#### SUSANNAH J. E AMIS & AL. *vs.*LEWIS AMIS, EX’R. & AL.

Tlio act of 1829 (lies. *Slat. ch.*85, *sec.*18,) for the partition of slaves or other personal chattels applies only to a plain legal tenancy in common, and not at all to a suit against an executor for negroes, as parts of a legacy to two or more persons in common.

Ill this latter case the rights of the claimants cannot be ascertained, until the administration has been closed, or all the accounts have been taken ; and the executor is proceeded against in his character of a trustee for the legatees.

The Court will not entertain suits for the separate parcels, which constitute the mass or residue of an estate ; but, in order to avoid an unnecessary multitude of suits, requires that the suit should be so brought, as to take all the accounts and distribute the whole estate by the decrees that may ho made therein.

Appeal from the Superior Court of Law of Granville County, at the Spring Term, 1817, his Honor Judge Manly presiding.

*220, • Joseph Amis by his will, dated July 20th, 1840, directed all his estate to be kept together under the control of his executors, and gave them discretionary power to soli any part of his real or personal property, as they might think most advantageous for his wife and children. There are '■then these clauses in the will. “ I direct that my children remain with my wife, to be raised and educated out of my estate, and, as one may become of age or marry, to have allotted to such child as much of my estate as I have given my daughter Betsey and put her in possession of. If my wife should die my widow, I direct at her death, that my estate of every description be > equally divided between all my children, considering In the distribution the part which each child may have received at marriage or full age ; and if my wife should marry, in that event I direct that all my property be divided between her and all my children, at the same time taking into consideration what has been given off to such as have become of age or married. In educating my children, I direct that my son Lewis be continued at College until he graduates; and, should the income of my estate justify, I wish my other two sons James and Joseph to receive a like education ; otherwise, the best education the income of my estate will afford. I wish all my *daughters to receive*a good English education ; and, should the income of my estate fall short of giving them a good practical English education, I wish them to receive one, even at the expense of the capital of my estate.” The testator appointed his wife executrix, and his son Lewis and his son-in-law Lewis Amis, then the husband of the daughter Betsey, the executors of the will. At the death of the testator in August 1840, he left seven children surviving him; namely, the married daughter Betsey, Ann S., Lewis, 'Mary, Jane, James and Judy. After qualifying as an executor, Lewis Amis, the son-in-law, died, and also his wife Betsy ; but which died first, docs not appear. They left three infant children, who together with the testator’s daughter Ann S» Amis, are the plaintiffs in this suit', *221■which was instituted in November 1846, by petition in the Court of law against Lewis Amis, the son, as surviving executor of the will, and the other children of the testator. It states that the testator’s widow had then recently died, and that thereby the period for dividing-the estate had arrived r That the advancement to the daughter Betsey was of the value of $1300; and that the daughters Mary and Ann S., and the son Lewis had upon coming of age received advancements to that value respectively ; and that the daughters Jane and Judy F», and the said Jardes Amis, were each entitled then to receive property to an equal value, and then that the residue of the estate was divisible equally amongst the children of the testator or their representatives; and that in such division the three infant plaintiffs, who are the children of Betsey Amis, represent their deceased mother and are entitled to her share : That the estate of the testator-consisted, amongst other things, of twenty-seven slaves, who are named ; and that the parties plaintiffs, and defendants, are entitled to them as tenants in common, in the several shares before stated : And the prayer is, that the said negroes may be divided accordingly, and the shares of the several claimants allotted in severalty.

The answers admit the allegations of the petition. But they state that the two defendants, James A. and Judy F. .are still infants and that their educations have not been completed, and insist that the expense thereof should be defrayed out of the income of the whole estate before any division, or that a sufficiency for that purpose should be set apart and retained by the executor. The executor also states, that, after deducting his disbursements hitherto and certain other debts of the testator, there remains in his hands in cash and good debts the sum of $1178; which he says is not sufficient to discharge his commissions, and an annuity of $50, which the testator granted to one Downey for life, and to defray the expenses of attending to certain claims on persons residing in Mississippi and *222Texas: And he insists *on being*allowed *to*retain out of the negroes as many as will form an adequate fund for those purposes.

