#### HENRY P. EASTON *vs.*JULIA J. EASTON & AL.

A testator devised to liis son H. several tracts of land, and to his son John several tracts of land, including the home place after the death of his ■wife. He gave to each of his daughters, E. and M. a negro woman and four children. He gave to his wife absolutely six negroes, and lent to her during her widowhood four other negroes, and gave her ploughs, horses, cattle, Ac. and lent her the home plantation, with the privilege of fire wood and rail timber on any of his lands for the use of the plantation. He then directed as follows “I will that my negroes all to be hired out in common, except those given to my wife and also loaned to her, and the hire, and interest of my notes, to go for clothing and educating of my children, and the rest of my lands also.” At the time of the testator’s death, his son H. had just arrived at age. E. was 14, J, 10, and M. 8 years of age.

*Held,*1st. That the widow was entitled to the immediate possession of the negroes, and the stock, farming utensils, §-c., which were bequeathed to her; and also to the immediate possession and use of the home plantation.2ndly. That H., having arrived at age, was entitled to the immediate possession of all the land devised to him, and the one fifth part of the undis-posed of property, leaving the balance as a common fund for the support and education of the three other children, to be applied to that purpose at the discretion of the executor; 3rdly; Thatwhen M. arrives at age or marries, she will be entitled to draw, out of the common fund, the negroes given to her and one fifth of the property undisposed of; so, also, J., when he arrives at age, will be entitled to the land devised to him, subject to the life estate of his mother in the home place, and to one fifth of the un-disposed of property ; and 4thly, that when M. arrives at age ormarries, she will be entitled to the negroes given to her and one fifth of the property undisposed of; and the widow will then take the remaining fifth of the property undisposed of.

Cause removed from the Court of Equity of Pitt County, at the Fall Term 1850,

*99No counsel for the plaintiff.

*Biggs,*for the defendants;

Peaeson, J.

This was a bill filed by an executor, to obtain from the Court advice in the construction of the will of his testator, upon the following state of facts :

In January 1843, John S. Easton executed his will, by which he devised *to his*son, Henry, several tracts of land, and to his son, John, several tracts of land, including the home place after the death of his wife.— He bequeaths to his daughter, Eliza, a negro woman,' Judah, and her four children; and to his daughter, Martha, *a.*negro woman, Maria, and her four children. And he gives *to*his wife absolutely six negroes; and he lends to her, during her widowhood, four other negroes, and gives her two horses, a mule, barouche, and harness, cattle, ploughs, household furniture, &c.; and he lends to her the plantation, on which he then lived, with the privilege of fire wood and rail timber on any of his lands for the use of the plantation.

He then adds, * I will, that my negroes all to be hired out in common, except those given to my wife and also loaned to her, and the hire, and interest of my notes, to go for clothing and educating of my children, and the rest of my lands also.”

The testator died in 1846, leaving his wife and four children, Henry, who had just arrived at the age of twenty-one; Eliza, fourteen years of age; John, ten; and Martha, eight years. Besides the negroes named in the will, the testator owned five valuable negro men, one boy fifteen years old, and two young women ; and he owned notes, bearing interest, amounting to about $1000, after paying debts, &c.

The bill seeks to have a construction of the will. We think the widow is entitled tó the immediate possession t)f the negroes, and the stock, farming utensils. &c., which *100are bequeathed to her ; and also to the immediate *possession*and use of the home plantation. For, although the exception of the negroes in the above recited clause furnishes an inference, that no exception was intended to be made out of the general expression, *“and also the rest of the land,”*if it stood by itself, yet taking the will as a whole, we are satisfied, that it was intended to give the wife the immediate use of the home place, and to except it out of the “common” fund. Possibly he made the express exception of the negroes, because, in reference to them, he had used the word, *“all;”*which is not used in reference to his lands. But, however this may be, we infer he intended her to have the use of the home place ; because she is not to draw any part of the common fund for her support; and, it is clear from the gift of the negroes, stock, farming utensils, furniture, &c., that he expected her to use the plantation and make her support in that way.

As Henry, although under age at the date of the will, had arrived at age when his father died, it was no longer necessary for him to draw on the “common fund.” We think he is entitled to the immediate possession of all the land devised to him. and the one fifth part of the undis-posed of property. This will leave the balance as a “common fund” for the support and education of the three other children, to be applied for that purpose at the discretion of the executor. He will, of course, be influenced in a great degree by the annual income.

When Eliza arrives at age or marries, she will be entitled to draw, out of the *common*fund, the negroes, given to her, and one fifth of the property undisposed of. So, John, when he arrives at age, will be entitled to the land devised to him, subject to the life estate of his mother in the home place, and to one fifth of the property undisposed of. ■ This will reduce the fund to two fifths ; and when Martha arrives at age or marries, she will be entitled to *101the negroes, given to her, and one fifth of the property un-disposed of; and the widow will then, under the provisions of the act of 1835, take the remaining fifth, the purpose of making the common fund and creating this charge upon the property undisposed of having been fully ac* complished.

If it be asked, why the widow is not allowed to take her fifth part, until the youngest child arrives at age or marries, it. is answered, because the property, although not finally disposed of, is charged fora certain purpose, and she must take, subject to that charge, which is a partial disposition of it. And the reason that Henry is at liberty to^ake his part immediately is, because he was originally interested and intended to be benefitted by the common fund, which was not the case in respect to the widow; and so, when the purpose is answered as to him, he is entitled to withdraw his part, as the means of making a support.

The costs will be paid out of the fund.

Per Curiam. Declared and decreed accordingly.