Chapman, C. J.
The case depends upon the construction to be given to the residuary clause in the will of Samuel Woods. The property is given to trustees, of whom the plaintiff is the survivor. They are to divide the interest and income of the personal property equally among the testator’s children. In case of the decease of either of them without children or lawful issue, then the income and 'nterest is to be divided among the survivors ; but in case of the decease of either of them leaving issue, *598then the capital of such deceased child’s share is to be equally divided among such issue, their heirs and assigns. The mere income during life is thus given to his children, and the capital is given to the issue of such of the children as may leave issue. In a prior clause, certain real estate and furniture are given to his widow during her life; and the trustees are authorized, in the residuary clause, as soon after her death as they may think proper, to sell all his real estate, and also all the personal property then held by them in trust, and divide the same equally among his children or their heirs, as the case may be, retaining only in trust, and for the purposes before mentioned, the several shares belonging to such daughter or daughters as may then be alive. The widow died in 1858, but the property has not been sold till recently.. George S. Woods died in 1867, without issue. On September 12, 1851, he made a deed of his interest in the estate to William H. Prentice. But, beyond his right to the income during his life, he had no interest to convey. Charles Woods died without issue in 1858, whereupon his share of the income passed to the survivors, and the capital to such of their issue as might become entitled to it. Mrs. Tucker afterwards died, leaving children. Upon this event, her children became entitled to the capital of her share, being one fourth part. The three surviving children, namely, Elisha C., Sarah E. and -Anna M., were entitled to the income of the remaining three fourths during their several lives. If the living daughters shall survive Elisha C., and if he shall leave no issue, they will be entitled :o his share of the income; and if he shall survive either or both of them, and they leave no issue, the income of the deceased child or children will go to him during his life. But the capital must be preserved for the children of Mrs. Tucker and such other issue as may be left. It is apparent, therefore, that the deed of Elisha C. could convey nothing except his right to the income that may accrue during his life. If the trustee were now to divide the property among the children, it is obvious that it would thwart the intent of the testator as stated above; for, the shares of the daughters being held in trust Elisha C. would, if he survived either of them dying without issue, take her share of the income. But aa *599his own share would be paid over to him, he would be able to dispose of it, and his sisters, in case they survived him, would lose the income of his share, and the issue would lose the capital. And the time when the trustee might think fit to divide the property might change its destination. The share of Elisha C. ought to be still held in trust, and the income thereof paid to his assignees during his life, and the principal kept by the trustee, so that, after the death of Elisha C., he can pay over both income and principal according to the direction of the testator.
The decree must be, that the plaintiff pay over to the children of Mary G. W. Tucker their share of the capital, including that of which the income was given to their mother, and their share of that the income of which was given to George S. and Charles Woods, who died without issue; and that he hold the balance in trust to pay over the income to Sarah E. and Anna M., and to the appointees of Elisha C. Woods. No direction is necessary as to the future distribution of the capital.
Ordered accordingly.