#### JOSIAH AND GEORGE H. YOUNG, *Executors, against*BENJAMIN YOUNG *and others.*

The words *“*which negro I design for the benefit *of*A. Y. (a married woman) and her children, and not to be subject io any debt or debts which J. Y. (the husband) may contract, or have contracted,” were *Held*sufficient to give a solo and separate estate to the wife and a remainder to her children.

Where a negro woman was given by parol to a married daughter, and after the woman had a child, the owner willed the woman, and *her increase*to the daughter, reciting that the testator had mentioned the said woman in a bill of sale made by him to the husband, and at the time of making the will, executed á bill of sale for her to the husband, dating it back to the *217time of the parol gift, it was *Reid*to be a confirmation of such gift, and passed the child as well .as the mother.

The words “ *all of every*thing on hand,” in immediate succession to a bequest of a liovse, house-hold and kitchen furniture, shop and plantation tools, were *Reid*not to pass notes and other dioses in aétion.

Cause transmitted from the Court of Equity of Stokes county.

The bill was filed by the Executors to obtain the advice of the Conrt upon the following clauses in the will of Eobert Y oung, deceased, viz:

*“*Item 3rd. I will and bequeath to my daughter Anna Young, to her and her bodily heirs, my negro woman Mariah, aged about forty-four years, -which negro I desire for the benefit of Anna Young and her children, and not to be subject to any debt or debts which Jesse Young may contract, or have contracted.”

*“*Item 9th. I will and bequeath to my son John Young, in addition to what I have had to pay for him, a horse, if there should be one on hand, also one side-board, one book-case, two beds and furniture, one clock, my shop tools, and all my plantation tools, and my kitchen furniture, two old carryalls, all the house furniture not heretofore mentioned, also the stock, and all of every thing on hand not otherwise mentioned.”

*“*Item 10th. I will and bequeath to my daughter Mary A. Powers, a certain negro girl, named Manda, which she has heretofore taken in possession, and the increase of said negro, which girl is mentioned in a bill of sale to E. E. Powers, to have and to hold to her, her heirs and assigns forever.”

The first point upon which the plaintiffs desire to be advised is, whether the words in the 3rd item of the will are sufficient to secure to Mrs. Anna Young a separate estate in the slave Mariah, or whether it goes to the husband Jesse Young.

Shortly after the execution of the will, the testator placed some notes, on divers persons, in the hands of the plaintiffs, requesting them to collect them, and apply the proceeds thereof to the payment of his debts,.but he died before they had time to collect them. As there is no residuary clause in the *218will, the defendant John Young claims these notes by virtue of this expression in the 9th clause, “all of every thing on hand not otherwise disposed ofwhile the next of kin insist that these notes are not disposed of at all by the will, and that the proceeds of them must be distributed among them according to the statute of distributions.

The remaining question grows out of the 10th item: The woman Manda, after being put into the possession of Mrs. Powers and her husband, had a child named Sam, which is not mentioned specifically in the will; but it is pertinent to the question to state, that the testator made the deed, conveying Manda to B. E. Powers, contemporaneously with the execution of the will, but antedated it so as to make it reach back to the time of putting the slave Manda in the possession of his son-in-law Powers, which was before the birth of Sam.

John Young claims Sam as not being disposed of in other parts of the will, and as coming under the clause of the will above recited, under which he claims the notes.

Powers claims Sam either by force of the word increase, in the will, or by virtue of the bill of sale, or by virtue of the original parol gift of Manda, confirmed subsequently by the will and bill of sale, which he contends will act retrospectively and reach' to a period before the birth of Sam ; while the next of kin -contend that there is an intestacy as to this slave, and that he is distributable according to the statute.

There is no disagreement as to the facts, and all parties submit that the Court shall decide the points as stated by the executors.

No counsel appeared for the plaintiffs in this Court.

*Morehead*and Miller, for the defendants.

Nash, C. J.

