#### John Speight *v.*Reddick Gatling *et al.*

testator is presumed not to die intestate as to any part of his estate; and hence, where there is a residuary clause, all his property, not specifically bequeathed, passes underit.

This cause was removed from Gates. The plaintiff alleged, that *Joseph Speight,*died in the year 1792, leaving a will, whereby he devised as follows : “ I lend *“*to my beloved wife, *Jlnnc Speight,*during her natural 4< life, one half of the land and plantation whereon I now *-s*live, also five negroes, viz. &c. also three horses, &c.” That after giving the bulk of his estate to his sons *Francis*and *Henry, “*and their heirs and assigns forever,” he bequeathed twelve shillings to his grand-children *Joseph Freeman, John Freeman*and *David Freeman,*to *“*them and their heirs forever, in full of their part of my estate.” He also gave a negro to his grand-daughter Jane *Freeman, “*to her, her heirs and assigns forever,” with a similar declaration, that it should be in full of her share of his estate, and after bequeathing a riding-chair and harness to his wife, “ to her and her heirs forever,” *6he proceeded as follows : *“*It is my will and desire, that “ all the remainder of my estate, of every nature and kind “ whatsoever, shall be sold, and nine months credit given *“*to the purchasers ; the money arising therefrom to go to *“*pay my just debts and funeral charges,and ifthcreshould *“*be any remainder, for it to be equally divided be- *“*tween my two sons, *Francis Speight*and *Henry Speight, “*to them and their lieirs forever and appointed his sons, *Francis*and *Henry,*executors, who proved the will, paid all the debts of the testator, and both died intestate, ■before *Anne Speight,*the wife of the testator: that James *■Gatling*took out letters of administration upon the estate of *Henry Speight*— and upon the death of Anne, the widow, received the property given her for life by the ■will of her husband, consisting of the original stock of negroes, together with a large increase: that *William ■ Goodman*administered upon the estate of *Francis Speight,*and died before *Anne Speight*— and that administration *de bonis non*upon the estate of *Francis,*issued to *Henry Speight,*the,younger: that *.James Gatling*died in 1823, and that the defendants liad administered on his estate. The bill then set forth the title of the plaintiff, as administrator *de bonis non*of *Henry Speight,*the elder, aud concluded with a prayer for an account of the profits oí' the Slaves, which the defendant’s intestate received after the death of *Anne Speight,*and that the plaintiff’s share of them might bo delivered to him. *Henry Speight,*administrator *de bonis non*of *Francis Speight,*was made defendant, and upon his el eath, the cause was revived against *Thomas Sanders,*who was also appointed administrator *de bonis non*of *Francis Speight.*

The defendants, in their answer, admitted the principal allegations of the plaintiff. They stated, that their intestate not only administered upon the estate of *Henry Speight,*the elder, but that he also took out letters of administration *de bonis non, et cum testamento*an-*nexo*of the testator, *Joseph Speight,*under which he had, by the advice of counsel, and with the consent and approbation of the plaintiff, distributed the property given to *Anne,*the widow, for life, “ among the distributees of *Joseph,*the testator.’-’

*7This division was made in 1819, under an order of the-County. Court, and the report of the commissioners was ■ hied with the answer, from which it appeared that they had divided the negroes left by *Joseph Speight,*to his wife for life, equally between all his grandchildren. *per stirpes,*excluding the Freemans„ who he had declared should receive no further part of his estate, The, several- acknowledgments of the receipt of their shares, signed, by the persons, among, whom this property was divided, were also filed with the answeiv. By consent, the clerk, was directed to take an- account of, the value of the ne-groes, and of tlicir annual profits.

In his report, the clerk stated, that no evidence had' been filed with him as to the value of the slaves, or the amount of profits received from their labour. He there-. fore had been governed by. the valuation made by- the commissioners, who divided them in 1819, and had allowed nothing for the profits of their labour, but charged the-defendants witli interest upon that valuation, and. that he had rejected a claim.-madc by the defendants for-an allowance, on account of one of the. negroes, who died in 1820.

*Hogg,*for the plaintiff,

contended, 1st, that by the* residuary clause, the property in dispute was given to *Henry*and *Francis. (Roper on Legacies*488 *Cambridge-*v. *Rous*8- *Vesey*14 *Blacldedge*v. *Singleton*3 *Murp. 597).*

2d. That even if the plaintiff agreed to the division as made, it should be corrected, on account of- his igno,-. ranee of his rights.

