#### WILLIAM W. VASS, *Adm’r., against*HARRIET FREEMAN, *Executrix.*

Where slaves, or other property, are bequeathed to two or more persons immediately, as tenants in common, with., a limitation over4to the survivors, or in case that one or more of them die, it is settled, that unless- the- contrary intent appear from other' parts of the will, those who survive the testator will take absolutely.

But where, from special circumstances and’ express words in- other-parts of the will, it appears that the testator referred to a survivorship, to take place between legatees after his death, the above general rule does not prevail.

Where A gave a joint estate,, for life, to.his mother and sister,, with an absolute estate to the survivor, expressing- a, belief that he would soon die, and that these two objects of his bounty would survive him — appointing them liis executrices — giving them minute instructions as to the management of the estate and the selection of their agents — their place of residence, and cautioning them against imposition, it was *Held*that the testator meant to give the property to the survivor of the two who should become so by the death of one of them after his death.

*222Cause removed from the Court of Equity of "Wake county.

The bill was filed to recover a legacy bequeathed to Amanda G. Freeman in the will of William G. Freeman. The following are the material clauses of the said will, bearing upon the question:

“3rd. I give and bequeath *to my*mother, and Amanda G. Freeman, the whole of my estate, jointly, and upon the demise of either, the survivor to have the whole in fee simple, forever.”

After describing the situation of his mercantile effects and funds deposited in several places, the will proceeds, “ and my negroes, perhaps they had better keep, and my goods, perhaps they had better dispose of on as good terms as they can. They were purchased for cash, and perhaps can be disposed of with advantage to the purchaser and my estate, which disposition can be public or private ; but I would not advise them to carry on the business, as they know nothing about it, and would likely be prejudiced in the financial affairs ; but think my mother and sister might qualify as my executrix, and employ William T. Dortch to settle the business up for them as their agent. In consideration of the persons, I now nominate my mother, Harriet Freeman, and sister Amanda G. Freeman, my executrixes, to execute and carry out my will in as full and ample a manner as I could, were I personally present.” He then notices that his brother Bryan had left a child, but declares, in violent terms, his unwillingness for ¡that child to have any part of his estate. The will then proceeds : *“*Perhaps it would be best for mother and Amanda to invest the bonds, notes and accounts, &c., in State bonds, if you could do so, as it would be a safe investment, and you could get the interest semi-annually. I do not know ■what to advise relative to living. Perhaps you prefer going to Raleigh to live, or perhaps to Franklin; but exercise your own discretion and will as to that.”

He then suggests that many persons may affect a sympathy, *“*and want to marry Amanda,” but he advises them *to*repel *223all sucb advances, and to consult their lawyer as to their affairs.

Both the executrices qualified, and undertook the burthen of administering the estate.

Amanda, the sister, mentioned in this will, intermarried with the plaintiff and died about a year afterwards, and the plaintiff took out letters of administration on her estate.

The plaintiff contends, that by the provisions of the said will, the limitations over on a death, are confined to a period within the life of the testator, and that on his death the interests of the legatees became absolute, and that as the administrator of Amanda, he is entitled to the personal estate bequeathed to her, and that by the *jus*ma/riti, he is entitled to hold the same. The prayer is that the defendant, as executrix, account and pay the said legacy to him.

The defendant answered, not disputing the facts, but insisting on the whole estate as belonging to her, claiming that of Amanda by survivorship.

The cause was set clown for hearing on the bill, answer and exhibit, and sent to this Court.

*B. F. Moore,*for the plaintiff.

*Phillips*and *C-reen,*for the defendant.

Battle, J.

