#### ANDREW S. MASON AND ANOTHER *against*DEMPSEY B. SADLER, *Administrator.*

Where a testator bequeathed as follows: “ I lend to mj wife, during her life, all my negroes (throe in number) for the purpose of raising and educating my two sons,” which was but a reasonable share of her husband's estate, and gave in the same will, in appropriate terms, to his wife, as guardian to his two sons, the remainder of his estate, it was *held*that the former clause conferred upon her, for life, a beneficial interest in said property, with a recommendation in behalf of the two sons.

Cause removed from the Court of Equity of Hyde county.

Osborne Eoy Mason, by his will, dated 14th of January, 1841, bequeathed as follows: “ First, I lend to my wile, Polly, during her life, all my negroes, to wit: Charles, Clarisa, and Betsy Ann, and their increase, for the purpose of raising and educating my two sons, (Andrew) Shanldin and Ausbond, * * * and for her year’s provision, one hundred and twenty dollars.” “ I give and bequeath to my two sons, Shanklin and Ausbond, at the death of my wife, Polly, all my ne-groes, viz: .Charles, Clarissa, and Betsy Ann, and their increase,” with contingent limitations over.

“ All my perishable estate, except such that I have allotted to my widow, I wish to be sold on a credit of six months, and at the expiration of two years, after proving the will, I wish my executor to pay over to my widow, as guardian of my two sons, all the funds on hand for the purpose of raising and educating my sons, and for the purpose of her providing them a dwelling and land to live upon.”

By a codicil, he devises as follows: “The land I lately purchased of Joseph Swindell, I have lent to my wife her life'; time, and at her death, I give and bequeath the same to my two sons, Shanldin and Ausbond.” The bill asserts an equity in behalf of the two sons, Andrew Shanklin and Osborne. (called in the will Ausbond,) as arising to them from the first; clause of the above will and seeks to have the widow declared a trustee for their benefit, in respect to the slaves therein mentioned. Mrs. Mason, the mother, lived on the land, men*149tioned in the codieil, from 1841 to the year 1847, and in that year, was married to one Richard Sadler. Before this marriage, one of the slaves, mentioned in the will of Foy Mason, to wit, Clarisa, was sold by the administrator with the will annexed of her husband, for the payment of debts, and Mrs; Mason became the purchaser at four hundred dollars; of this sum, she paid out of the money arising to her from her husband’s will, for her year’s allowance, $120, and some further amount out of the money arising from the hire of Charles. The unpaid balance of this note was discharged by Sadler, the second husband. "While residing on the land, left her by her husband, the plaintiffs, who were small, lived with her, and did some light work, and afterwards, when she married, they went with her to the dwelling of her second husband and spent some year or two in that family, sometimes working in the crop. They afterwards lived at other places in the neighborhood and worked. Sadler, the second husband, took all the slaves into his possession, and kept them during the lifetime of his wife; after her dea'th, which occurred in 1850, he delivered Charles and Betsy Ann to the guardian of the plaintiffs, but as to the woman, Clarisa, and her children, he retained them, insisting that, by the purchase of his wife and the payments made by her and himself, the absolute property in these slaves vested in him. The plaintiffs were not sent to school at all, and it appeared were, at times, badly clad, but this seemed to arise more from the straightened circumstances of the mother, during her widowhood, than from neglect or indifference. It took all that could be made by the hire of Charles and Betsy Ann to support the family in the condition mentioned. As to Clarisa, she soon had a family of small children, and added to the expense of the family. On the death of Richard Sadler, this suit was brought against his administrator for the recovery of Clarisa and her children, alleging that she had been paid for out of the hires of the said three slaves, which they said belonged to them; alleging also, that they had never received the benefit of the said property, either in maintenance or education or in any other way, and *150praying an account of the hires of the slaves while in the possession of the said Richard Sadler, and of the woman, Cla-risa, and her increase, since his death.

