#### SARAH FREEMAN AMD OTHERS vs. JESSE C. KNIGHT ADMINISTRATOR.

A testator bequeathed to A. as follows: “I give to A. *$2*700 and notes— *$2,676*of the money and notes embraced in this item have been paid to him — balance due §84 to be paid to the said A. at my death.” *Held*that A. was entitled to the $84, that being the sum finally and expli-cilly directed to be paid to him.

A testator bequeathed to B. his daughter, a girl named Franky — at the time of making the will Franky had an infant child. The child does not pass under this bequest, and no evidence can be received, extrinsic of the will, that Franky had been previously put in possession of the daughter, and that the child had been born after she had been so put in the daughter’s possession. If that fact had been stated in the will, the construction would have been different.

A testator directs that two negroes be sold, “and the proceeds equally divided betweenmy legal heirs.” *Held*thatinthis case, the word heirs’ means those entitled to distribution of the personal estate, and therefore includes the widow of the testator, and also the children of a daughter, who had died in the lifetime of the testator. If the bequest had been to the “heirs” simply, they would have taken in the proportion prescribed by the statute of distributions; but as the testator directs the property “to be equally divided” among them, the division must be *per capita,*the children of the deceased daughter, taking each an equal share with the children of the testator.

A testator bequeathed as follows: “It is my will and desire that all my perishable property be sold at my death, and the proceeds thereof I *lend*to Elizabeth S., M. B., E. K., J. F. and grandson A. W. to be equally divided amongst them, and at death I give the proceeds of my perishable property to the children of the said Elizabeth S., M. B., C. K., J. F. and A. W., to them, their heirs and assigns forever.” Elizabeth died in the life time of the testator, leaving children. *Held*that the testator meant a life estate to Elizabeth in one undivided share, and at her death, a limitation of that share to her children, and the life estate having been removed by her death, the limitation to her children took effect.

Where there is a pecuniary legacy to one for life, remainder to another, the executor can only pay to the legatee for life the interest on the sum bequeathed.

But where there are particular bequests of chattels for life, the legatee is entitled to the possession of the chattels themselves, upon giving an inventory for the benefit of those ultimately entitled. '

The case of *Croom*vs. *Herring,*4 Hawks 393, cited and approved.

This was a bill filed at Fall Term, 1840, of Edgecomb Court of Equity, by the widow, children and some of the *73grand .'children of Josiah Freeman deceased, all of whom were legatees in the will of the said Josiah, calling upon the defendant, who is the administrator with the will annexed, for an account of the estate, and for its distribution accord-t f r* t i ing to the directions of the testator. The administrator nled his answer, submitting an account of the estate, and professing his readines to pay it over to the plaintiffs, but stated that there were several difficult questions in the construction of some of the clauses of the will, as to the relative rights of the several plaintiffs, which he was unable himself to determine, and he prayed the advice and judgment of the Court on these questions, and their directions in taking an account and paying and delivering over the estate to the plaintiffs.

The cause was set for hearing at the Fall Term, 18415 and'transmitted by consent of parties to the Supreme Court. The opinion delivered in this Court discloses the matters of difficulty, on which the advice of the Court was prayed, and it is therefore deemed unnecessary to insert at length a copy of the will.

*Iredell*for the plaintiffs.

*B. F. Moore*for the defendant.

Gaston, J.

This bill was filed by the plaintiffs claiming to be entitled under the will of Josiah Freeman, deceased, to the testator’s personal estate, against the defendant, who is administrator with the will annexed, for an account. The defendant put in his answer, and the cause was set down to be heard on bill and answer, and then transferred to this Court for hearing. There is no objection made to the taking of an account, but the directions of the Court are prayed for in relation to sundry question's presented by the pleadings, and which should be settled before the account is taken.

