The opinion of the court was delivered by

The plaintiff brings this action for the partition of a certain tract of land containing 500 acres, more or less, more fully described in the complaint, claiming that he and his five brothers and sisters, as children of Andrew J. Mobley, deceased, defendants herein, are entitled each to one undivided thirty-sixth part thereof, and that the three children of Lucretia McCrorey, deceased, who are likewise defendants, *119are each entitled to two thirty-sixths thereof, and that defendant, Cummings, who has, since the commencement of this action, conveyed his interest to H. M. Haig, who has been made a party defendant herein and is now the appellant, is entitled to the remaining twenty-four thirty-sixths during the lives of the surviving brothers and sisters of said Andrew J. Mobley and Lucretia McCrorey, named in the complaint. The plaintiff alleges that the said tract of land now sought to be partitioned is a part of the residuary estate of his grandfather, John Mobley, and his claim is based upon the following clauses contained in the will of the said John Mobley :

“8th item. All the residue of my estate, both real and personal, I give, devise, and bequeath unto my wife, Catherine Mobley, in trust, first, that my said wife may have so much thereof for her support and maintenance as she may deem necessary ard proper ; and, secondly, in trust, that she will divide the same among my children as she may think right and equitable, according to her best discretion, excepting my three children, Marion R. Mobley, Mrs. Dorcas McCrorey, and Mrs. Nancy Thompson (now Mrs. Jones), which three children are to receive no part of the above residue given to my wife; and in further trust, that my said wife shall, by deed to be duly executed and recorded by her, subject the property so given by her in said division (to) the same limitations as are contained in the 5th, 6th, and 7th clauses of this my will.

“9th. In case my said wife shall die before me, or in case my said wife shall survive me and die before she has executed the trusts aforesaid; in the first case I give, devise, and bequeath said above named residue, given to my wife ip trust, to my son, Andrew J. Mobley, in trust, that he, according to his best discretion, will divide the same among my children, excepting the three above excepted in the 8th clause, retaining to himself so much thereof as he may think right and proper, and retaining in his hands as trustee of my son, Reuben Mobley, so much thereof as he may think right and proper. And in the second event above mentioned, that is, if my wife having survived me and partially executed the trusts aforesaid, I give, devise, and bequeath to my said son, Andrew, the residue of said property so undisposed *120(of) by her, in trust that he will carry out and perfect the trusts directed to be executed by iny said wife.

“10th. I do hereby impose upon the property which my son, Andrew, or my said son, Heuben, may receive the same limitations as are imposed on the property given in the 5th, 6th, and 7th clauses of this my will.”

Of the clauses referred to in the 8th and 10th clauses as defining the limitations, only the 6th is set out in the “Case” from which we infer that it is to be taken as a fair sample of the other two. The limitations as there defined may be stated briefly to be, to the devisee for life, with remainder to such issue of the devisee as may be then living. So that, practically, the claim of the plaintiff is that the land in question constituted a part of the residuary estate of the testator, and that the share of his father therein could be held by him only for his life, and that upon his death the same was vested in plaintiff, jointly with his brothers and sisters, and that the same is true as to the share of Mrs. Lucretia McCrorey. This claim of the plaintiff' is stoutly contested by the appellant upon various grounds, which will be hereinafter referred to and considered so far as the same are necessary to a decision of this case.

Without undertaking to state the facts necessary to a full consideration of the several questions raised by this appeal, for which reference must be had to the report of the referee and the decree of the Circuit Judge, both of which should be embraced in the report of this case, it will be sufficient to state here certain leading and more prominent facts. It appears that the testator, John Mobley, having duly made his last will and testament some time in the year 1860, departed this life in June, 1879, his wife, Mrs. Catherine Mobley,, having predeceased him. For some time after his death all parties concerned supposed that he had died intestate, and therefore letters of administration upon his personal estate were granted to one of his daughters, who seems to have made distribution of the same under the statute for the distribution of intestates’ estates. Soon after the death of John Mobley, to wit, on the 24th of July, 1879, the surviving children of said John Mobley united in executing a deed for the land in question, to the children of Mrs. Dor.cas McCrorey, a *121predeceased daughter of the testator, who, with the two. others named, had been excluded from participation in the residue of testator’s estate by the 8th clause thereof, as stated above. This deed purports to be in consideration of the sum of three dollars, “and for the purpose of equalizing the division of the real estate of said John Mobley, deceased, and in pursuance of the intention and wish of our said father,” and contains full covenant of warranty. Subsequently to this, the will was discovered and admitted to probate.

