#### Binford’s Adm’r v. Robin & als.

January, 1845,

Richmond.

Wills—Construction of—Emancipation of Slaves.*—Testatrix, in one clause of tier will, says—“I will that all my negroes be hired out, until all my just debts are paid, as well as legacies hereinafter deyised shall be satisfied.” In a subsequent clause, she says—“I will and devise that all my negroes be liberated, after the above items in this will be satisfied.” At the time of making the will, and at her death, the testatrix owned slaves in possession, and she owned an undivided interest *132in. other slaves held hy a third person for life- On the death of the life tenant *these last slaves were divided, and two of them were allotted to the estate of the testatrix. On a hill filed hy these two slaves to recover their free- . dom. Held, that they are entitled to their freedom under the will of testatrix.

John Price died many years since, leaving a widow and several children. At the time of his death, he owned a number of slaves, of whom the widow’s share was allotted to her. One of the children of John Price married Thomas Binford, and died, leaving her husband and one child Prances T. A. Binford surviving. Thomas Binford 'died, leaving his daughter Prances surviving, and Prances died unmarried in the lifetime of the widow of John Price.

Prances T. A. Binford left a will,,, which was duly admitted to record in -the county-court of Henrico, in the second clause of which she says ‘I will that all my negroes be hired out, until all my just debts are paid, as well as legacies hereinafter devised shall be satisfied.” And in the seventh clause, she says “I will and devise that all my negroes be liberated, after the above items in this will be satisfied, and that they have their choice to go to Liberia, or to some free state in this Union.”

At her death, the testatrix owned several slaves then in her possession ; and after her death and the death of Mrs. John Price, two of the slaves, who had been in the possession of Mrs. Price as her dower slaves, were, by the decree of the county court of Henrico, allotted to her representative as her portion thereof in right of her mother. These two slaves then brought this suit in the superior court of chancery for the Richmond circuit, against the administrator de bonis non with the will annexed of Prances T. A. Binford, claiming their freedom under her will; and the cause coming on to be heard at the January term 1844, the court made a decree declaring them to be free. Prom this decree the administrator obtained an appeal to this court.

*Lyons, for the appellant.

The appellees claim their freedom under the seventh clause of the will of Prances T. A. Binford; and the question is, are. they embraced in it. The cardinal rule in the construction of wills, is the intention of the testator. In this case the testatrix, when she made her will and at her death, owned slaves then .in her possession, and she owned an undivided interest in slaves, held by another person for life. It was uncertain when this interest would come into possession, or which of the slaves, or whether any of them, would ever belong to her. By the second clause of her will, she directs all her negroes to be hired out until her debts and legacies are paid, and by the seventh clause she directs that all .her negroes be liberated, after the debts and legacies are paid. She uses the same language in bo*h clauses, and in the last, .she liberates her slaves after the object provided for in the second clause, is accomplished. Thus the description of the persons intended in each clause, is the same, and the reference in the seventh to the objects of the second, shews that the same persons are intended in both. But the second clause cannot refer to her portion of the dower slaves, because it was entirely uncertain when they would come into possession, or whether it might not be necessary to sell them in order to a division among the parties interested in them. Although, therefore, the terms of the seventh clause of the will are general enough to embrace the interest in the dower slaves, these general words will be restricted to effect the intention of the testator. Shelton v. Shelton, 1 Wash. 53; Philips v. Melson, 3 Munf. 76.

The will fixes the time for the emancipation of the slaves at the period, when the debts and legacies are paid; but these dower slaves might not then be in possession, as in fact they were not, for years afterwards. How then can she be supposed to refer to them?

*These slaves must claim as legatees under the will, and they must, therefore, be in a condition to take as such at the death of the testatrix. But, at that time, the testatrix had no title to these particular slaves, but only a joint undivided interest with others, in the whole of the dower slaves, and it was not, and could not be known then, which of them would be allotted to her. At that time, then, these persons were not in a condition to take any benefit under the will, and their subsequent allotment to'the representative of the testatrix, cannot relate back so as to give them a capacity which they did not then possess.

Minor, for the appellees.

It is obvious, from the will of Prances T. A. Binford, that she intended to dispose of her whole estate; and she shews her intention that her relations shall not enjoy it. And the question is, has she accomplished that intention, or has she died intestate as to her interest in the dower slaves then in the possession of Mrs. Price.