*Gaston, contra,*

urged, that the property did not pass under the residuary clause ; and if it did, that the mistake committed in the division was a mutual mistake of law, and could not be rectified. *(James*v. *Avis*4 *T. R.*605. 4 *Rae. Ah.*351 *Havers*v. *Dewes*3 P. *Wms.-*40 *ML Gen.*v. *Johnson*2 *Rop. on Leg. 457. -Anib. 577).*

Hah., Judge.

On the argument of this case, an objection was made, because *Francis Speight’s*representative- was not a party. But upon an inspection of the *8record it appears, that after the death of *Henry*Speight, administrator of *Frauds Speight,*letters of administration *de bonis non*were granted to *Thomas*Sanders, and the suit has been revived against him.

The first question upon the merits of the case is, whether the property in dispute passed hy the residuary clause of *Joseph Speight’s*will, to *Frauds*and *Henry Speight.*In the first clause the testator “lends unto my beloved wife *Ann Speight, during her natural life,*one half of the land and plantation whereon I now live, with one half of the improvements thereon; also five negroes, Jenny. *Henry, Stephen,Rose,*and *Pris,”*with various other articles. In a subsequent clause ho says, *“*I give and bequeath unto my beloved wife *Ann Speight*my riding chair and harness, *to her 'and her heirs forever.”*It is observable, that in all the other clauses where the test..tor gives property, he uses the same words of limi tation, “ *to them*and their heirs forever.” This is pretty satisfactory proof, that the negroes given to *Ann*were, like the land, given to her for life, and so far the remainder in them is undisposed of. The testator in a subsequent clause gives to his grandson *Joseph Freeman*twelve shillings, in full of his part of the estate, to him and his heirs forever. He does the same to *John Freeman*and *David Freeman.*He also gives to his granddaughter *Ann Freeman*one negro named *Luke,*to her and her heirs forever, in full of her part of his estate. It is pretty clear, that the testator did not intend that these last legatees should have any interest in the remainder of the negroes, given to his wife *Ann*for life. Nor can it be supposed, that he intended, as to that property, to die intestate. But I am of opinion, that it passed to *Henry*and *Frauds Speight*under the following residuary clause: “It is my will and desire, that all the remainder of oy estate, of every nature and kind whatsoever, shall fee :• old, and nine months credit given to the purchasers; the money arising therefrom to go to pay all my just debts aiiisi funeral *charges;*and if there should be any remainder, for it to be equally divided between rny two sons, *Francis Spdght*and *Henry Speight,*to them and *9their heirs forever.” This clause is sufficiently comprehensive to embrace it.

daves,'honestly made by an exe-wKmgprmcSplet may be set aside upon the bill or a legatee, who ^ ignorance of his ri£hts-

It is argued, that it is incredible that he intended the remainder in those slaves should be sold to pay his debts. I answer, that whether he intended it or not, he certainly subjected that interest to the payment of his debts ; and his executors (who were *Francis*and *Henry Speight)*might sell it if they pleased. And if they paid the debts, they need not sell any of it. It was given to them, subject to the payment of the debts, and until it was exhausted, no other legacy could be touched for that purpose. I therefore conclude, that the property in question devolved upon, and became vested in *Francis*and *Henry Speight,*by the residuary clause in the will of their father, *Joseph Speight.*But it is stated, and relied upon, that the division was made amongst the four children of the testator by consent. This allegation. I think, has not been established. No doubt *James Gatling*acted honestly in making the division, and that he made it under legal advice. And this might have ° . Leen tlic means, in some measure, of silencing tlic claimants, who were probably ignorant of their rights. The testimony of *John Gatling*and *William Gatling*would seem to show, that the division was made by con*sent",*but the testimony of *Lewis Eure*and *Hillory Wil-ley,*who were the commissioners that made the division, clearly prove that some of the plaintiffs were dissatisfied with *it;*and if others were silent, it might be and probably was, that they were ignorant of their rights. I therefore cannot consider the division to be a bar to the plaintiff’s rights under the will.

A report has been made in this case by the clerk, in which he values the negroes claimed by the plaintiff, as they were valued in the year 1819, when the division took place. He states, that no evidence was offered, either as to their present value, or as to their hire or annual value. As the plaintiff was entitled at the time tlic division took place, and as the negroes were thereby withdrawn from him, I see no objection to taking their *then*value.

*10Another objection is, that part of the valuation Avas made upon a slave, that died shortly after the division. It is to be observed, that the slaves are not produced by the defendants in discharge of themselves. IftheyAvere, it would probably appear that their increase would balance that loss. Or if there Avas no increase, the hire or annual value of the negroes might exceed the interest; so far as to cover it. I therefore think, that the valuation of the slaves and property claimed by the plaintiff,. which was made at the division, should be the basis of a decree against the defendants.

Per Curiam — Decree accordingly.