The testator gives a pecuniary legacy to his son-in-law, Willie Summerlen, and his daughter Elizabeth, wife of the said Summerlen, in these words: “I give to my soh-in-law,W. S. and to my daughter Elizabeth his wife, twenty-seven.' hundred dollars and notes — twenty-six hundred and seventy* *74six dollars of the money and notes embraced in this item have been paid to him — balance due eighty-four dollars to be paid to the said W. S. at my death” The question arises w^iat ^13 surn t0 Pa^ unc^er bequest. Is it the $84 therein stated as the balance, or 24 which would appear to be the balance after deducting irom the gross amount of the legacy what had been advanced in payment thereof? We cannot say with any confidence where the mistake lies— whether in stating the sum already paid, or the sum directed to be paid. There is an error somewhere, which it is not in our power to correct, and we hold that *the sum,*which he finally and explicitly directs to be paid, must be regarded as the legacy thereby bequeathed.

The testator bequeathes sundry negroes to1 his son-in-law, James Bridges, and his daughter' Millicent, the wife of the said Bridges, for life, with limitations over to their children. Among these negroes is a girl Franky — j-who at the time of making the will* had an infant child. It is stated as a fact, that Franky had been put into the possession of Bridges by the testator some time before the birth of this child, and the question is raised, in whom is the property of this infant? It is very clear that the bequest does not *per se*carry the child, because the bequest operates from the death of the testator, and then Franky and her child were two distinct subjects of property, and a disposition of *one is*necessarily confined tff that one. We also hold that the bequest cannot be extended in its operation by any extrinsic matter not therein referred to, for the effect of such extension would be to make that pass by parol, which thelaw will not permit to pass otherwise than by writing. We have held that where a testator gives' by his will a negro, which he therein states to have been previously given by parol, or to have been put into possession of one of his children, the bequest operates as a confirmation of the antecedent imperfect dona-lion, and makes it valid *ab initio.*But this is a construction founded upon the language of the will. The extrinsic •facts are noticed by the Court so far, and so far only, as they are referred to in the will, as explanatory of the testator’s intention. It also seems to us that this child is not included *75in any other disposition made by the will. The 11th which is set up as a general residuary clause is not such. It directs a sale of all the testator’s *perishable*property and a disposition of its proceeds; and we are satisfied from the context of the will that this term, perishable, was used in the sense, in which it is generally employed in common parlance and frequently used in legislative acts to designate such goods as are likely *“to*perish, consume or be the worse for keeping.” See Rev. St. c. 46, s. 11, and c. 54, s. 13. The consequence must be, that in regard to this negro child there is a partial intestacy, and it is to be disposed of under our statute of distributions. If there had been no disposition in the will of the mother of the child, the question wpuld have arisen whether, under the act of ] 806, Bridges and his wife might not have claimed both mother and child as an advancement. The late Chief Justice of this Court has decidedly expressed an opinion, that the provision in the 3rd section of the act, that when a person has put a slave in the possession of his child and shall suffer it to remain in such passesion-until his death, “he dying intestate,” the slave shall be considered as an advancement to the child, applies not only in cases of intestacy, properly so called, but also where he dies intestate in regard to that slave. However this may be, on which we explicitly decline to express our opinion, we hold that there is no room in this case for claiming the infant slave as an advancement, because the will does make a disposition of the slave so put into the possession of his son-in-law. The testator has not died *intestate*in regard to that slave.

