#### John Bullock *v.*Richard Bullock, *et al.*

The executor of a will which is of doubtful import has a right to apply to a court of equity to have it construed, and its trusts declared.

*William Bullock,*late of Granville county, duly made and published his will, whereby he devised as follows:

'“I give my daughter *Susan Jig gits,*the 12 negroes, “and stock of horses and cattle, household goods, &c. “put in her possession on her marriage with Dr. *Win. “Dams,*also one thousand dollars, which was appropria- “ tecl to the payment of Dr. *Davis’*debts as executor to “ his estate after his death, which money was credited “ said estate in settlement of account.

*“*I give unto my grandson, *Wm. B. Inge,*the 14 ne- “ groes lent to his mother *Elizabeth Inge,*with all the “ stock and household-furniture put in her possession at “ her marriage with Dr. *R.Inge;*the negro property, “I have heretofore made my grandson, *W. B.*a deed of “gift for, which is in full of the legacy to my said de- “ jiarted daughter *Elizabeth.*

*“*I give unto my son *John Bullock,*the eight thousand “ dollars furnished in establishing him with a store in “ Clarkesville in 1818, which has been paid over to “him, also, *Squire*and *Charles*being a part thereof; “ also a house, lot, furniture &c. furnished, all of which “I hereby give him and his heirs forever in like manner. “ I now give him four thousand dollars to be made out “of the first money that is made after paying all the “ debts that may be owing by the concern of *Bullock*& *“ Jforxvood*in Warren, North-Carolina.

“ I give unto my son *Richard,*8000 dollars and pro- *“*fits proceeding therefrom, as settled by us at the dissolution of our business in 1825, which may be seen “in *Win.*& *R. Bullock’s*Ledger C, also, &c. to him and “ his heirs forever.

“ I give unto my daughter *Lucy Lewis,*the fifteen ne- “ groes I placed in her possession at her marriage with “ with Mr.' JV*. *M. Lexvis,*with &c. to her and her heirs “ forever.

*308“ I give unto my son *James M. Bullock,*my two blacksmiths, *Peter*and *Tom,*.with the black-smith’s tools “and seven thousand dollars to be made out of my es- “ tate to be paid to him by my executor whenever my “son *James*marries, or arrives at the age of twenty “ years, (to have interest from the time of my decease) “ or at a sooner period, should my executor think it “would be to *James’*interest to have it; I also give “ him &c.

“I also give unto my wife *Lucy*and son *Lames,*the “ part of the tract of land I now live on, lying on the “ south side of the road leading from Capt. *W. Norwoods’*“ mill to Shilo meeting house being part of &c. with all the “ negroes thereon, except those heretofore given, &c. *6a-“briel,Joe. Silvey, Creatia*and boy child *Mick, Bob, Jenny “¿¡•soi^Dete"*(Culbreath,) the balance of negroes on said “plantation, about fifty one or two in number, with all “ the stock thereon not heretofore given, household and *“*kitchen &c. all of which is given during the natural life “of my *-\viicLucij,*and at her death I give the land to my “son James his heirs and assigns forever. Should my son “ *James*marry, or should there become any discontent “between my wife and son *James,*I would *recommend*“ to my executor to have a comfortable house built, but “not very costly, on some part of the land for cither “party, as will be most advisable; and let there be a “ division of these fifty two or three negroes, *James*to “ have one third of them, my wife two thirds.

“I give unto my sons *John, Richard,*and the heirs “ proceeding from the body of *William II. Bullock,*the “tract of land lying on the north side of the main road “ leading from, &c. to them and their heirs forever.