The interest of the testatrix in these dower slaves, was a vested interest. The slaves were in being, and her interest in them certain, and that interest has since come into possession, and the slaves are her slaves and now in the possession of her -representative. If they pass by the will, then, it is clear they are emancipated, as she has liberated all her negroes.

It is said that the general words of the seventh clause, is to be restricted by the second. In the second clause of the will, the object of the testatrix is to provide for the payment of her debts and legacies from the hires of her slaves, and of necessity that provision must be limited to the negroes in possession, but not to the negroes in possession at the death of the testatrix; but if the life estate of Mrs. Price had terminated before the debts and legacies were paid, then the slaves derived from that *133source would have been embraced in the provision *for paying the debts and legacies. But in the seventh clause of the will, the object of the testatrix is the liberation of her negroes, and she uses terms broad enough to include all, whether in possession or reversion. Though, therefore, the same terms are used in both clauses of the will, the fact that the general words are restricted in the second clause from the necessity of the case, where the testatrix had one object in view, it does not follow, that they must be so restricted in the seventh clause, where such necessity does not exist, and where the object is wholly different.

As to the objection that it might have been necessary to sell the dower slaves in order to a division, it is enough to say that the court would not have permitted them to be sold if they could be divided, and in fact they have not been sold, but have come to the possession of the representative of the testatrix.

But it is said that these appellees were not in a condition to take at the death of the testatrix, and, therefore, they are not now entitled to the benefit of the provisions of this will. It is true that a will of personalty speaks as at the death of the testator, and in this respect, it has a larger scope than wills relating to real estate. But these slaves are not after-acquired property; but at the death of the testatrix she had a vested interest in them; and although they afterwards came into posses-'* 1 sion, they came by virtue of a title existing before her death. In Powell on Devises, 22 Law Libr. 58, it is said that a reversion in fee will pass bjr general words in a will, though there be other real estate in possession which would answer the general words: and it will pass though it is not probable that the estate will ever come into possession. Chester v. Chester, 3 P. Wms. 56, cited by Powell; Ridout v. Pain, 3 Atk. 492; Church v. Mundy, 15 Ves. 396. This court has held that slaves may be emancipated after a life estate, and that under the will, children born after the testator’s death, and ^during the life estate, were entitled to freedom under the words “all his slaves.” Erskine v. Henry, 9 Leigh 188. See also Anderson’s ex’or v. Anderson, 11 Leigh 616.

*

WlIls—Emancipation—Construction.—In *Binford v. Robin, 1 Gratt. 327,*the terms used by the testatrix, “that all my negroes be liberated,” were held to include not only slaves in possession, but also a reversionary interest in slaves depending upon a life estate; and this, although the life estate did dot expire until after the death of the testatrix, and the portion falling to her estate was then for the first time set apart upon partition with other parties interested. See also, *foot-note*to Osborne v. Taylor, 12 Gratt. 127.

Same—Same—Same.—It seems to be well settled, moreover, that the increase of slaves bequeathed for life, born during the existence of the particular estate, if not otherwise disposed of, are the slaves of the testator’s estate, and any words showing an intention to emancipate all his slaves, will embrace the after born issue. Pleasants v. Pleasants, 2 Call 319 (“respecting my poor slaves all of them, as I shall die possessed with shall be free”); Elder v. Elder, 4 Leigh 252 (“the remaining part of my negroes”); Erskine v. Henry, 9 Leigh 188 (“ all his negroes to be free and at full liberty”); *Binford v. Robin, 3 Gratt. 327*(“that all my negroes be liberated") ; Lucy v. Cheminant, 2 Gratt. 36 ("all the rest of my slaves”); Anderson v. Anderson, 11 Leigh 616 (described as “all” his negroes); Osborne v. Taylor, 12 Gratt. 117; Maria v. Surbaugh. 2 Rand. 228; Isaac v. West. 6 Rand. 652; Hunter v. Humphreys, 14 Gratt. 287.

The principal caséis cited in Osborne v. Taylor, 12 Gratt. 129; and in Hunter v. Humphreys, 14 Gratt. 297.

Bjr the court.

Affirm the decree.