#### The Executors of Charles James *v*. William B. Masters.

From Craven.

Testator bequeaths negro slaves to his wife during her life, and directs that after her death they shall be set free ; and enjoins it as a duty upon his executors to use their best endeavors to procure from Court a license to emancipate them. He then gives several small legacies to his nieces, and concludes his will with a declaration “ that no per- *“*son or persons whatever, being in any degree related to Mm or his *'■*wife, or any other person or persons whatever, other than was “ therein before mentioned, should ever under any pretence come in « for a share, or receive any part of Ms estate.” He appoints Ms wife and four other persons his executors: Ms wife holds the negroes during her life, and bequeaths them by her will to her niece, whose husband takes them into possession, claiming the absolute property in them. The surviving executors of the testator bring detinue for the negroes, and recover, because,

1. Although by the policy of our law, the ulterior limitation after the wife’s life estate is void, the entire interest in the negroes did not vest in her; she could not claim *under*the will and in *express opposition*to the will; and here there were express words of exclusion as to any other interest than one for life. And her interest as one of those among whom the residue of the estate undisposed of by the will was to be divided, was not such an interest before the assent of the executors, as vested a legal title in her legatee. As to the assent of the executors, it was in tins, as in all other cases, co-extensive with the legacy. Where there is no remainder, the assent enures to the benefit of the particular tenant only; and the executors are entitled to the possession of the chattel again, to perform the other trusts of their office.

-2. The clause of the will excluding all persons from a beneficial interest in tile negroes after the life estate of the wife, does not affect the interest of the Plaintiffs as executors or trustees, nor the interest arising from their office of executors, which is necessary to perform the trusts of the will or the trusts raised by law.

A legacy cannot be claimed *under*a will in express opposition to the plain intention of the testator. But the next of kin can take in express opposition to the words of the will; for they take under the law, and not under the will.

Charles James being’ possessed of sundry negro slaves, made and published his last will, and therein bequeathed *111to bis wife Comfort James, all his estate during* her natural *life;*and after her death he directed all his negro slaves to be emancipated, declaring that he wished to give to them their freedom as a reward for their faithful and meritorious *services;*and he requested his executors to use their utmost endeavors with the County Court of Craven to obtain a license to emancipate them. He gave several small articles of his estate to his nieces, and declared, at the conclusion of his will, *“*that no person or “ persons whatever, being in any degree related to him or Ms wife, or any other person or persons whatever, other *“*than was therein before mentioned, should ever, under *i(*any pretence, come in for a share or receive any part of <{ his estate.” He then appointed his wife and the Plaintiffs in this suit his executors. Comfort James, the widow, with the assent of her co-executors, took the negro slaves into her possession as legatee, and kept them during her life. She died on the 6th day of January, 1816, having, by her last will, given and bequeathed all her property to Polly, the wife of the Defendant, whom she appointed her executrix. The Defendant took the negroes into his possession, and thereupon the Plaintiffs, who are the surviving executors of Charles James, brought an action of detinue to recover them ,* and it was referred to this Court to decide whether they be entitled to recover.

Gaston, for the Defendant.

On the death of Charles James, the slaves became at law the property of the executors : They, however, took as mere trustees, and the en-quiry is, for whom did they take, and upon what trusts ? The will is explicit that the wife shall have them for her life, and after her death that they shall be free. The executors are not to be their owners *;*but their guardians, agents, and solicitors of their freedom. No other persons shall be their owners ; they are to be free under the tutil-lage and protection of the executors. Tliis is forbidden by *112the policy of our laws, and the whole of this disposition a^cr ^,e w^e’s death, is illegal and void.*

On what trusts then does the law say the executors ^aj.e †]16 jCg.a] estate ? Equity follows the law and puts the same construction on trusts as on legal estates. Anciently, a bequest for life of a chattel interest amounted to so absolute a disposition as to invalidate any further limitation thereof after the legatee’s (icath.† In a devise of the profits of a term to one for life, and after his decease to another, he in remainder assigned during the life of the first devisee, and the assignment was adjudged void, for that he had but a possibility. Cited in Fulwood’s case.‡ A distinction was afterwards taken in favor of such an ulterior limitation, where the bequest for life had been of the *use*only, of the chattel.§ It was afterwards held that where the chattel itself was given for life with a limitation over, in order to support the limitation the will should be construed as though the use only had been given in the first instance.ǁ It would seem also that where a limitation has been made for life, of a chattel real, and no disposition thereof thereafter, it was held that a possibility of reverter was left in the executors of the testator :¶ for the law there, is, that all not given away by the wrill shall vest in the executor beneficially, unless an intent appear to exclude him. Wherever an intent to exclude him appeal’s, he shall be barred from taking beneficially and be converted into a mere trustee. If an executor have a legacy and there bo no next of kin, he shall be a trustee for the crown.**