“ I give unto my son *John Bullock*in trust for the ben- “ efit of the heirs of my daughter *Fanny Jinn Hunt*the “fifteen negroes I putin her possession at her marriage “with Capt. J. *Hunt*— also the tract of land whereon “ Capt. Hunt now lives containing 585 acres. I give “the stock of horses, cattle, and household furniture “loaned John and *Frunces,*in the same manner to them “ and their heirs forever, to the heirs proceeding from *309“the body of my daughter *Fanny Jinn ;*but be it understood as I have advanced money and paid for this land “ given the heirs of *Fanny Hunt,*there will be a draw- *“*back on those legacies which I may give to the said *“Fanny Ann,*and it will be understood that each Iega- “ tee must make up these debts and have so much dis- “ counted in their ratio at the division of my estate, that “ each legatee may share and share alike.

“I give unto my son *John Bullock,*in trust neverthc- “ less for the heirs of *W. II.*Bullock, the interest I purchased of Col. *John Baptist*in Clarksville, of stock in “ trade with said son *John*of about $5,400, to still con- “ tinue to manage it to the best advantage as he has done “for several years past, with all purchases that he has “ made of said stock for the benefit of *John*and *W. Bullock,*I do hereby leave for the benefit of the heirs of “ *W. Bullock;*it is well known that the first niqiety given “ my son *William,*there is none remaining.

“Having about 18 negroes at the mill plantation in “ addition to them will be added *Gabriel,*&c. making if '“ no mistake in count, twenty-seven there, with all the “stock of every description in said plantation except '“ such property as my son *W. H.*has in loan and brought “with him, with all thereto pertaining, with the balance “ of the concern in Warren, with all the debts due me “ after discharging my own debts, with every other spe- •‘ cies of property I possess that does not belong to the “ tract of land whereon I now live, after paying *Janies*“ his legacy, be equally divided between my sons *John, “ Richard*and the heirs of *W. II. Bullock*as one distrib- “ utce, my daughter *Susan Jiggits, Lucy Lewis,*the “ heirs of *Fanny Hunt*as one distributee,- and my son *“ James M. Bullock,*all the foregoing property, tobe “ equally divided share and share alike ; but it will be “ understood, that my son *John Bullock*and the heirs of “ *Fanny Hunt*will have a considerable draw-back as “ they are considerably beforehand in receiving of my “ estate; therefore, what they have and will receive will “ be accounted as part of their legacy and the quota *310*ls*made up to them, so as all will share and share alike *“*at the first division.

((^ftcr tjie {|eatll ()f my Wjfe> I wish an equal division *“*of my estate that may have been loaned to her or my *“*son James, with every species of property not hcreto- *“*fore* given, tobe equally divided between my son *John, “ Richard*and the heirs of *TV. Bullock,*as one distributee, *“*my daughter *Susamiah Lucy,*the heir of *Fanny Hunt, 11*as one distributee, and my son *J. M. Bullock*share and “ share alike, all the property that will be received by *“*virtue of this my last will and testament, (not ad ver-ting to that that has been heretofore given.) I give it *“*on the following conditions: if those to whom it is giv- “ en die without a lawful heir, then in that case for their “property to return to the surviving brothers and sis- “ ters, or to their heirs in case they should die first and “leave heirs.”

“A codicil to the foregoing will.

“I give unto my son *Richard*Bullock, negro boys “ *Anthony*and *Sam*now in his possession. I give unto “ my son *John Bullock,*for the benefit of the heirs of *W.*“ *Bullock,*which may proceed from his body, *Jonas,*&c_. “ with their future increase. The negroes named in the *“*foregoing will given my son *John for*the benefit of the “ heirs of *(V. Bullock*and *Fanny Hunt,*which was nam- “ ed without the increase, but be it understood that I “ intended to convey them and their increase, and do “ hereby convey them and their increase.”

Of this will the testator appointed his son, the plaintiff, sole executor. The bill charged that in many respects, it was difficult to put a construction on the will which was satisfactory to the plaintiff or which'he could safely adopt, especially as some of the legatees and devisees (those supposed to be intended by the description of the heirs of *William H. Bullock*and *Fanny Ann Hunt,*for whom the plaintiff was constituted testator,) were infants of tender years. The bill then set forth the difficulties which the plaintiff experienced, in the following order: That it was uncertain whether the issue of the slaves *311'mentioned in the first, second and fifth clauses of the will passed *to*the legatees respectively named therein, or was a part of the residue and subject to division as provided by the residuary clause.

