#### CHARLOTTE C. SCALES, *Executrix, against*PETER SCALES AND OTHERS.

Courts of equity will not anticipate and decide questions, which cannot be attended with any present practical results.

Where a testator bequeathed certain of his property, specifically, and then provided, “ the balance of my estate to be sold and the proceeds divided among my children hereinafter named,” it was *held*that the bonds, notes and accounts due the testator, and the cash on hand, were not embraced by this clause.

A legacy to a grand-daughter, who died before the will was made, is void.

Cause removed from the Court of Equity of Rockingham count}1'.

The bill is filed by Charlotte Scales, the executrix of the last will and testament of James Scales, deceased, and prays the aid of the Court in construing the said will, which is as follows : “ First. I give unto my beloved wife, Charlotte C. Scales, the tract of land, whereon I now live, containing eight hundred and five acres, for and during her natural life, or so long as she may continue a widow, but in case she marries again, to have one-third part thereof; also, I lend her the following negroes, during her life, to wit, Daniel, Smith, John, Leathy, Aggy, America, and each of their youngest children, Mitchell, Pinckney, Henry and Granville, three head of horses, four cows and calves, six beef cattle, twenty head of hogs,” ■&C., * * * “ and after the death of my wife, I give the said tract of land to my three youngest children, Elizabeth, 'Susan and Nicholas Dalton, to be equally divided between them.

2nd. “I give to my sons, Peter and Hamilton Scales-, the tract of land Peter now lives on.

“ Item 3rd. I give to my son, Peter Scales, thréé hegro'és, Martha, Charles and York.

“Item 4th. I give to my son, James Scales, twó negroes, Peggy and Sabry, and four hundred dollars.

“Item 5th. I give to my son, Hamilton Scales, three ne-groes, Joseph, (jr.) Frank and Alexander.

“ Item 6th. I give to my son, Rawley S'cáTéB, three negroes* Hurch, Biddy and Sam-.”

*164In the succeeding clauses of the will, the testator gives a number of specific legacies of slaves and several pecuniary legacies. The 13th Item is as follows: *“*I give to my turn grand-daughters, Mary Ellington and Lucy Y. Irwin, one hundred and fifty dollars each.” The will then concludes as follows: “My will and desire is, that the balance of my estate, not disposed of, be sold, and the money equally divided between my children, hereinafter named, to wit: Peter, James, Hamilton, Robert, Rawley, Elizabeth, Nicholas D. and Susan, after deducting as much as will pay for a tombstone for my grave, containing my name and age; also, the ne-groes and other property loaned to my wife, during her life, after her death, be sold, and the money equally divided between all my children, agreeable to law *\*and lastly, I constitute and appoint my beloved wife, Charlotte C. Scales, my executrix, of this my last will and testament.”

The bill prays to be instructed: Firstly. Whether the plaintiff, Charlotte C. Scales, takes absolutely, the horses, cows and calves, beef cattle, hogs, money, &c., given her in the first item of the will, or whether she takes only a life-estate, and if the latter, then how far she may become responsible for such as shall be consumed or lessened in value, by the use.

Secondly. Ho the bonds, notes and accounts duo the testator, and the cash on hand, fall into the residuary fund, created by the last clause of the will? or did the testator die intestate as to them ?

Thirdly. The bill sets out that Mary Ellington, to whom the testator bequeathed a pecuniary legacy of one hundred and fifty dollars, by the 13th clause of his will, died before said will was made, leaving several children surviving her, and it prays the advice of the Court, whether this legacy vested in her children, as the representatives of their deceased parent, or did the testator die iu testate as to this fund? or does it fall into the residuum, created by the last clause of the will?

Fourthly. The bill alleges that, at the making of the will, the testator had only one slave, named Alexander, a child of *165the woman, Aggy, then about eighteen months old ; by the 5th clause of the will, the testator gives to his son, Hamilton, slaves, Joseph, (jr.) Frank and Alexander.; by the first clause, he gives to his wife, for life, woman slave, Aggy, and her youngest child. At the time the will was made, this child, Alexander, was Aggy’s youngest child, though she had another, born between the making of the will and the testator’s death. To whom does Alexander belong?

Fifthly. The bill further shows that, at the death of the testator, there was a crop growing on the land devised to the plaintiff, and that she kept some of the negroes, specifically bequeathed to herself and to testator’s children, on the land, in order to mature the crop; that this crop, when so matured, passes into the residuum, in which she, and some of the children, whose slaves she employed, have no interest. Are they entitled to an allowance for the hires of the slaves, employed in cultivating the erop.

The cause being set for hearing upon bill, answer and exhibits, was sent to this Court by consent.

No counsel appeared for the plaintiff in this Court.

*Moreheacl, McLean*and Gorrell, for defendants.

Battle, J.

The bill is filed by the executrix of James Beales, deceased, for the purpose of obtaining the advice of ■this Court, as to the construction of the will of her testator, in several specified particulars.

1. The executrix wishes to know whether she has an absolute interest or only a life-estate in certain property of a perishable kind, and if the latter, how far she may be responsible for its consumption in the use; and also how the proceeds of the slaves, given to her for life, and then to be sold, are to be divided. Those are questions which will arise after her death, and she has no interest in having them decided now. We have often said that we will not anticipate and decide questions, which cannot be attended with any present practical results.

2. The residuary clause of the -will, does not include the money on hand, or that due on bonds., notes and accounts, *166because it cannot be presumed that the testator intended them to *“*be sold.” The case of *Pippin*v. *Ellison,*12 Ire. Rep. 61, is a direct authority upon this question. This fund is, therefore, undisposed of by the will,-and must, after the payment of debts and the pecuniary legacies, for which it is primarily liable,1 be divided amongst the testator’s next of kin, according to the statute of distributions. The residuary clause, however, imposes the expense of procuring a tombstone for the testator, upon the proceeds of the property therein directed to be sold.

3. The legacy to the grand-daughter, Mary Ellington, who died before the testator’s will was made, was void, and did not become vested in her children, because there was no person in existence to answer the description, contained in the will, at the time when it was made, or at any other time during the life of the testator. The Revised Code, ch. 119, sec. 28, differs from the Revised Statutes, chap. 122, sec. 15, in using the words “ child or other issue” instead of child or children,, which would include a grand-child, if such were living and capable of being a legatee at the publication of the will, but we think it cannot embrace one then dead. The statute was intended to apply to a *lapsed*and not a void legacy. This legacy being void, does not pass under the residuary clause, for the reason given in the answer to the next preceding question, but is distributable among the next of kin.

4. The slave, Alexander, does not pass to the widow, because, at the death of the testator, when the will speaks, he was not his mother’s youngest child ; but he does pass to the testator’s son, Hamilton, because he answers the description given in the will, in every particular, and there is no room for extrinsic proof, because there is no latent ambiguity. The youngest child of Aggy will, of course, belong to the widow, for life.

5. The owners of the several slaves, who were employed in the cultivation of the crop, will be entitled, respectively, to their hires. For this, see *Harrell*v. *Davenport,*5 Jones’ Eq. 4.

ReR Curiam,. Decree accordingly.