But a bequest of a chattel for life, or for a day, or an hour, is still held to be a disposition of the whole interest *113therein, when the ulterior limitations are void, and it is the testators intention to dispose from his executors.* In the present case, the ulterior limitation being void, tne whole beneficial interest in the slaves passed to the legatee for life, under whom the Defendant claims. Upon the assent of the executors the whole beneficial interest given by the testator, is converted into a legal ownership.†

*

**Haywood v. Craven’s ex’r.

†

 Roll. Ab. 610. Bro. Ab. 235 PI. 17.1 Dyer *7.*

‡

 4 Co. 66.

§

 Ld. Hastings *v.*Douglas, Cro. Car. 346.

ǁ

 Mathew Manning’s case, 8 Co. Rep. 187. Lampet’s case. 10 Id. 47.

¶

 1 Salk. 231.

**

**Toller 270.1 Bro. Ch. 211.

*

 1P. Wms. 660. 2 Fearne 276, 7-8, — 374, 5-6, Cruise, (title Devise) ch. 11, 576, 7-8-9, Powell’s Swinburne 1 vol.258. 7 East, 269, 274.

†

 Plow, 549. 1 Stra. 70. 4 Co. 286. 3 East. 120.

HeNdersoN, Judge,

delivered the opinion of the Court.

The fundamental rule in the construction of wills is, that the intention of the testator, if not inconsistent with the law, shall prevail $ and ail artificial rules have that object in view j and all the cases cited by the Defendant’s counsel and relied on in this case, are bottomed upon that rule. As where an estate is given to one for life, with a remainder that is void, and the executor is excluded, it raises a presumption that the legatee for life shall have the whole interest, because there is none other mentioned in the will to take, after the determination of tiie life estate. But I cannot imagine a case, where .a legacy can be claimed *under*a will, in express opposition to the plain intention of the testator, it is a contradiction in terms. But there are many cases., where the next of kin take in express opposition to the words of a will ,• there they take as next of kin under the law, and not under the will. For the right of the next of kin is defeated only by a substitution of some person to take in their place, and not by a declaration that they shall not take. As if a man by his will were to declare, that his next of kin should have no part of his estate, and not direct who should take : the next of kin would take, not under the will, but under the law. The wife’s claim in this case is *under*the will, that, is, *that her Ufe estate shall be extended into an absolute interest, because the ultenor limitations are void, and the executors**114*are excluded ;*which might raise a possible intent in her favor, were it not that there are words in the will in express opposition to such claim. And although she will £ajiC j)ai.t as one 0f the distributees, she will take nothing as legatee. Therefore she had nothing to bequeath to the defendant ,• for her interest, as one of those among whom the residue of the estate undisposed of by the will was to be divided, was not such an interest before the assent of the executors, as vested a legal title in her legatee.

Next, as to the right of the executors. Although all beneficial interest may be taken from them by the will, this does not affect their interest as executors or trustees, or that interest arising from their office of executors, which is necessary to perform the trusts of the will, or the trusts raised by law. They therefore are entitled to the possession of the *negroes;*nor will the assent given to the life estate, debar them from regaining the possession. An assent to a legacy passes an interest co-extensive with that *legacy;*and where there is a legacy to one for life or years, with a remainder, an assent to the legacy to the particular tenant, is an assent to the person in remainder, according to the English *law;*for they both, in law, constitute but one legacy. But where there is no remainder, the assent enures to the benefit of the particular tenant only j and the executor has a right to the possession of the chattel again, to perform the other trusts of his office. This-doctrine is illustrated by the decision of this Court in the case of Dunwoodie’s executors *v.*Carrington,* if it needed illustration.

In what manner the executors are to dispose of the property, is not, nor can it be brought before the Court in the present action, however much it may be desired by those interested in the *question;*they are not parties to this suit, and their rights cannot be adjudicated.

The Court are of opinion that the Plaintiffs arc-entitled to recover.

*

 2 Law Repos, 469.