The land covered by this deed is now claimed by the appellant, H. M. ITaig, through intermediate purchasers for valuable consideration, from the children of Dorcas MeCrorey. Appellant also claims that said land was conveyed to' Dorcas MeCrorey by the testator in his life-time; and also that he made a parol gift thereof to the children of said Dorcas MeCrorey, but his claim, as we understand it, rests principally upon his construction of the will, which will be presently noticed. It does not appear that the land in question was ever retained by Andrew J. Mobley as his share, or as the share of his brother, Reuben, or that he was ever in possession thereof. On the contrary, although he lived for about a year after the land was sold at public outcry, as the property of those of the children of Dorcas MeCrorey who had bought up the interests of the others, and bought by a stranger to the family, there is no evidence that he ever took any steps to reclaim the land or set up any claim to it as a payt of the residue of the testator’s estate. Although there is evidence tending to show that Andrew J. Mobley conveyed to some of the children of the testator portions of the residue, there is no evidence that the trusts alleged to have been cast upon him by reason of the death of his mother, under the 9th clause of the will, had been fully executed ; for there is no evidence, and no claim, that the land here in question, alleged to be a part of the residue, was ever conveyed by him to any one under the terms of the will. So that if the trusts imposed upon his mother by the 8th clause of the will, were cast upon him, by reason of her death, under the 9th clause, then such trusts, if executed at all, were only partially executed.

*1221 *121After this brief outline of the facts, we will proceed to con*122sider what we regard as the controlling questions in the case. The first question to be considered is, whether the Circuit Judge erred in holding that the land in question never passed to Mrs. Dorcas McOrorey by deed, or to her children by parol gift from the testator ; for if there was error in this respect, then the other questions presented cannot arise. We agree entirely with the view taken of this matter by the Circuit Judge. There was practically no evidence of the execution of any deed from testator to Dorcas McOrorey, for though such a deed was prepared at the same time that others were prepared for others of the children, there is practically no evidence that it was ever executed; for the strongest witness for appellant, J. C. Caldwell, only says that “this deed was signed by John Mobley on 12th April, 1871, as witness infers from the fact that witness drew up other deeds” on that day. He does not say that the deed was ever delivered, and there seems to be no doubt, from the testimony, that the testator retained all of the deeds in his possession and actually altered one of them. In view of the strong testimony showing that the deed to Dorcas never was executed, we think the Circuit Judge was entirely correct in his conclusion that no such deed was ever executed. So, too, as to the alleged parol gift of the land to the children of Dorcas. At most, it amounts only to evidence of an intention to give, for no witness testified that he ever heard testator say he had given the landto those children. But, Avithout going into any further discussion, Ave are content to rest our conclusion upon the reasoning of the Circuit Judge.

2 The next inquiry is, as to the proper construction of the will; and here Ave are unable to concur Avith the Circuit Judge. It Avill b.e observed that the testator, after providing in the - 8th clause of his will for the disposition of the residue of his' estate amongst his childen, except the three specially excluded, in such manner as testator’s Avife might think right and equitable. Avith the special injunction to the wife that she should, by deed, subject the property so given oft’by her to certain limitations therein defined, by reference to preceding clauses of the will ; the testator, in the 9th clause of the will, looking to tAYO contingencies Avhich might very well arise, proceeded to pro*123vide for them in two distinct and separate sentences of that clause. The first contingency for which he makes provision, was that of the wife dying before the testator — the contingency which actually occurred — in which the provision is that the residue is devised and bequeathed to Andrew J. Mobley, not, it will be noticed, upon the same trusts as the same had been given to the rvife, but, in the language of the testator, “in trust, that he, according to his best discretion, will divide the same among my children, excepting the three above excepted in the 8th clause, retaining to himself so much thereof as he may think right and proper, and retaining in his hands as trustee of my son, Reuben Mobley, so much thereof as he may think right and proper,” Avithout any such injunction as had been given to the Avife in the 8th clause, to subject the property given off by her to the children to any limitation Avhatever.

Having thus provided for the first'contingency — the one Avhich actually happened' — -the testator then proceeds, in a separate and distinct sentence, separated from the foregoing by a period, to make provision for the second contingency — that of the Avife surviving him and dying, after partially, but not fully, executing the trusts imposed upon her by the 8th clause — in which case the provision is that the property so undisposed of by the Avife is given to the son, Andrew, “in trust, that he will carry out and perfect the trusts directed to be executed by my said wife.” It is very clear that if the testator had stopped at the provision for the first contingency, Avhich actually happened, there could be no ground for claiming that the property intended for certain of his children should be affected by any limitation Avhatsoever; for there is not a Avord in the sentence providing for such contingency indicating any intention on the part of the testator that such property should, in that contingency, be affected with, any limitation of any kind.