That as to the bequest to the plaintiff of the testator’s interest in the Clarkesville store “in trust for the heirs of *William H. Bullock,"*the plaintiff alleged'that fie was in that store a partner with his testator — that the testator’s interest therein had been appropriated by him for many years to the maintenance and support of the family of his son *William H. Bullock*who had become insolvent —that by these advances the property had been nearly exhausted — that it was the testator’s habit to charge his children with all the property which he conveyed to them and credit them with that which they returned to him— that a short period before the death of the testator the plaintiff had by his directions assigned all the effects of that partnership to tiic heirs of *William*and *Richard Bullock,*another company in which the testator was in-, terested, that one half of the sum paid by the latter co-partnership for this assignment was placed on the books of the testator to the credit of *William JI. Bullock,*so that in appearance this was a debt due him when in fact it was a legacy. The plaintiff in this respect prayed that this balance might be declared not to be a debt, and as ho occupied the threefold character of surviving partner, executor and trustee, that his accounts might be settled under the direction of the court; and farther that if; might be declared whether in the legacy to the plaintiff intrust, for the heirs of *William H. Bullock,*the testator’s share of the profits passed.

*The*plaintiff then set forth his belief that the testator constituted him. a trustee for the children of his son *William*and his daughter *Fanny Jhin^ flnnt,*solely because of the insolvency of their respective fathers, and that he had the utmost confidence in the integrity of his son and son-in-law and would haye constituted them trustees for their respective children, had he not feared that thereby the property given the latter would have been subjected to the debts of their fathers.

*312The plaintiff then avowed his belief in the integrity of bis brother and brother-in-law, and prayed that they be constituted in his stead. If the plaintiff could not suc-cee¿ ju this, then he prayed that it might be declared whether he was a trustee for the children of *William II. Bullock*and *Fanny Jinn Hunt*born at the date of the will, or at the death of the testator — or whether the trusts extended to children subsequently born. The plaintiff further requested direction as to the course he was to pursue in making the final division, whether he was to estimate in making up the share of each of the legatees the balances against them on the books of his testator, and also the pecuniary and specific legacies given them by the will; and as he was interested in that division, that it might be. made under an order of the court.— Upon this subject the plaintiff admitted that lie was to account in the division of the residue for the 4000 dollars given him by the fourth clause of the will, and he insisted that the testator, in speaking in the tenth clause of the drawback due by the plaintiff and the heirs of *Fanny Jinn Hunt,*alluded to the 4000 dollars given the former and to the payment mentioned in the eighth, clause made by him for the land devised to the heirs of the. latter.— And finally, the bill stated that the plaintiff was entirely ignorant of the property which was subjected to the cross remainders created by the last clause of the will — whether the cross remainders attached upon all the property which passed under the will, or were confined to that disposed of by the residuary clause — whether they applied to all legacies as well pecuniary as specific, or whether they were confined to the last — and if applicable to the pecuniary legacies, the plaintiff prayed he might be protected in paying them over.. AÍ1 the parties interested under the will, wore made defendants_ of these *William B. Inge*was a non-resident and did not appear and answer.

By an amendment, the plaintiff stated that one of the children of *Fanny Jinn Hunt*had died and that he had been advised to administer upon its estate, but he averred that he was entirely ignorant whether the interest of *313tlmt child under the will of his testator survived to its brothers and sisters, or whether he, the plaintiff, held it in trust for the next of kin, and in this Respect he prayed instructions.

By consent, the master in the court below was directed to enquire whether *Wm. 11. Bullock*and *John Hunt*were proper persons to substitute as trustees for their respective children, and whether the property of their children would be safe in their hands. It was also referred to him to state an account of the-Clarkesville co-partnership, and of the amount which the testator had paid, and the plaintiff was still liable to pay for the land devised to the heirs of *Fanny Jinn*Hunt, and also to state an account of the property advanced by the testator to his children, contained in the books. The master reported that *W. H. Bullock,*and *John Hunt*were proper persons to appoint trustees for their children, and that the property which their children took under the will, would be safe in their hands. He also stated the accounts ordered to be taken, and there were no exceptions filed to his report.

