#### HENRY HARRELL, *Executor against*POLLY DAVENPORT AND OTHERS.

A widow, who dissents from her husband’s will, has no right to insist that that certain slaves, who had committed a felony, and were afterwards hanged, should be valued as though they were free from such criminal charge, it being *Held*by the Court, that slaves so circumstanced, were of no value. It is the duty of tho executor talcing charge of slaves accused of a felony, to have them defended, and the expense of defending such as were convicted and executed, was *Held*to be a charge upon the estate, and not upon the legatees for whom they were intended; but as to one who was acquitted and received by a legatee, it was *Held*that the charge for his defense, should fall upon the legatee.

A bequest of a residuary fund to A and B, who are “to share equally with the children of C,” was *Held*to give to each of the children of C a share equal to the respective shares of A and B.

The general rule as to interest upon general legacies, is that none can be calculated before the time appointed for their payment.

The legatees of slaves specifically bequeathed, are entitled to their hires, from the death of the testator.

Cause removed from the Court of Equity of Washington County.

William D. Davenport was shot and killed by two of his slaves, Danza and Aaron, in the month of -February, 1858.— The two slaves aforesaid, were tried and convicted of the offense, and afterwards executed. Another slave, George, was also put upon his trial for the same offense, but -was acquitted. In the will of the said William D. Davenport, George is giv*5<en to the children of William EL Davenport, Ganza to Henry Harrell, who is the exeentor and plaintiff in this suit, and to his wife, Catharine, and Aaron to the children of Samuel W. Davenport. On the arraignment of these slaves, the family of the testator, and the publie, were greatly incensed against them, and no counsel having been secured for them, his Hon- or, who tried the ease, ordered the plaintiff, Harrell, to have them defended in the best manner, and to pay the amount necessary to that end, out of the estate of the testator; in consequence of which, considerable sums were paid out by the executor, in counsel fees, and other expenses. After the acquittal of George, he was delivered by the executor to the children of W. H. Davenport, and sold by them, and the money divided among them.

The widow of the said W. D. Davenport dissented from his will, and claimed her dower and distributive share.

This bill is filed by Harrell, as executor, praying the advice of this Court on several questions growing out of the will of the said Davenport, and the circumstances subsequently occurring. He states, among other difficulties presenting themselves

1st. That Polly Davenport, the widow, insists that in having her share assigned, she is entitled to have the value of Ganza and Aaron brought in, as if they had not been convicted and hung. It is agreed that the apparent value of each of these slaves was $1,200, at the testator’s death. She also insists that she is to have her share from the estate without any diminution for the expenses. These demands are opposed by the other legatees.

2. The legatees to whom Ganza and Aaron were bequeathed, insist that their value shall be made good to them out of the' estate.

3. The legatees of the slaves, George, Ganza and Aaron, insist that the expenses of defending them shall be paid out of the estate, while it is insisted on the other side, that each of the persons to whom these slaves were bequeathed, shall bear the burthens incident to their protection.

*64. By the 13th clause of his will, the testator gives the residue of his estate, after many legacies, as follows: “My wife, Polly Davenport, and my children, Chloe Davenport, Catharine Harrell, and Alfred Davenport, each to take one share; to the children of Samuel W. Davenport, one share between them; to Mary Amanda Spruill and Mary Ann Ward to share equally with each of the children of W. PL Davenport.” It was insisted by the first named of these legatees, Mary Amanda Spruill and Mary Ann Ward, that by the words and meaning of this bequest, they are to take a third each of the share herein given, and that the children of W. H. Davenport, of whom there are five, take a third among them.

5. The fifth enquiry is stated in the preceding.

6. By the said will, the sum of $800 is given to Mary Ann Ward, when she arrives at the age of twenty-one. She is now about sixteen years old, and contends for interest on the sum bequeathed, from the testator’s death; which claim is resisted by the others.

I. As soon as the said Harrell qualified as executor, he hired out for the remainder of the year, all the negroes of the estate, except the three in jail; and, at the end of the year, he delivered them to the legatees, to whom they were specifically bequeathed. The executor inquires how, in arriving at the amount of the distributive share of-the widow, these slaves are to be valued, and as of what time.

8. The owners of the last mentioned slaves, claim their accruing hires, as incident to the property itself, which is resisted by the claimants of the residue.

On the foregoing points, the executor says that he is threatened with litigation, and calls upon the several parties to litigate these matters in the Court of Equity, and he prays that he may be protected from these adversary claimants, by a decree. He submits to all proper accounts, &c.

The legatees, who are brought in as defendants, by this bill, answer and insist upon the several views attributed to them in the plaintiff’s bill.