The answer of the administrator of Richard Sadler, insists that the beneficial use of the slaves belonged, by a proper construction of the will, to Mrs. Mason, and as such, the right to the two slaves, Charles and Betsy Ann, for his wife’s life, vested in him, and as to Clarisa, she was his by his wife’s purchase.

The proofs taken in the cause, establish the facts of the case, as stated.

The cause was set down to be heard on bill, answer and proofs, and sent to this Court.

*Domiell*and *Carter,*for the plaintiffs.

No counsel appeared for the defendant in this Court.

MaNly, J.

The question presented by the pleadings is., whether the language used by the testator, Eoy Mason, in the first clause of his will, creates a trust, in his wife, of Charles, Clarisa and Betsy, for the sons, Andrew and Osborne.

It seems that Clarisa was sold by the administrator to pay debts — bought by the widow and paid for, partly, by funds arising from the hires of the other slaves, and the object of the bill is to follow the fund and to hold the property in which it was invested as security *pro tanto.*

Thus, the equity of the bill rests upon the principle, that the slaves loaned to the wife, for life, was a trust, solely for the benefit of the children during that term. Indeed, that is the leading allegation of the bill. This, we think, is a misconstruction of the will. Considering the clause, in connection with the other bequests of the will, we are of opinion the wife, under the bequest, took an absolute legal estate, and that the words, “for the purpose of raising and educating my two sons,” have not the effect to qualify that estate. Our interpretation is, that the words mean to give a reason for the *151gift, and in that way, to suggest and recommend a duty that was incumbent on her.

This construction is strengthened by reference to the terms of the provision, made in another part of the will, for the sons. It is there directed that certain property be sold, and after two years from the probate of the will, be paid over to Ms widow, *as guardian*to his sons, for the purpose of raising and educating them, &c. The language used, in these clauses, is so different, that we cannot suppose the testator meant the same thing. The inference is, that as the latter bequest was certainly intended for the benefit of the sons, the former was intended for that of the wife, with an admonition, as she had the means afforded her, to take care of the children.

It will be found, upon examination of the will, that if the widow takes no beneficial interest in the bequest of the slaves aforesaid, that a very inadequate provision is made for her. This is contrary to the general tenor of the instrument, and to the dispositions towards the wife manifested in it. It would be calculated to provoke a dissent, inevitably, and the consequent disturbance of his arrangements, which he could not have desired or contemplated. The facts of the case show, that with all the assistance given in the will, it was a hard struggle for her to keep the property together and maintain herself and family in the humblest manner. But a small portion —about $80 of the income, from slaves, was devoted to the purchase of Clarisa, the balance having been paid by the application of her year’s provision to that object, and by moneys furnished by her second husband, the defendant’s intestate.

The term, for which the property is given, it seems to us, is significant of the purpose of the testator. A loan, for life, is appropriate and usual in cases of gift for the donee’s own use, but it is of rare resort, where it is intended the donee shall hold for the benefit of others. It is not such language as would naturally be adopted for effecting a purpose of that kind.

There is no warrant, therefore, either in the language of the bequest, or the intention of the testator, as gathered from *152the entire instrument, for severing the beneficial interest from-the legal estate. The language, in which the bequest is clothed, is simply demonstrative, and amounts, at most, only to an injunction, on the legatee, to enjoy the property given, in a particular manner.

This ease is distingushed from that of *Little*v. *Bennett,*5 Jones’ Eq. 156. There, the *embi/re estate*of the testator was given to the wife to'raise and educate the children, and to dispose of among them as she might think proper. This was held to confer a beneficial interest on both, which might be enforced in a court of equity. But it was placed expressly upon the ground, that it could not be intended for herself alone, because there would then be nothing for the children ; nor could it be intended for the children alone, because, in that case, the mother would be left destitute, and, therefore, it was intended to be given to both. In the case before us, distinct provision is made for each, and we are of opinion the words annexed to the bequest for the wife, do not confer upon the children rights that will be enforced by the Court.

Per Curiam, Bill dismissed.