The case was "discussed several terms ago, by *Jfash*for the plaintiff, and *Badger*and *Devcreux*for defendants.

The plaintiff made no questions which were adverse to the interest of the several defendants, but submitted to any decree which would indemnify him.

Henderson, Chief-Justice

This bill is filed by *John Bullock,*executor of *Win Bullock,*to have the *trusts*of his *testator’s*will declared, and to have tiie *advice*of the court on the execution of them. It is a proper case for such an application, as the will in many parts is of very doubtful meaning.

The question which presents itself is as to the increase of the slaves bequeathed to his daughters *Susan Jiggils*and *Lucy Lewis,*and to his grandson, *Wm. B. Inge..*As to tlie latter, wo decline to give an opinion, as the testator says he lias made his grandson a deed of gift for the slaves. This deed must determine the question, and we have it not before us.

*314A legacy to a daughter of “the negroes I placed in her possession at her marriage,” passes the increase as well as the original stock.

A parol gift of slaves is not entirely void by the act of 1806,(72ct. *c.*701,) the death of the donor, or a confirmation of it by him renders it good *ab initio.*

As to the two former, we think that the increase passed to his daughters respectively, together with the original stock, as wre look upon the bequests rather as confirmations of prior gifts than as legacies *de novo.*The testator in describing the original stock, says they are the slaves which he put into their possession, upon their . . marriages respectively Our act of 1806, *{Rev. c.*701 does not annul entirely gifts of slaves made by parents to children, either express, or those presumed from a delivery of possession, but leaves them in the hands of the child as an advancement, if the parent does not by will or otherwise, declare the contrary. And although in this case, they are not advancements, so as to be brought into hotch-pot, for there is no intestacy, yet they have that character so far as to -form a guide in-arriving at the testator’s intent. There are additions al reasons appearing upon other parts of the will, which support this conclusion. In the clause creating cross remainders, we understand that this property is not esteemed as property received under the will, but as falling within the description of that heretofore received. The codicil affords strong proof, that as to these legacies he did not deem it necessary to mention the increase in order to pass them. For he therein declared, that as to the increase of the negroes bequeathed to his son *John,*in trust for the heirs of his son William, and of his daughter *Fanny*Jinn, he intended it should pass, anchis silent as to the increase of those bequeathed to his daughters *Susan*and *Lucy.*In the will, they were bequeathed in the same way without the increase. As to those given in trust for the heirs of his son and daughter, there had been no prior gift or delivery to the trustee, or the heirs, which the will could confirm. And therefore the testator very probably concluded, that it required express words to carry the increase. He there inserted the increase in the codicil as to them and said nothing as to the legacies in question, thinking as we believe, that the increase passed by the confirmation of the original gift. An additional reason might be given. He made a de^d of gift to his grandson, *Wm. B. Inge,**315for ihe negroes lie put into the possession of his mother under the same circumstances. This' deed carried the interest from its date. Why then it may be asked, should he make this exception against these two daughters ?

A legacy of stock in trade and all purchases made therewith, gives the legatee the profits there.

