#### THE STATE TO THE USE OF R. H. LISTER *&*AL. *vs.*HENRY W. SKINNER & AL.

A. before the act of 1837, Rev. Stat. e. 122, s. 11, bequeathed as follows: “ I give to my son J. W. all my negroes, to wit &c. to him and his heirs lawfully begotten of his body; but if he should die without lawful heirs, then my wish is for S. W., to him and his heirs forever.” *field*that the limitation over to S. W. was too remote, and that J. W. took the absolute estate in the slaves.

The case of *Swain*v *Rascoe,*3 Ired. 2Q0, cited and approved.

Appeal from the' Superior Court of Law of Pasquotank county, at Fall Term, 1843, his Honor Judge Nash presiding.

This was an action of debt on the bond of Henry W. Skinner, as the administrator of Joshua Wooton, dec’d ; and the following case agreed was submitted to hi's Honok.

The defendant’s intestate- died in the year 183'9, *without issue,*leaving the relators his only next of kin, and this action is brought to recover what may be due to them as the distributees of the said Joshua Wooton. By a reference made in the case and an account thereupon stated, it appears that the amount of assets in the hands of the administrator on the 5th of September, 1843, after deducting all charges and expenditures, was two thousand and forty-four dollars and thirty-seven cents. By the said report it further appears, that the estate of the said Wooton is credited with the sum of two thousand nine hundred and seventy-five dollars, as the amount of sales of certain negro slaves, bequeathed by the will of Charles Wooton, deceased. The bequest of the said slaves is in the following words: “ I give and bequeath unto my son Joshua Wooton all my land &c, also my negroes, to wit, my negro woman Venus &c. them and their increase, to him and his heirs lawfully begotten of his body, but if he Joshua should die without lawful heirs, then my wish is, that Joshua Wooten, a son of my brother *58Samuel Wooton, now living in the west part of Tennessee, in Sumner county, near Huntsville, to him and his heirs forever, &c.” Charles Wooton made his will and died in the year 1825.

Should his Honor be of opinion, that the said Joshua, who was the first taker under the said bequest, and under whom the relators claim, took by virtue thereof the entire and absolute estate in the said negroes, then there is to be judgment for .-the plaintiff for' the said sum of $2044 37, with interest from the 5th of September, 1843. But should bis *Honor*be of opinion that the said first taker took only a life estate, then judgment is to be entered for the defendants. His *Honor*being of opinion that the defendant’s intestate took the whole estate in the said negroes, gave judgment accordingly for the said sum of $2044 37, and interest thereon, from which judgment the defendants appealed to the Supreme Court.

No counsel for the plaintiff in this court.

*Kinney*and *Iredell*for the defendants.

DaNIel, J.

Charles Wooton, the testator, died in the year 1825, after making his will, which contained the clause mentioned in the case agreed. Did that clause give to Joshua Wooton, the son of the testator, the absolute and entire estate in the negroes mentioned therein ? There can be no doubt,, that the words in the clause would create an estate tail m lands devised ; and the general rule is, that where-ever words in a will would create an estate tail in lands devised, the same words in a bequest of chattels, will carry the absolute estate. But an exception to this rule is, where there are words superadded to those, which, standing by themselves, would create an estate tail in land, which super-added words would shew and explain that the testator did not intend to create an estate tail in the chattels. *Swain v Rascoe,*3 Iredell, 200. But in this will, there are no such super-added, explanatory words to the bequest of the slaves. “To him (Joshua Wooton) and his heirs lawfully begotten of his *59body, bat that if he, Joshua, should die without lawful heirs, then over, &c.” We are therefore of opinion, that the judgment given by his Honor was correct, and the same must be affirmed.

Per Curiam. Judgment affirmed.