#### HENRY W. SKINNER AND WIFE *vs.*SAMUEL D. LAMB.

December 1842.

A. by will dated in December, 1836, devised and bequeathed, among other things, as follows: “The balance of my estate to be equally divided between my wife and children,” and in another clause “ My wish and desire is, should either of my children die, without leaving an heir begotten by their body or bodies, that the survivor or survivors have the whole,” and, in another clause, “ should my children all die without leaving an heir, begotten by their bodies, my wish and desire is, that my brother T. should heir the whole of my estate as allotted to my children.” The testator died, leaving three children, M. O. and E. M. died, leaving a child. After the death of M., 0. died without issue, leaving E. surviving. *Held*that all the estate of 0. so dying became vested in E. her only surviving sister, and that the child of M. was entitled to no share of it.

The cases of *Gregory*v *Beasley,*1 Ired. Eq, Rep. 35, and *Threadgitt*v *Ingram,*1 Ired. Rep. 577, cited and approved.

An appeal from the Superior Court of Law of Pasquotank County, at Fall Term, 1842, his Honor Judge Bailey presiding.

*156The action was detinue, brought to recover cert.-in slaves-mentioned in the declaration. On the trial, the will of William W. Freshwater was offered in evidence, (of which the parts material to this case are quoted in the opinion delivered in this court.) It was admitted that the executor qualified to the will, and assented to the legacies contained in it. It was also admitted that Samuel D. Lamb, the defendant, married Matilda, the daughter of the testator, and the same person mentioned in the will as one of his daughters — that Henry W. Skinner, one of the plaintiffs, intermarried with Elizabeth T. Freshwater, another daughter mentioned in the will, and who is also a plaintiff — that Orange Ann Virginia, the other daughter of the testator, died after the death of the testator, underage and without issue — that administration on her estate, was granted to Samuel D. Lamb, who, at the time of bringing this suit, had the negroes claimed in his possession, they being the negroes allotted to Orange, under her father’s will — that before the death of Orange, Matilda had died, leaving an only child who is still alive.

Upon these facts, his Honor instructed the jury that the plaintiffs were entitled to recover the negroes claimed in the writ. A verdict having been returned for the plaintiffs, and judgment pronounced accordingly, the defendant appealed.

*A. Moore*for the plaintiffs.

No counsel for the defendant.

Daniel, J.

William W. Freshwater made his will, and, after some devises of land and personal property, and directing his debts to be paid, bequeathed as follows : “ The balance of my estate to be equally divided between my wife and children.” The testator at his death had three children, daughters, Matilda, Orange and Elizabeth. In another clause of the will the testator said, “ my wish ánd desire is, should either of my children die,' without leaving an heir begotten by their body or bodies, that the survivor or survi*157vors have the whole. And should my children *all*die without leaving an heir begotten by their bodies, my wish desire is, that my brother Thaddeus Freshwater should heir the whole of my estate as allotted to my children.” Matilda married and then died, leaving an only child, which is still alive. Elizabeth married Henry W..Skinner, and they aie the plaintiffs. Orange died without issue, and .after the death of her sister Matilda. The executor of William W. Freshwater had assented to the legacies. The defendant has possession of the slaves, which were allotted to Orange in the division of the property under her father’s will; he refused to surrender them to the plaintiffs, and they have bro’t this action of detinue to recover them. The judge was of opinion, that the plaintiffs were entitled to recover these slaves. And we are of the same opinion, upon the authorities of *Gregory*v Beasley, 1 Ired. Eq. Rep. 25, and *Threadgill*v Ingram, 1 Ired. Rep. 577. *Ferguson*v *Dunbar,*3 Bro. C. C. 469, in note (Belt’s ed.) 2 Roper on Legacies, 322. On the death of Matilda, leaving a child, the hopes and interest of the testator’s brother, Thaddeus, (the ulterior legatee,) were extinguished; because he could never take, unless *all*the daughters died without leaving issue. The three original legacies were vested, on the death *oí*the testator, subject each to be divested, and go over to the survivor or survivors, on the death of either legatee without issue. In this case, Elizabeth is the only *survivor,*and must take the entire legacy, that had been assigned to Orange, who died without issue. The court regrets that the child of Matilda is excluded, but we can only construe wills, and are not authorized to alter or make them.

Per Curiam. Judgment affirmed.