Wc think also, that the bequest to the plaintiff of the testator’s interest in the Clarkesville si ore, in trust for the heirs of his son *William,*carries with it the testator’s share of the profits. This, we think, sufficiently appears on the face of the will. But taken in connexion with the master’s report made from the books of the concern, and from the testator’s own books, to which wo think the testator has *given*a testamentary character and which ought to be proved as parts of his will, as far as they are referred to in it — there cannot be a doubt on the subject. The words of the will are — “my said son *John,*(who became the partner of the testator after the purchase) is to continue to manage it to the best advantage, as ho has done for several years past, with all the purchases lie has made of (with) said stock, for the benefit of *John*and *William Bullock,*I do hereby leave for the benefit of the heirs of *Win. H.*Bullock.” From the master’s report, it appears that nearly the whole of the stock and profits, at least a great part thereof, had been applied to the use of *William IS. Bullock,*with the testator’s consent. I say with his consent, for he was a partner, and lived in the neighborhood, and it is presumed he knew the state of the books. And further, the sum of $1015 10, the one half of the amount given for the goods by *William*and *Richard, Bullock,, to William*and *John Bullock,*is carried to the testator’s own books, and entered as a credit thereon to *Jfm. H. Bullock.*We cannot but understand from this, that the appropriations made to the use of *William SI.*Bullock, by *John Bullock,*the active partner, 'were known to and approved of by the testator. And these advances made to *Jim. H. Bullock,*and appearing on the testator’s books, as charges against him, against whom and all his other ©hildren, it appears that the testator kept accounts, is conclusive evidence to show, both that the testator in* *316tended tbo profits to pass ; amt also approved of the ap-propriatiou of both stock and profits by *the plaintiff,*the active partner, to the use of *Wm. II. Bullock.*No exceptions being taken to the master’s report on this subject, the same is confirmed; and the executor is directed in closing the accounts of said concern, to make the said report the basis of the settlement.

A legacy to tlie lieirs of a living person, is to bo construed as to his children, if it will that he is li-*v'ms-*

And in that case after horn children take un-dor the words “heirsproceeding from Uls body» ■

The next question is, as to the meaning of the words, *heirs of the body,*or *heirs proceeding from the*body: for ,. , , . , . . .. . . , testator uses both expressions indiscriminately. — - The words imnort a present gift. And if there is no person to taKc the legacy, it is void. As to the meaning of the words *lieirs of the body of Wm. II Bullock,.*we arc relieved from all difficulty on the subject. For the testator notices in another part of his will, that his son „ . ,. _ , ,. , *William 11.*is ahve. In speaking of some article, lie says, “which my son *William II.*has now on loan.”— —. . . , *f,*» .. . . Jhvidently therciorc, lie di« not mean *heirs*m its technical sense, the representatives of a dead man, but heirs apparent, to wit, issue, children. And we think the same construction must be put on the words, “heirs of the body of *Fanny Ann*Until.” In the first place, we Lave a specimen of the testator’s meaning of the words,. and unless controlled by other words, the same words should have the same meaning j and especially, when used by the same person in the same instrument, on thesamesufc-ject matter. The words are ‘ ‘ proceeding from the body 5” which word *proceeding,*is future, contingent, not past — ■ which *have*proceeded. It looks forward to the having of *other*children. Another reason might be given, if necessary. The testator mentions his daughter, *Fanny Jinn,*many times. Ho never declares whether she is living or dead. He mentions his daughter *Elizabeth,*hut once. He then calls her his “deceased daughter.’? Í have avoided touching on the doctrine of the case of *Stith v. Barnes,*(1 *Law. Rep.*484.) We are therefore of opinion, that in each case, the words hdirs of the body mean children, or rather issue. The next question is, do these words take in after born children *;*or is it confined to those born at the making of the will, or the tes* *317tator’s death. We think it embraces all. And we rely on the word *jyroceeding*as sufficient, independently of all other reasons. We are aware that in the conveyance of a mere legal estate, the estate cannot open and shut, as it is called. For the estate must pay to the grantee at first, br not at all. I speak of immediate freehold interests. It is otherwise as to a use or a trust. These may-cease in one person in whole or in part, and arise in another. Ami if it be a use, a sufficient *scintilla*of seisin remains in the trustee, to be converted into a seisin to feed the new use. And it is the same in wills. But here there is not only a will, but a trustee also for the heirs, as well those born as those to be horn. This is said as to the lands.- As to the personal estate, the inconvenience of permitting it, is here avoided. For the legatees in trust are not entitled to the control of the property, or to call for an immediate conveyance on account of these ulterior trusts ; so that there is no danger of its being wasted or eloigned, to defeat the ulterior *cestuis que trust..*And we can therefore see no reason, why the personal estate also, should not open upon the birth of a child, and let it in to the benefit of the trust. And if there was no trustee appointed by the will, the court, to effectuate these intents, would declare the heir and executor trustees for that purpose.

