might well rest our conclusion upon the reasoning employed and authorities cited by his honor, Judge Izlar; but in defereuce to the earnestness with which this appeal has been pressed by the counsel for appellants, we will not content ourselves with a simple affirmance of the Circuit decree.
It is very obvious that the controlling question in this case is as to the proper construction of the fourth clause of the will of the testator, Osmund Woodward, under which all parties claim. That question depends largely, if not entirely, upon the question, whether the rule in Shelley’s case applies in the construction of this will. It will be observed that the devise is “to each of my daughters,” naming them, “for and during the term of her natural life, to and for her sole and separate use, benefit and behoof, and in no wise to be subject or liable to the debts, contracts or encumbrances of any husband, and at her death to the issue of her body, who may be then living.” The further provision is, that “in case either of my daughters shall die without leaving issue of her body then living,” all the property previously given to her “shall be equally divided among her surviving sisters, to and for their sole and separate use, benefit and behoof respectively, for and during the term of their natural lives respectively, precisely in all respects as the original share or portion above devised and bequeathed to them respectively, and at their several and respective deaths, to the issue of their bodies who may be then living.”
The land in question (being the tract which had been allotted to Jemima Harrison, one of the daughters, by the executors under the terms of the eleventh clause of the will), upon her death in 1865, “without leaving issue of her body then living,” became divisible, in equal shares, amongst her four surviving sisters, of whom Begina Gadsden, the mother of plaintiffs, was one; and the practical inquiry is, what was the nature of the estate which she took in her undivided one-fourth part of said land"? Did she take a fee conditional, which, by the birth of issue, had become absolute, or did she take an estate for life, with remainder to the issue of her body (the plaintiffs) who *143were living at the time of her death? If the former, then the property passed, under the sale made in the proceedings for partition of the Harrison tract, through various intermediate conveyances, to the appellant Desportes; but if the latter, then, upon the death of Regina Gadsden in 1891, the title passed to the plaintiffs, who, though in esse at the time, were not parties to the proceedings for partition.
1 It may be conceded, for the purposes of this case, that if the language of this devise had been to Regina Gadsden, and at her death to the issue of her body, with nothing more, then the rule in Shelley’s case would have applied, unless there were other controlling circumstances, hereafter to be adverted to, to prevent such a result. But in this case there is something more. Here the words are not simply to the issue of her body, but to the issue of her body “who may he then livingr,” which, it seems to us, negatives an intent that the issue should take in indefinite succession, and, on the contrary, indicates an intent that certain issue, not susceptible of designation by name, and, therefore, described as a class — -“who may be then living” — should take as purchasers. These words unquestionably show that it was not the intent that the issue generally should take, but, on the contrary, only such of the issue as might then be living, which would be equivalent to saying such issue as might then be surviving. If, therefore, the intention was not to give the property to the issue generally who could take through their ancestor, but to certain persons who could bring themselves within the terms of the devise descriptive of the class, they must take as purchasers, and not through their ancestor. These views are fully supported by the authorities cited in the Circuit decree, especially the case of McCorkle v. Black, 7 Rich. Eq., 407, which seems to be directly in point.
2 Counsel for appellant contends that the words “then living” have no effect upon the previous word “issue,” and in support of his contention cites the ease of Hay v. Hay, 3 Rich. Eq., 387, quoting certain language used by Johnston, Ch., in his Circuit decree. But he overlooks two important considerations: 1st. The language of the will there under consideration is very different from that found in the will which *144we are called upon to construe. There the devise was to S.'B. “and the heirs of her body,” and should she “die without living issue of her body, then” over, &c. Here, however, the language of the devise to the daughter is, “for and duriug the term of her natural life, * * * and at her death to the issue of her body who may be then living.” Passing by the fact, that in the former case there was no distinct devise for life, while here there is, what we wish to call attention to, is the fact, that in Hay v. Hay, the little but important word “then” is wanting, while here it is found. While, therefore, there was some ground to contend that the phrase, “die without living issue,” meant no more than the phrase, “die without issue,” and that the interposition of the word “living” was meaningless, and could have no effect in confining the word “issue” to any particular class of issue, yet there would be no ground for such a contention here, where the word “then” necessarily confines the general word issue to a particular class of issue, to wit: those who might be living at the time of the death of the person named as the life tenant. 2d. It appears, moreover, that upon the reargument of that case (Hay v. Hay, 4 Rich. Eq., 378), that although Chancellor Johnston still adhered to his view as to the effect, or, rather, want of effect, of the word “living,” his view was distinctly repudiated by the other three chancellors.
3 We may add another reason why the rule in Shelley’s case cannot apply to this devise. Here the estate given to the daughter is an equitable estate, while that given to the issue is a legal estate. The devise is not merely to the sole and separate use of the daughter, but by the codicil to the will trustees are appointed to preserve such separate estate- When, therefore, the life estate of Jemima Harrison .fell in, Regina Gadsden took an equitable estate, while her issue took legal estates. Where this is the case, it is well settled that the rule in Shelley’s case does not apply. Holbrook v. Gaillard, Riley Ch., 174; Austin v. Payne, 8 Rich. Eq., 9; Burnett v. Burnett, 17 S. C., 550. It will be observed that the estate of Regina Gadsden vested in 1865, prior to the adoption of the present Constitution.
*1454 As to the second, third and fourth positions taken by counsel for appellant in his argument here, we do not find that the questions there discussed were either presented to, considered or decided by the Circuit Judge, nor do we find any exception raising such questions. But we may add, that we do not think that either of these positions could be sustained, even if they were properly before us. If, as we have held, Regina Gadsden took only a life estate, with remainder to the plaintiffs as her issue living at the time of her death, nothing that she did in her lifetime could affect the legal rights of the remaindermen, and no order made by the court in the proceedings for partition, to which these plaintiffs were not parties, although they were then susceptible of being made parties, can be allowed to impair their rights. As to the fourth position, it is now too late to raise any such question.
5 6 It only remains to inquire whether there was any error in the Circuit decree as to the matter of betterments. The Circuit Judge having allowed the defendants’ claim for betterments, so far as the alleged improvements were made after he acquired title, and there being no exception to or appeal from that portion of the decree, the plaintiffs cannot now make the question, which they have raised in the argument here for the first time, as to whether the appellant can make any claim for betterments at all. The only question, therefore, which we can consider is that raised by the appellant in his grounds of appeal, namely, whether there was error in confining his claim to such improvements as he had put upon the land after he acquired title. It seems to us that the view taken by the Circuit Judge is fully sustained by the terms of the act. See act of 1885, 19 Stat., 353, where the provision is that in an action for the recovery of lands, &c., “the defendant who may have made improvements or betterments on such land,” believing at the time “he malees such improvements,” &c., shall be allowed to set up a claim for so much as the land has been increased in value by the improvements “so made.” And in another act upon the same subject, passed on the same day (act of 1885, 19 Stat., 432), the language used is “the improvements put thereon in good faith by the defendant.” *146The words which we have italicized in the foregoing extracts from the statutes show very clearly that the view adopted by the Circuit Judge was correct.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.