Upon the hearing, the Court declared amongst other things, that, according to the proper construction of the will, the expenses of the education of the infant defendants, James A. and Judy F. were in the first instance to be defrayed out of the income of the testator’s estate, but that those persons were, nevertheless, in the event that had happened, to be charged therewith as parts of their sharps in the division of the estate: And declared farther, that the executor ought to retain as much of the estate, including a part of the negroes, if necessary, as would meet those expenses, and *would*discharge from time to time the annuity to Downey and cover all proper expenses attending the collection of the claims in the South, and completing the administration of the estate ; and, subject thereto, that the residue of the slaves ought to be divided, as claimed in the petition, allotting one share of them to the plaintiffs, who are the children of Mrs. Betsey Amis, deceased, as representing their mother. The decree then referred it to the Master to enquire into the value of the advancement to the daughter Betsey, and of those made to any others of the testator’s children, since his death, upon their coming of age or marrying, and to enquire also what part of the estate it would be proper the executor should retain for the purposes aforesaid ; and then directed the Master, after setting apart a proper fund therefor, to allot to each of the children, who had not been advanced, a portion of the negroes equal in value *to*that of the advancement by the testator to his daughter Betsey, and then to divide all the residue of the slaves equally between the parties, according to their rights as before declared: and all further directions were reserved until the coming in of the report. From that decree an appeal was allowed to the defendants.

*223*Lanier,*for the plaintiffs.

*Badger, E. G. Reade,*and *Gilliam,*for the defendants.

Ruffin, C. J.

The proceedings in this case do not authorise the Court to decide the' questions,' raised ancl decided in the Superior Court. The petition seems to have been drawn upon the idea, that it Would lie under the act of 1S29 for the partition of slaves or other personal chattels; and the decree, we suppose, proceeded upon the same notion. But that act applies only to a plain legal tenancy in common',' and not at all to a suit against an executor for negroes, as parts of a legacy to’ two or more persons in common. In this latter case the rights of the claimants cannot be ascertained until the administration has been closed, or all the accounts have been taken ; and the executor is proceeded against in his' character of a trustee for the legatees: The Véry decree in this case shews, that it was impossible to treat the parties, as tenants in common merelyfor it became necessary to direct enquiries into the entire estate and as' to advancements to the children respectively, beforeeither of the parties Could claim any thing.

But if this could be looked at as a petition in the Courts' of law for legacies- and portions, as- given by the Statute,' instead of the suit in the Court of Equity, the plaintiffs cannot be relieved on it, because the sole prayer and' object of the plaintiffs’ is for an account of the slaves,' belonging to the testator’s estate, and for a division of them. The slaves are not given specifically, or separately from the other parts of the estate;' but the children become entitled to-them5 under the general gift of the testator’s “ estate of every description, to be' equally divided among his children” at the death of his widow1. Now, the Court does not entertain suits for the separate parcels,' which constitutes the mass or residue of this estate ; but, in order to avoid, an unnecessary multitude of suits, requires that the suit shall be so brought, as to'take all'the *224accounts and distribute the whole estate by the decrees, that may be made therein.

Besides, there is another objection to the parties. The administrator of the testator’s daughter Betsey is not be. fore the Court,, and her infant children .are improperly made parties, as representing her. The act of 181C, *Rev. Stcit. ch. 122, sec. 15,*has no application here. That vests the estate, given by the will of a parent to a child, who-dies in the life time of the parent, in the issue of such child so dying. But here the daughter Betsey survived her father, and the legacy rested in her, and survived to her administrator or executor, and not to her children. Indeed it may be that her husband survived her, in which case her administrator would hold in trust for the husband’s representative, and not for the wife’s children.

For all these reasons it was erroneous to pronounce the interlocutory decree given in the Superior Court, and this opinion will be certified to that Court, that the decree may be reversed, and other proceedings had in the cause according to right and justice.

The plaintiffs must pa.y the costs in this Court.

Per Curiam. Ordered to be certified accordingly.