The opinion of the Court was delivered by

Eor the reasons assigned by Hon. Edward Mclver, Circuit Judge, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

I do not concur in the conclusion arrived at by a majority of the Court for the following reasons:

Mary Gibson, late of Marlboro county, died some years ago, leaving a will by which she devised to her two unmarried daughters, Miranda and Penelope—

“the use of all my property, both real and personal, during their natural lives, provided they never marry.”

The will further provided that if either of these daughters should die the survivor should—

“have the use of my estate or so much of it as is necessary to support her during her natural life, provided she remain single.”

It is further provided that should the income from the estate be more than enough to comfortably support the daughters, or the survivor, under the conditions named above—

“The said excess or surplus I will to be equally divided among the rest of my children then living.”

The executor is charged by the will with the duty of carrying it into effect according to its intent and meaning. The daughter, Miranda, predeceased Penelope, and the latter died on March 8, 1917. At that time the administrator had on hand from the income of the estate the sum of $1,484.33, of which he applied $1,167.55 to a judgment ■and other expenses incurred on account of the support of Penelope, leaving in his hands $316.68 as a surplus, distributable under the will.

After the death of Penelope, the lands and personal property were partitioned among the heirs, without reference to the deaths of certain of the children prior to the death of Penelope. In November, 1917, the administrator, collected $1,900 on account of rent of the lands for the year 1917, a note therefor having been given by the tenant to the administrator in the early part of that year for that amount. At the death of 'Penelope there were four living children of the testatrix; several of the children, neither *40 the names nor number being set out in the case, predeceased Penelope, some of whom it appears have assigned their interests in the estate to strangers. One of the four children is not made a party to this proceeding; none of the heirs or assignees of those who died before Penelope are made parties. The matter comes up upon a petition by the respondents in this appeal and the return of the administrator to a rule to show cause, setting up the -claims of the representatives in interest of the children who predeceased Penelope, and as stated in the circuit decree, was heard “by agreement of all parties.” I assume that the petition was filed in the Court of Common Pleas.

Unless this Court is prepared to render a decision in favor of the representatives of the children who predeceased Penelope, simply for the guidance of the administrator, assuming that.they will not object to a decision in their favor, it seems to me that it is but “rolling empty barrels about” to attempt to conclude the interests of parties not before the Court. The relators as they are styled, three of the four living children, contend that they are entitled each ■ to one-fourth of the $316.68, the surplus above referred to (as to which there appears to be no contest) and also to the same proportion of the $1,900 rent of 1917. The administrator suggests that-they are not so entitled, “to the exclusion of the other children of the testatrix, their heirs and assigns.” In other words, the point at issue is whether the $1,900 rent of 1917 should be considered a part of the surplus of income after providing for the support of Penelope and distributable as such under the will to the four living children or as intestate property of the estate, distributable to all the heirs.

In view of the provisions of the will, and of the death of the daughter, Miranda, Penelope surviving, the devise may be considered as in this form:

“I devise to my daughter, Penelope, the use of all of my property, both real and personal, or so much of it as may be *41 -necessary to support her during her natural life; the surplus from the income of which shall be divided equally among the rest of my children then living.”

It seems to me that the bare statement of this provision is a sufficient demonstration of the conclusion that Penelope did not take a life estate in the property of the testatrix, but that it was simply a charge upon the property for her comfortable support; that this charge was fully satisfied when, as it appears, there was at her death in the administrator’s hands a surplus of $316.68, over and above what was required for her comfortable support, and that what income was received after that time belonged to the estate, and was distributable as interstate property. Jackson v. Jackson, 56 S. C. 346, 33 S. E. 749.

Upon the death of Penelope there was already a surplus of income over expenditures; that income subsequently received could scarcely be considered surplus when no part of it was needed for her support and five-sixths of it was earned after her death.

(concurring.) Sections 3633 and 3634 of the Code of Raws, 1912, are as follows:

3633. “If any person shall die after the first day of March in any year, the crop on the lands which were in the occupation of the deceased shall be assets in the executor’s or administrator’s hands, subject to the debts, legacies, and distribution, the -taxes and expenses of cultivation of such crop being first paid.”

*37 3634. “The emblemjents of such lands which shall be covered before the last day of December following, shall, in like manner, be assets in the hands of the executors or administrators; but all such, emblements growing on' the lands on that day, op at the time of the testator’s or intestate’s death, if that happens after the said last day of December and before the first day of March, shall pass with the lands.”

The will of Mary Gibson provides that—

“After all my just debts are paid, I will and bequeath to my daughters, Miranda Gibson and Penelope Gibson, the use of all my property, both real and personal, during their natural lives.”

This provision of the will, standing alone, shows that as Penelope died after the 1st day of March, 1917, the crops of that year belonged to her and did not pass with the land, Newton v. Odom, 67 S. C. 1/45 S. E. 105. But the foregoing must be construed with the following provision :

“It .is my will, that should the income of my estate exceed enough to comfortably support my daughters, Miranda Gibson and Penelope Gibson, or one of them, should one of them die or marry, the said excess or surplus I will to be equally divided among the rest of my children, then living.”

As Penelope died after the 1st day of March, 1917, she had an interest in the crops of that year to the extent of a comfortable support, until her death. Having reached this conclusion, it necessarily follows that the excess, or surplus income of 1917, must be equally divided among the children of the testatrix living at the time of Penelope’s death.

It cannot be successfully contended that there was not a surplus, or excess, of income in 1917, on the ground that th<? income of previous years , in the hands of the administrator *38 at the time of Penelope’s death, rendered unnecessary a resort to the rents collected in 1917 for the comfortable support of Penelope. The answer of the defendant relative to this question is as follows:

“Since the death of the said Miss Penelope Gibson, by reason of this suit and the cost of the burial expenses, and other accounts for supplies and merchandise furnished her, he has paid out the sum of $1,167.65. That if this is charged against the amount which was on hand at the time of the death of the said Miss Penelope Gibson, there is left the sum of $316.68, and despondent is informed, and believes, that the major portion of the amount on hand with him is income which has arisen since the death of Miss Penelope Gibson, and to which it is contended she had no right, but under the will it goes to the owners of the soil from which it was accrued, and that the only part of the. rent paid for the year 1917, that would be applicable as income accrued during the life of Miss Penelope Gibson would be such proportionate part of the entire rent as the period of the year before March 8th bears to the whole year, and that the relators and the surviving • brother mentioned in the said procedings are not entitled to take over the fund on hand with him, to the exclusion of the other children of the testatrix, their heirs or assigns.”

The words which we have italicized show that the defendant does not dispute the fact that Penelope was entitled to a part of the income of 1917. Therefore, under the express provisions of the will, the children of the testatrix living at the time of Penelope’s death were entitled to the surplus income of that year. Furthermore, the $316.68 hereinbefore mentioned represented the surplus or excess of income during the previous years, and was not applicable to the debts of Penelope, but those of the children of the testatrix living at Penelope’s death were entitled to it.