The next question is, what property is subject to the cross remainders ? From the will we are bound to say *all the properly taken under ii.*These arc the testator’s words; and there is nothing in the will to control them, or-vary the meaning, only tiie expression *“*not adverting to what has heretofore been given.” This can control them so far only, as to exclude all property, which the will states, either expressly or impliedly, to have been heretofore received. For as to that, the testator has made the will more confirmatory than legatory. But we cannot travel out of the will to ascertain what he intends to confirm as a gift or *qziasi*gift, and what he in-, tends as a legacy *de*novo, entirely under the will.

[ His Honor then proceeded to specify what property was subject to the cross remainders, and came to the con* *318elusion, that all the property which had not been given by the testator to his children before the date of the will, was thus subject — including in this exception, property which had been given to *r'Hliiam II. Bullock,*and *Fanny Jinn limit,*but which was by the will devised to the plaintiff in trust for their several children.]

Accounts rc-becometestameu-tary and may bo nono?thntiSta-tot’s intention,

The Executor has asked the advice and assistance of the court, in regard to the property subject to the cross remainders. He must take bonds from the legatees with ample sureties payable to himself, that the property shall be forthcoming, in case it shall be necessary, to perform the'ulterior trusts of the testator’s will.

Upon the subject of accountability for the receipts and advancements to equalize the distribution, upon what the testator calls the first division of his estate, wo are left somewhat in the dark. But after much consideration, we think that nothing received under the will, except the *$ 4,000 to John Bullock,*anil a part of the legacy given to him in trust for the heirs of *Fanny Jinn Hunt,*are to be accounted for. The testator’s will, as to what is equality, is the sole law. He can by his declaration so far as respects this question, make that equal which is in fact unequal. In giving the other legacies, he says nothing about inequality, but whenever he speaks of those two, he speaks of equality and drawbacks, and directs that they shall bo accounted for upon the division. It appears also, that the testator had something else in view when he speaks of equalizing the other legatees, master reports, that lie had kept accounts against i,is children. It must bo that he refers to those accounts, when he says, these two legatees are in advance of the -others. Had not the testator by referring to his books, made them in some degree testamentary, *wg*could not possibly travel out of the will to ascertain his meaning. In making the division, the executor will not consider the legacies given in the will, except as above mentioned, as creating the inequality to be made up upon the division. But he will be governed by the master’s report on the subject, as to the advancements made to the different children *}*and will make that the basis on which *319to found the equality directed by the testator, except as to the legacy to himself of g 4,000, which he will take into the account as so much advanced him, together with interest thereon from the time he received it. He will also take into account the monies paid hy the testator for the land devised to him, in trust for the heirs of *Fanny Jinn Hunt,*together with all his testator’s liabilities for *John Hunt,*deducting therefrom the bond which his testator gave to *John Hunt,*all which appears upon the master’s report. The executor will strike a fair balance, and make what is due from *John Hunt*the basis of equalizing the legacy to the heirs of *Fanny Jinn*upon the division. In striking the balance, the executor will include what he, as executor, has yet to pay on account of his testator’s suretyship for *John Hunt,*as wel] as what he has paid.

The Clerk and Master having reported, that *William H. Bullock*and *John Hunt*are prudent and discreet persons, and properly qualified to take the management of the property bequeathed to their respective families, the executor is hereby authorized, if bethinks proper, to put the trust property in their hands respectively, for the support of their families and to permit them to expend the whole profits for that purpose, and in the education of their children, the master having reported that they are not more than sufficient for that purpose. But the property is to be under the supervision of the executor, who *may*at his pleasure withdraw it, and *must*do so upon their mismanagement.

As to the application of the trustee to ho permitted to retire from the trusts, we can see no reason why he should, and therefore refuse his application.