*1243 *123So that in order to sustain the construction adopted by the Circuit Judge it is necessary to apply to the sentence providing for the first contingency, the concluding Avords of the sentence in Avhich provision is made for the second contingency, Avhereby, practically, the residue of the property is given to the son, Andrew, upon the same trusts as are declared in the 8th clause, in-*124eluding the trust to affix limitations to the portions given off to the several children ; and the precise question, therefore, is whether this can be done without violating the rules of construction. One of the fundamental rules is that the intention of the testator, as ascertained from the words which he has used, and not from any conjectures which the court may make as to what would naturally and probably be his intention. A testator, within certain limits not necessary to be mentioned here, has the absolute right to dispose of his property as he sees fit, and prescribe such conditions and limitations upon which it shall be received by the objects of his bounty, as he may think proper, and although a court may be of opinion that the provisions which he chooses to make are unnatural and inconsistent with the ordinary instincts of humanity, it cannot, for that reason alone, conclude that the testator must have meant something different from what he has said in plain terms; for that would be making, not construing, the will.

As is said by Johnson, J., in Manigault v. Deas (Bail. Eq., 298), in considering a somewhat similar question : £-But we are not permitted to give an effect to a will, contrary to the plain and obvious import of the terms used by the testator. * * * If speculations on the subject of intention were admissible, I should probably arrive at the conclusion to which this argument leads. Ignorant of the feelings which might have operated on the testator, I am ready to confess that I can see no reason why he should have made any distinction between these children. But we are forbidden by the rules of law to indulge in conjecture.” So, here we may say, that while it is difficult to conceive of any good reason why the testator should, in the sentence making provision for the contingency which actually happened, have prescribed no limitation over, and in the sentence providing for another contingency which never happened, he saw fit to provide for limitations over, yet, as these two provisions are contained in two separate and distinct sentences, the one in no way connected with or referring to the other, we are bound to give to each the construction which its plain and obvious terms import. The testator has not seen fit to say that the limitations provided for in the second contingency were intended to be applied to the provision made *125for the first contingency. As was said in Smith v. Hilliard (3 Strob. Eq., at page 223) : “There is no rule of law that prohibits a testator from devising different estates in the same lands to the same persons, on the happening of successive events.” And again : “Where there is a doubt as to the quantity of the estate devised, or whether it is vested, the rule is to presume that the testator intended to give an absolute rather than a qualified estate, and a vested rather than amontingent interest.”

It seems to us, also, that the provisions of the 10th clause of the will betray a consciousness on the part of the testator that he had not subjected the shares of the several children in the residue, in the event which has happened, to' any limitation ; for if he had, then there would have been no necessity for the 10th clause. Under that clause, if it had been shown that the land in question had been retained by Andrew for himself, under the provision made for the first contingency, then the claim of plaintiff might have been supported. But this was not only not shown, but the contrary appears to be the fact.

It seems to us that there is nothing in the will to show that the testator intended to subject the shares which the several children might receive, in the first contingency provided for, to the limitations provided for in the second contingency, which .has not, and never can happen, but rather the contrary; and that the only way in which this could be done would be by transporting the concluding words of the sentence providing for the second contingency, into the preceding separate and distinct sentence. This we think is contrary to authority. See 1 Jarm. Wills, 3rd Am. Edit., 412-415; Bowers v. Newman, 2 McMull., 472; Moon v. Moon, 2 Strob. Eq., 327; Dunlap v. Garlington, 17 S. C., 567; and Bell v. Towell, 18 Id., 95.

4 Inasmuch, however, as the share of the residue of the estate, which Andrew might be entitled to retain under the provisions of the 9th clause of the will, is expressly subjected to the limitation over by the terms of the 10th clause of the will, if it can be made to appear that Andrew was entitled to the whole or any portion of the tract of land in question, then the plaintiff would be entitled to partition of such share. But it -will be remembered that the provision made in the contingency which *126has happened — not that the residue shall be divided equally amongst the children for whom it was intended, but that it shall be divided by Andrew, according to his best discretion, he retaining for himself and his brother, Beuben, what he may think right and proper ; and a.s the person invested with this discretion is now dead and therefore cannot exercise it, the rule is that the division shall now be made equally. Withers v. Yeadon, 1 Rich, Eq., 331, recognized in the recent case of Atkinson v. Dowling, 33 S. C., 424.

5 In order to effect an equal division w'here the discretionary power has been only partially exercised, as seems to be the case in this instance, the rule is, that in order to effect equality those who may have received portions of the property from the donee of the power, in his life time, shall not be entitled to receive anything more until those who have received nothing shall be made equal. Fortescue v. Gregor, 5 Ves., 553; Reade v. Reade, Ibid., 744. To determine the question whether the plaintiff is entitled to partition of the tract of land in question, it will be necessary for him to show that, under a division of the entire residue of the property, both real and personal, made under the principles above indicated, his father, Andrew J. Mobley, would be entitled to the whole or some portion of said tract. Now, while appellant has insisted in his argument here that so far from this being the fact, Andrew has in fact received more than his just proportion, yet as this matter was not passed upon in the court below, we cannot undertake to determine it here. The case must, therefore, be remanded to the Circuit Court for the .purpose of enabling the plaintiff, if he shall be so advised, to show that he is entitled to partition under the views herein announced.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry into effect the principles above laid down.