r The 9th clause of the will is in these words: “It is also my will that Big Sam and Isaac, should be sold and the proceeds equally divided between my legal heirs.” Who are the persons thus designated? Is the wife one? are the children of a deceased child included in the description? And if they be, do *they*take as designated persons *per capita,*or the share of the parent whom they represent? These en-. quiries would open a wide field for speculation, in which great ingenuity and learning have been exerted and expended, but that we feel ourselves bound to follow out the cpn-*76struction which in a very similar case was sanctioned by our predecessors in *Croom*v *Herring, et al.*4 Hawks, 393. It was there determined, that when a testator makes an immediate gift of personal property to “his heirs,” be means a gift tfj0se¡ whom the law has appointed to succeed to the personal estate of dead men, who have made no appointment themselves.” If so, it includes the widow — and it includes .the children of a deceased child. We consider it as a consequence resulting from the adoption of this rule of construction, that where personal property is given *simpliciter*to “heirs,” the statute of distributions is to be the guide, not only for ascertaining *who*succeed, and who are “the heirs,” but *how*they succeed, or in what proportions do they respectively take. But as the donees claim not under the statute, but under the will, if the will itself directs the manner and the proportions in which they are to take, the directions of the will must be observed, and the guidance of the statute is to be followed no further than where the will refers to it— that is to say, for the ascertainment of the persons, who answer to the description therein given. The testator has here directed the manner of distribution — -the proceeds are to be “equally divided.” The division directed by the will must be obeyed, and the children of the deceased child take equal shares with the widow and surviving children. It is needless to refer to authorities on this latter point. They are almost innumerable, and have overloaded the subject. The cases most nearly analagous to the present, are in respect to gifts to “relations.” Where it is made to them simpliciter, the persons to take, and the proportions are to be determined by the statute. The leading case for this doctrine, is *Roach*v *Hammond,*Prac. Chanc’y 401. But when the bequest is to relations “to be equally divided between them,” it was settled in *Thomas*v *Hale,*Forrester 241, the authority of which has been generally recognized ever since, that the distribution must be *per capita*among the persons included in the statute. Whatever might be thought of these distinctions, were the matter now a new one, to disregard them at this day would be *quieta movere.*

The 11th item of the will is very in artificially expressed, *77and we are called upon to declare its true construction. Its words are: “It is my will and desire that all my perishable property be sold at my death and the proceeds thereof, 1 *lend*to E-lizabelh Summerlen,MillicentBridgeSjEmmelinejKnight, Joseph John Freeman & grandson Augustus Whitehead, to be equally divided amongst them, and at death I give the said proceeds of my perishable property, named in this item to the children ofthesaid Elizabeth Summerlen, Millicent Bridges, Em-meline Knight, Joseph John Freeman and grandson Augustus Whitehead, to them, their heirs and assigns forever.” Elizabeth died in the life time of her father, the testator, and it is asked of us to declare whether her children are entitled under the ultimate limitation in this clause to the share bequeathed to their mother primarily, and, if not, what is to be done with it. — The first bequest is for life only. This is apparent not merely from the term “lend,” but because of the disposition over made *at death*generally, which literally means the death of all the objects oí that bequest. But these primary legatees take in distinct shares “equally to be divided between them,” and there is no disposition of the share of one at his or her death, (living the others) to any person else, unless it be found in the general limitation over. These considerations lead almost irresistibly to the conclusion, that both where the testator refers to the death of the primary objects of his bounty, and where he gives over, the residue alter death to the children of these same objects, he is speaking of them distributively, and is to be understood as though he had added in each instance the term “respectively” We have indeed no right to interpolate a word to make out a meaning for the testator, but we may understand one without its being used, when the whole scope of the'disposition shews that the purpose, which by that word would have been appropriately expressed, was entertained by the testator, but imperfectly communicated for want of skill. We hold therefore, that by the death of Elizabeth Summerlen, the bequest toller for life of an undivided share in these proceeds was put out of the way, and the limitation over of that share to her children took effect.

The defendant prays advice, whether, with respect to pe*78cuniary legacies which are bequeathed for life with remain-over, he is to pay them to the legatees for life, taking security for those ultimately entitled. This is not the proper course. In pecuniary bequests the legatee for life is entitled to the use only, that is to the interest of the money, and, if the executor pays over the principal money to such legatee, he is accountable therefor to the ulterior legatee. Where there are particular bequests of chattels for life, the legatee is entitled to the possession of the chattels themselves, upon, giving an inventory for the benefit of those ultimately entitled.

Augustus Whitehead and the widow are severally entitled to the crop planted andgrowing on the lands devised to them by the testator. *He*is also entitled to the turpentine made on the land devised to him since the testator’s death; but each is bound to make compensation to those, whose laborers were employed for him or her in tending the crop or making the turpentine. As to the turpentine made on *the*rented land, if the testator’s interest in the land is not bequeathed by the will, it falls into the residue of the testator’s perishable property, which is disposed of in the 11th clause.

These are all the declarations which are called for by the parties in their pleadings. The accounts must be taken, and the cause reserved for further directions upon the coming in of the report.

Per Cubiam, Declared and ordered accordingly.