168 WINDER v, DIFFENDERFFER.—2 BLAND.

BLAND, C., 7th April, 1828.—This ease standing ready for hear-
ing, and the solicitors of the parties having been heard, the pro-
ceedings were read and considered.

After an attentive consideration of the will of the late Charles
Rogers, upon the true construction of which this controversy turns,
it is my opinion, that he devised the property, mentioned in the
complainants' bill, to his daughters for life, with remainder to their
children in fee simple; and upon the death of any one daughter,
without children, then her share was to go to the survivors and
their children. There is nothing in this will which shews it to
have been the intention of the testator, that his daughters, or their
issue should take an estate tail only. All four of his daughters
are now dead, and two of them, Ann and Mary, have left no issue;
consequently, the undivided shares of the property, in the pro-
ceedings mentioned, which were devised to the late Ann and
Mary, must pass, in two equal parts, to the testator's grand-chil-
dren, the one-half part thereof to the plaintiff Araminta, as the
daughter aud sole heir of the late Sarah; and the other half part
thereof to be equally divided among Amelia Diffenderffer, Michael
Diffenderffer * and Charles Rogers Diffenderffer, as the chil-
179 dren and heirs of the late Catherine. The bill prays for a
partition of the estate, and for an account of the rents and profits.
These prayers will be granted.

Decreed, that there be a partition of the lands in the proceed-
ings mentioned: and to the end, that this Court may be enabled to
make a just partition thereof; it is ordered, that a commission
issue to James Mosher, Benjamin C. Ridgate, Henry Didier, Wil-
liam F. Small, and Joseph Barling, authorizing them or any three
of them to enter upon, walk over and survey the said land; and to
divide the same, if it shall admit of division, according to the
rights and interests of the respective parties; that, is to say, two-
thirds of the whole of that which was devised to the said late Ann,
Mary and Catherine, as in the proceedings mentioned, to be laid
off as the portion of those who are to take on the death of the said
late Ann and Mary, without issue; which two-thirds is to be di-
vided into two equal parts, one of which is to be allotted to the
plaintiff, Araminta; and the other half of the said two-thirds, to-
gether with the said one-third of the whole, as the portion to which
the children of the late Catherine are entitled, to be divided into
three equal parts; one of which shall be allotted to the said Amelia
Diffenderffer, one other third part thereof to the said Michael Dif-
fenderffer, and the remaining third part to the said Charles Rogers
Diffenderffer, having regard to quantity and quality; and the said
commissioners be directed in the commission to make out a plot
and certificate of the said land, and of the divisions thereof, and
an accurate description of the same, and of the several parts there-