The bill is filed by the plaintiffs as the executors of Robert Young, dec’d., to obtain constructions of the 3rd, 9th and 10th clauses of the will. The 3rd clause is as follows: I will and bequeath to my daughter Anna Young, to her and her bodily heirs, my negro woman Mariah, aged about *219forty-four years, which negro I design for the benefit of Anna Young and her children, and not to be subject to any debt or debts which Jesse Young may contract or have contracted. The authorities on the subject are abundant to show that there are no technical words peculiarly appropriated to the creating of a separate estate in a married woman. The Court in the construction of such instruments look to the intention of the donor; if that be clear, the Court will execute it, keeping in mind that the governing-principle is that the husband is not to be deprived of his *jus mariti,*except by express words, or by a just inference. Lewin on trusts, 150; *Ashcraft*v. Little, 4 Ire. Eq. Rep. 238. The words here are, “ and not to be subject to any debt or debts which Jesse Young may contract, or (may) have contracted.” Here is a plain and manifest intention on the- part of the donor, that the slave Mariah shall be for the sole and separate use of the wife and her children. The husband, Mr. Young, has no interest in the slave.

The 10th item is as follows: *“*I will and bequeath to my daughter Mary A. Powers, a certain negro girl named Manda, which she has heretofore taken in possession, and the increase of said negro, which girl is mentioned in a bill of sale to B. E. Powers, &c.” There is no contest as to the right of Mrs. Powers to the woman Manda. It appears that previously to the making of the will and the execution of the bill of sale, while the woman was in the possession of Mary A. Powers, Manda had a child born named Sam. To whom does he belong ? Mr. Powers claims and holds him as his property under the term *increase*in the will; and if not under the will, under the bill of sale. We think he passed to Mr. Powers by neither instrument. We will dispose of the bill of sale first. That instrument which is an exhibit in the case, bears date the 14th of February, 1846. The will was made on 8th of Sept., 1855, and the testator died on 2nd of December of the same year. The bill of sale was executed and delivered at the same time the will was. The deed takes effect from its delivery, and not from the date mentioned in it. It disposes of nothing but the woman Manda. It makes no mention of Sam, who *220was the property of the testator. The claim, therefore, *of*Mr. Powers under the deed, is not well founded. Neither is it under the will. It is well settled that wills take effect and speak from the death of the testator, unless a different intent is expressed; consequently, a gift of a negro woman and her increase is taken to mean such as she may afterwards have. *Turnage*v. Turnage, 7 Ire. Eq. Rep. 128. This is fully to the point before us, and, therefore, it is not necessary to cite other authorities of which there are many. Sam, then, passed to Mr. Powers neither by the will nor by the deed. But he did pass by virtue of the parol gift; the will and the deed operating as a confirmation of the gift. The fact of antedating the deed proves incontestably that he did intend to confirm it. *Woods*v. *Woods,*2 Jones’ Eq. Rep. 420; *Lowe*v. Carter, *Ibid,*327.

The 9th item of the will is as follows: “ I will and bequeath to my son John Young, in addition to what I have had to pay for him, a horse if there is one on hand ; also one side-board, one book-case, two beds and furniture, one clock, my shop-tools, and also my plantation tools, and my kitchen furniture, two old carryalls, all the house furniture not heretofore mentioned, also all the stock, *and all of every thing on hand not otherwise*mentioned.” Under this clause John Young claims the boy Sam, and also all the notes and bonds put by the testator in the hands of his sons Josiali and George II. Young.

This claim cannot be allowed for several reasons. *First.*Where the words, goods, chattels and other general terms are used, coupled with words of a limited signification, they will be restrained to things *ejusdem generis ;*2 Wms. on Ex’rs., 752. Thus, where the testator bequeathed to his niece all his goods, chattels, household-stuff, furniture and *other things*which should be in his house at A., it -was decided that cash found there in the testator’s house did not pass, for the -words other things, should be intended of like nature and species with those before specified. *Trofford v. Berridge,*1 Eq. Cas. abr. 201; Ambler, 612. The clause which we are now considering is to be confined to all such things as the testator had at his death, of the nature and species of the goods with which the words *221
      *other things*are coupled. "We have disposed of the question as to Sam, but John Young also claims, under this clause, all the notes and other choses in action, and all the estate not specifically bequeathed to others. He is entitled under that clause, to every thing belonging- to the testator at the time of his death, which are *ejusdem generis*with the other property with which they stand connected in the clause, and which is not specifically bequeathed;, for instance^if he had more beds, or more bureaus, than are bequeathed in the will, he is entitled to them. He is. not entitled, to the notes- and the- choses in action, nor the money on hand at the- time of the testator’s death. The notes and choses. in action do not pass under the will, there being, no residuary clause. As to them, the testator died intestate, and tlxey are to be divided among the next of kin under the- statute of distributions.

Pee. OuejaM,. Decree accordingly..