When slaves or other personal chattels are bequeathed to two or more persons, immediately, as tenants in common, with a limitation over to the survivors or survivor, if, or in case that, one or more of them die, it is settled that, unless a contrary intent appear from other parts of the will, those who survive the testator will take absolutely. The rule which thus refers the period of survivorship to the death of the testator, was first laid down by Lord Chancellor *Oowper*in the case of *Lord Bindon*v. *The Earl of Suffolk,*1 Peere Will. 99, was followed by many cases in England, and has been recognised in this State in the cases referred to by the plaintiff’s counsel, of *Hogg*v. *Cox,*2 Dev. Eq. Rep. 121; *Hilliard v. Kearney,*Busb. Eq. Rep. 222; and *Biddle v.*
      *224
      *Hoyt,*1 Jones’ Eq. Rep. 159. The reason of the rule is given by sir John Leach Yice Chancellor, in *Allen*v. *Farthing,*(reported in 2 Jarman on Will's, 688, 689,) *“*that where a testator refers to death simply, the word’s- are necessarily held to mean death in his (the testator’s) life-time, the language expressing- a contingency, and death generally being not a contingent event.” If there be any time subsequent to the death of the testator; to which the period of survivorship can be referred, as, for instance, the death of a tenant for life, or the time when the property is to be- divided, that will be adopted instead of the death of the testator, unless a special intent to the contrary can be found in the will. This was decided by Sir JohN Leach i-n *Cripps*v. *Walcott,*4 Madd. Ch. Rep. 11, and has been sustained by many subsequent cases in England! and this State. See 2 Jai\ on Wills, 648 ; *Biddle*v. *Hoyt, %ibi supra.*Analogous to these eases of survivorship, are those-where bequests are made to a person-, w-i-th a limitation over *in case of his*death. The question is whether the- testator-uses the- words “in case of” in the sense of *at or-from,*so as to restrain the- prior bequest to a life-estate with a remainder-over, or uses them to. substitute another bequest in lieu of the-prior one, should that fail by- the death of the first legatee in the life-time of the testator. “-The- difficulty in such- cases,, (says Mr., Jarman,) arises from the testator having applied-terms of contingency to. an event, of all others, the most certain and inevitable-, and to satisfy which- terms it is necessary to connect with death- some circumstance, in association with which it is contingent; that circumstance, naturally, is the-time of its happening; and such time, where the bequest is. immediate (i. *e.*iu possession) necessarily is the death of the testator, there being no other 2>eriod! to whieh the words can be referred.” But though it is an established rule-, that where-there is a bequest simply to A, and *in ease of Ids death, or if he die,*then to B, A will take absolutely upon surviving the-testator, *(Lowfield*v. *Stoneham,*2 Strange’s Rep. 1261, *Trotter*v. *Williams,*Pre. in Chan. 78,) yet where there is another-point of time to which such dying may be referred, as is ob*225viously the case when the 'bequest is to take effect i-n possession at a period subsequent to the testator’s decease, the words in question are considered as extending to the event of the legatee dying in the interval between the testator’s decease and the period of vesting in possession. See *Hervey*v. *McLaughlin,*1 Price’s Rep. 264; *Home*v. Pillans, 2 Myl. and Keen’s Rep. 24. Thus it will be seen that, whether in the -case of survivorship, or in that o'f a bequest to one person with a limitation over, where the death of the legatee is spoken of as an uncertain event, it can be so only in reference to some other event, and that the death of the testator must, of necessity, be assumed as the event referred to when no other is mentioned in the will. Put even where there is no subsequent time to which the death of the legatee, spoken of as contingent, can be referred, and where the bequest is immediate, special circumstances will induce the Court to -construe it to mean the death of the legatee at *any*time, andaiot restrict it to the death of the testator. See *Billings*v. Sandom, 1 Bro. Ch. Cas. 893; *Nowlan*v. Nelligan, Ibid 489, *Lord Douglas*v. Chalmer, 2 Ves. Jun. 501. In the last mentioned case a testatrix bequeathed her residuary personal estate for and to the use of her daughter, Prances Lady D., and -in case of her decease, to the use and behoof of her .(Lady IPs) children, share and -share alike, to whom her trustees and executors were to account for and pay over and assign the said residue. Py a codicil, the testatrix gave a ring to her daughter Lady I).. Lord *Loughborough*treated the notion, that the testatrix -intended to provide for the event of Lady D’s. dying in her (the testatrix’s) life-time, as contrary to the natural import uf the words, and the distinction between the expression used and *at or from*her decease, as too --subtle. lie also relied upon the bequest of the ring, as being inconsistent with the supposition of her taking the whole interest in the residue ; and he observed that, under the circumstances which had happened, there was no other way by which the bounty of the testatrix could reach the children, but by giving the residue to Lady D. for life, with the remainder to her children. The remarks of *226Sir William Grant in *Webster*v. Hale, 8 Ves. Jun. 411, upon this ease, would seem to show that the circumstance of the gift of the ring ought not to have influenced the decision.