We are also of opinion, that the heirs of *William H. Bullock*and the heirs of *Fanny .inn Hunt*form a unit each, and that upon the death of any one of them, the share of the one so dying goes to its heirs and next of kin, and not to the children of the testator.

Per Curiam. — Degree accordingly.

*320At this term the plaintiff" filed a petition verified by affidavit, in which he stated that the defendant *Richard Bullock*had become insolvent and as far as the interest of his infant *cestui que trusts*extended, lie prayed that the legacy of the defendant *Richard*should not bo paid over to him.

The defendants also filed a petition to rehear that part of the former decree which declared that all property which passed under the will was subject to the cross limitations — contending that it only applied to the property.-to be received at the last division. A rehearing was also bad of the former order, refusing to substitute *William II. Bullock*and *John Hunt*as trustees for tlieir children instead of the plaintiff.

*Gaston,*for the defendant.

HehdersoN, Chief-Justice.

We are satisfied with our former opinion, as to what part of the testator’s property is subject to the limitations in cross remainder; the words of the will arc too strong and point too plainly to what shall be received under the will as distinguished from that which had been heretofore received. The first, meaning that which the legatees had not possessed before but claimed entirely under the *will;*the latter, that which helmd before the making of his wdll possessed them of, and confirmed to them by the will. We went as far as we could in declaring that the property put into the bands of *William H. Bullock*and *Fanny Jinn Hunt,*and by the will given to *John Bullock*in trust for tlieir respective Children, to be property not received under the will in the meaning of the *testator;*substituting the trustee to their prior possessions, and their children to them.

We think that wc erred in directing the executor not to pay or deliver over the property subject to the cross limitations in remainder j for the testator has prescribed no conditions, and we think we cannot so do unless for some cause which wo think would have determined the testator himself to provide the means hy which his ulterior legatees should not be disappointed. In such a case we think it would be our duty to interfere, for we should *321then speak what we presume the testator would himself say were he capable of speaking, or would hare provided for had he foreseen the necessity. It is going very far then to take care of a remote contingent interest, to the prejudice of the near and immediate objects of the testator’s bounty, for it almost necessarily reduces the legacy to its interests or profits only. However, where there is a cause for it, as insolvency or the like, we think that we are bound to interfere, and *John Bullock,*the executor, as guardian and next friend to *James Bullock,*and trustee for the children of *William 11. Bullock*and *Fanny Ann Hunt,*having by his petition, verified by affidavit presented at this term, stated that *Richard*one of the legatees is insolvent to a very large amount, and praying that the said *Richard*should bo restrained and enjoined from demanding any part of said legacy in cross remainder so far as those for whom he acts are concerned, we think that until the petition be disposed of, that the prayer of the petition should be granted and the benefit of it be extendéd to all, for if *Richard*be insolvent it should affect all those who may claim.

In remote limitations of personal estate the first taker is not to secure the forth coming of the property to answer the ulterior' limitations unless ho be insolvent.

¥c therefore direct, that until bond and satisfactory surety be given by *Richard*for the forthcoming of the property as before mentioned, or until this court shall otherwise direct, the executor shall not pay said legacy or any part thereof to said *Richard,*and that the said *Richard*be restrained and enjoined from demanding and suing for said legacy.

In the former decree it was erroneously directed that the plaintiff should be charged with interest on the four thousand dollar legacy, from the time he received it. The court reverses so much of that decree and now declares that the same is payable out of the funds of *Norwood*and . *Bullock*from the first money received therefrom after the payment of the debts of the firm. The legatee is and was entitled to receive the same out of the first money collected from said firm, after paying the debts thereof and that he is not chargeable with interest thereon, but if the fund is sufficient, he is entitled to interest thereon from one year after the testator’s death until he recover the amount.

*322The petition of *William H. Bullock*and *John Sunt*praying to be substituted for *John Bullock*as trustee for their children respectively, is continued for further con-' sideration.

Per Curiam» — Decree accord in gxy.