#### MARTHA TILLMAN, *Executrix against*RICHARD H. TILLMAN AND OTHERS.

Where a testator in his will, gave a slave to one of his sons, and then provided that should he sell such slave, the proceeds should go-into a common fund, and afterwards, by a codicil made a contingent limitation of the same slave to a daughter in the event of the former legatees dying without leaving children, and further provided that if any of the slaves bequeathed to the daughter, should be sold by him, their value should be made good to her out of his estate, it was *held*that the said slave having been sold by the testator, the daughter had no claim for its proceeds out of the estate.

Cause removed from the Court of Equity of Anson.

The bill, in this cáse, was filed by the executrix of David Tillman, praying the instruction of the Court as to her duties in carrying into execution the will of the said David. Tiie *207chief difficulty is in relation to the disposition of the proceeds of a slave named Calvin, which was sold by the testator in his life-time. In the fifth clause of his will, he gives Calvin, amongst other slaves, to his son James A. Tillman. The testator added to his will a codicil, the second clause of which is as follows: “ The property which I have given J ames A. Tillman, in the fifth item of my will, in case he should die without leaving a child or children, I desire to be disposed of in the following manner, to wit, Calvin I give to Mary Ann. Smith and her children. Edmund to Frances Cooley and her children, and the balance of the negroes to my three youngest sons, "William, David and John. * * * Should I sell any of the negroes given in the fifth item of my will, the proceeds are to go into a common fund.

Third. In case I should sell and dispose of any of the ne-groes given to Frances A. Cooley, or Mary Ann Smith, either in my will or codicil, it is my wish and desire that the value of said negroes should be paid to them out of my estate.

The only disputed question in the case, is as to whether by the clauses recited, the proceeds of Calvin go to William C. Smith and his wife.

*K.*P. and P. *H.*Battle, for the plaintiff.

*Ashe,*for the defendants.

Battle, J.

Upon any admissible construction of the will of David Tillman, the proceeds of the slave Calvin must be exempt from the claim of the defendants, Smith and wife.— That slave was, by the *5th*clause of the will, given expressly to the testator’s son, James, and, by a direction equally express, the testator declared in the second clause of his codicil, that should he sell him, his proceeds should “ go into a common fund.” áo far there is no difficulty; but it appears that in the samé clause of the codicil, the testator limited Calvin to his daughter, Mrs. Smith and her children, in the event of his son James’ dying ydthout leaving issue,, and in the third clause of the codicil he directed that should he sell any of the *208negroes given to his daughters, Mrs. Cooley or Mrs. Smith, either in his will or his codicil, the value of such negroes, §o sold, should be repaid to them out of his estate. This direction could certainly have been carried into execution as to any of the slaves given in the will to Mrs. Smith, but it cannot apply to Calvin, because he cannot be said to have been given to her, either by the will or codicil. By the will, he was given to the testator’s son, James, and that gift was not taken away by the codicil, but only modified by having en-grafted upon it an executory limitation to Mrs. Smith and her children, contingent upon the event of the legatee, James’ dying without leaving issue.

But it is contended that by the sale of the slave in question, the legacy to James was adeemed, and it is thence inferred that Mrs. Smith and her children took a present interest in him or his proceeds. This argument will not answer, because if the sale of the slave was an ademption of the legacy, as to the legatee, James, it must be equally so as to the ulterior legatees, Mrs. Smith, and her children. The cases cited by the counsel; do not apply, because they were not cases of ademption, but only cases where the death of the legatee for life, in the life-time of the testator enabled the-ulterior lega-' tees to come into possession of the legacies immediately upon the death of the testator’. See *Richardson*v. Vanhook, 3 Ire. Eq. 581.

There must be a declaration that the defendant, Smith and wife, are not entitled to have the proceeds of the slave Calvin, sold by the testator in his life-time paid to them out of the estate, and as no other difficulty in the construction of the will is suggested, a decree may be drawn in accordance with the above declaration.

Pee CuRiAM, Decree accordingly.