Prom the cases to which we have just referred, it appears clearly, that special circumstances will'prevent the application of the general rule which, in immediate bequests, refers the contingent terms, in which the death of the legatee is spoken of, to the event of the testator’s death. Much more will this be the case when such special circumstances are attended by words indicating certainty in the death of the legatee, or one of the legatees.

In such a case there is no necessity to restrict the death of the legatee to that of the testator, a restriction which Sir R. P. AedeN, M. R., in *Russell*v. *Long,*4 Ves. Jun. 551,called an unnatural construction, because, as Sir William: Grant said in *Brown*v. Bigg, 7 Ves. Jun. 279, the testator generally supposes that the *legatee*will survive him. The death of the legatee, therefore, where there is a limitation over after an immediate bequest, or where a survivorship is provided for, may be construed to mean, what it is in fact, a certain event without reference to any other event. The intention of the testator will then be carried out by giving effect to the ulterior limitation, or to the survivorship, after the death of the legatee, instead of being defeated by holding the interest of such legatee to be absolute, in ease of his being alive at the death of the testator. Applying this rule to the case before us, it gave a joint estate for life to the testator’s mother and sister, with an absolute estate to the survivor, and the whole scope of the will proves clearly, as the defendant’s counsel contended, that such was the testator’s intention. In every part of his will he shows that he expected to die soon, and that both the objects of his bounty would survive him. He gives minute information of the then existing state of his affairs; and being a merchant as well as a slave owner, he advises his mother and sister (whom he appoints his executrices), how they shall dispose of his goods and slaves. He selects a professional gentleman, whom he directs them to employ; points out the *227best investment for their money; and suggests one or two places for their choice of a future residence. The terms of the bequest are as follows: “ I give and bequeath to my mother and Amanda G-. Ereeman, the whole of my estate jointly, and upon the demise of either, the survivor to have the whole in fee simple forever.” It will be observed that the words of bequest import a joint tenancy, by which the legatees may still hold in North Carolina, though the incident of sur-vivorship was abolished by the act of 1784. (1 Eev. Stat. cli. 43, sec. 2 ; Eev. Code ch. 43, sec. 2.) There is nothing to indicate the wish or expectation of the testator that his mother and sister would divide the property, and he had the undoubted right to limit the whole absolutely to the longest liver. What is there, then, to prevent his manifest intention from being-carried into effect ? Only one plausible objection has been, or can be, urged against it. Had Mrs. Vass (who was the legatee, Amanda G-. Ereeman), left children, they would, in the event which has happened, of their mother’s death before her mother, have been excluded by this construction from any part of the testator’s estate. This is admitted to be an important consideration, and would, in a case of doubtful intent, have great weight in restricting the survivorship to the death of the testator. But we think the intention of the testator is expressed in terms too plain to admit of doubt. Besides the circumstances to which we have already adverted, it will be noticed that the death of the legatee is spoken of as a certain event. It is *upon*her death that the survivorship is to take place. There is no contingency either expressed or implied, and there is, therefore, no place for the application of the general rule which, in a case of necessity only, refers it to the death of the testator. In addition to this, the testator shows himself, that he had no particular wish to provide for any body except his mother and sister. He expressly excludes the only child of his deceased brother, and he warns his sister against the advances of suitors, in terms which shows that he did not wish her to many, and that he had very little idea of providing for her children. His disposition of his property *228may not be sncb as we can approve, but it was his own, and he had the right to give it to whom he pleased, and upon what terms he chose, provided that in doing so he violated no rule of law. We are bound to say, that the only fair construction of which the language of the will is susceptible, is not opposed by any rule of either the common or statute law, and that it is our duty to give effect to it. The plaintiff, as the administrator of his wife, is not entitled to any part of the testator’s property, and his bill must, therefore, be dismissed.

Pee CuexaM, Bill dismissed.