*7The cause was set for hearing upon the bill, answers, and exhibits, and transmitted to this Court.

Winston, *Jr.,*for the plaintiff.

*JEL. A.*Gilliam, for the defendant.

Battle, J.

The executors of William D. Davenport, having met with difficulties in the settlement of the estate of their testator, arising from the conflicting claims of the legatees named in his will, among themselves, and also between them and the widow, who dissented from it, have filed this bill for the purpose of obtaining the advice of the Court upon certain questions which are therein stated.. In the argument here, the counsel have conceded that only two or three of these en-quiries admit of much doubt, and our attention, therefore, will be directed mainly to them.

1. The widow having dissented from the will, claims that, in ascertaining the share of the personal estate to which she is entitled, she has the right to have the slaves, Ganza and Aaron, who were prosecuted, convicted and hung for murdering her husband, valued as if they had not committed any felony, by which their lives were forfeited. This claim is ungracious and unfounded. Those slaves were, in fact, of no value; just as if they had had the small-pox or any other mortal disease, at the death of the testator, and had died thereof, soon after. This proposition is so plain, that it does not admit of further elucidation by argument.

She also claims to have her share exempt from any costs attending the prosecution and defense of those slaves, and also of the slave, George, who was acquitted. We will dispose of this question in connection with the third, in which the legatees of these slaves, respectively, claim to have the costs above stated, paid out of the general assets of the estate, while the widow, and the other legatees, contend that the costs of the prosecution and defense of each of these slaves, ought to fall on the legatee to whom he is given by the will. As to the slaves, Ganza and Aaron, they were never accepted by the *8persons to whom they were respectively bequeathed, they formed a part of the estate of the testator, and it was the duty of the executor to take care of them, and have them properly defended, and, we think, the necessary costs and expenses of such defense, must be borne by the general assets of the estate. The case of George was different; he was received by the legatees to whom he rvas bequeathed, and sold by them. They took him *own onere,*and, of course, must pay the costs of his defense.

The bequests of the slaves, Ganza and Aaron, were specific, and of course, the loss of them, by hanging, must fall on the persons to whom they were respectively given, just as if the slaves had died a natural peath.

3. The third question has been already answered, in our opinion upon the latter part of the first.

4 and 5. The fourth and fifth questions may be considered together. The language of the 13th clause is too explicit to admit of any doubt, that the division between the legatees, Mary Amanda Spruill, Mary Ann Ward, and the children of Wm. IT. Davenport, is to be *per capita;*the will says, expressly, that Mary Amanda Spruill and Mary Ann Ward, are “to share equally with each of the children of William H. Davenport.” How sharing equally with *each,*can be construed to mean equally with *all,*we cannot conceive. The consequence is, that Mary A. Spruill, and Mary A. Ward, and W. IT. Davenport’s children divide one share equally between them.

6. The legatee, Mary Ann Ward, claims interest on he.r legacy of $800, from the death of the testator; and her counsel argues strenuously that she is entitled to it. We think otherwise- The general 'rule is, that when the time for the payment of a general legacy is fixed by the testator, it will not carry interest before that time; 2 Roper on Leg. p. 190, ch. 20, sec. 3. There is an admitted exception in the case of such a legacy to a child, or to one to whom the testator stands *in loco parentis,*who is otherwise unprovided for; 2 Rop. on Leg. p. 192, ch. 20, sec. 4. This exception is not made in fa*9vor of a grandchild of the testator, unless he stands *in loco parentis*to the legatee. See 2 Rop. on Leg. p. 202, ch. 20, sec. 5, and the cases there cited. There is nothing in the present will, or in the facts stated in the pleadings, to show that the testator undertook to provide for the legatee as if she were his own child. It is mentioned as a fact, that her mother was dead, but nothing is said of her father, or whether he had made any provision for her. The testator does not call the legacy *apm'tion,*as was done in the case of *Acherly*v. Vernon, 1 Peere Williams, 783, nor use any other expression *to*show that he had placed himself in the stead of the father of the legatee. The general rule, therefore, must prevail, and no interest can accrue on the legacy until it shall become due.

7. and 8. The legatees of the slaves, respectively, are entitled to their hires from the death of the testator. These legacies being specific, the legatees take them, upon the assent of the executor, with the profits which they have produced, just as they would be entitled to the interest on bonds given specifically. See *Beasley*v. Knox, decided at this term, (ante 1.) Ift ascertaining the shares, to which the widow is entitled, these slaves must be valued, as of the time of the settlement of the estate; *Hunter*v. *Husted,*Bnsb. Eq. Rep. 97.

The parties may have a decree upon the principles herein stated. The costs must be paid out of the general assets of the estate.

Pee Cuexam, Decree accordingly.