#### JAMES GARRISON *and another, executors, against*POLLY ANN EBORN *and another.*

"Where a testator, having a wife and two daughters, directed in his will that certain slaves, and other property, should be divided “ between his wife and children,” and in a subsequent clause directs that, in case of the death of one of his daughters “ *leaving no heir of her body,*then, and in that case, it may go to my remaining child or children,” one of the daughters having died in the life-time of the testator, it was *Held*that her share went to her sister, and that the widow took but one-third.

Where it is provided in a will, that the widow should take of certain articles as much *as she wanted, it*was *Held*that she was vested with unlimited discretion as to the quantity she might take, even to the amount of the whole of the articles mentioned.

The Act of Assembly in relation to the time when a will “ shall speak and take effect,” applies only to the property named in it, and not to the legatees.

Cause transmitted from the Court of Equity of Beaufort county.

The bill was filed by the plaintiffs, as the executors of Samuel 0. Eborn, suggesting that there are conflicting claims arising out of the several provisions of the, will of the said Samuel 0. Eborn, and praying that the legatees may be ordered to interplead, so that these different interpretations and assertions of claim may be considered and determined ;by a *229decree of this Court. The following are the material clauses of the will, out of which these questions arise:

“Item 1st. My will and desire is, that all my real estate, of every name and character, may be sold within one or two-years after my death, at the discretion of ray executors hereinafter named, upon a credit of from one to five years, taking notes with approved security, with interest from day of sale1; and the fund arising from the sale of my real estate, together with all the funds, (money and notes,) which I have on hand, as well as all such as may come into the hands of my executors, I desire to be equally divided between my wife and children, share and share alike.

*“*Item 2nd. My will and desire is, that all my negroes may be equally divided between my -wife and children, and in case of the death of one of my children leaving no lawful issue of her body, then, and in that case, it is my will and desire, that it may go to my remaining child or children, as the case may be. And in case of the death of all my children, leaving no lawful issue of their bodies, then, and in such case, í leave them all to my wife during her life-time, with power to convey, at her death, one half of all my negroes, which I own, to such persons as she may think proper, and the other half I desire to be equally -divided between my two brothers, William and Eobert, and my sister Mary Elizabeth Davidson, and the funds mentioned in item 1st, I desire to be disposed of in like manner as the slaves mentioned in this item 2nd.

“ Item 3rd. I loan to my wife as much of the house-hold and kitchen furniture, also as much of the corn and fodder, pork and bacon, as she may want; also as many of the horses and mules, also as many of the riding vehicles and carts, together with as many harness of eacli as she may desire, and as much as she .does not want, I desire to be sold.”

At the date of this will the testator had a wife, the defendant Polly Ann, and two children, Cora, who died afterwards in his life-time, and the other defendant, Elizabeth.

The plaintiffs state, in their bill, that they have sold the land in obedience to the directions of the will, and have the slaves in *230their possession; that they have allowed the widow, Polly Ann, to make choice of such house-hold and kitchen furniture, mules, vehicles and harness, and of as much pork, bacon, com and fodder, as she desired, and have filed a list of the same, with their values.

They state also, in their bill, that on the part of Polly Ann, it is contended that, by a proper interpretation of the will, under the circumstances that have happened, she is entitled to one half of the proceeds of the sales of the land, and one half of the slaves, also to all the furniture, &c., which she has chosen.

That on the part of Elizabeth, it is contended that her mother, Polly Ann, is entitled to only one-third part of the proceeds of the sales of the land, and the like projwrtion of the slaves; that she is not entitled to take as much of the furniture as she pleases, but that a reasonable quantity must be set off to her, and that the amount taken by her (although not all of any one kind) is excessive and unreasonable.

Answers were filed by both of the defendants, asserting their views, and insisting upon the several interpretations as attributed to them in the plaintiffs’ bill, and each asking the Court to decree in her behalf accordingly.

The cause was set down for hearing upon the bill, answers and exhibit, and sent to this Court.

Rodman, for the plaintiffs and for defendant Elizabeth.

Donnell, for the defendant Polly Ann.

Battle, J.

"We are of opinion that the testator’s widow had the right to take all the articles of the kind mentioned in the 3rd item of his will. The testator makes no restriction upon her “ want” or “ desire,” and this Court has no right to do so ; but as she has made a choice of a part only of the articles designated, she must be content therewith.

Under the 2nd item of the will, the widow claims one half of the negroes, upon the ground, that at the time of his death the testator had but one child, and the direction is that the *231negroes shall be equally divided between his “ wife and children.” Had the testator added nothing else, the widow’s claim might have been difficult to resist, because the children are spoken of as a class, and the death of one in the testator’s life-time would have left the survivors or survivor to answer the description. But at the time when he made his will, he had two children, one of whom died afterwards in his life-time, and he has provided for that event, by saying, that “ in case of the death of one of my children, leaving no lawful issue of her body, then, and in that case,” her share shall go to the remaining child or children. By using the feminine pronoun “ her,” the testator recognises that all the children he then had were females, but as he might have more, he makes the limitation over to them, not as a daughter or daughters, but as children. The death of one of his daughters being spoken of as a contingent event, it must necessarily be so in reference to some other event, and as no other is mentioned, the death of the testator must be taken as that event. The daughter having died before the testator, the will gives her share to her surviving sister, to the exclusion of her mother. See the case of *Vass*v. *Freeman,*decided at the present term, (ante 221,) where the subj ect of the period to which the survi vorship shall be referred is fully discussed. The late act which declares that *“*every will shall be construed, with reference to the real and personal estate comprised therein, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will,” cannot aid the claim of the widow, because it applies only to the property named in it, and not to the legatees.

The fund to be raised from the sale of land, the collection of notes, &c., which the first item requires to be divided equally between the testator’s wife and children, share and share alike, is, by the 2nd item, “ to be disposed of in like manner as the slaves mentioned in this item.” By this, we understand that it is to be subject to the same limitations and restrictions, and of course, in the event, which has occurred, of the *232death of one of the daughters in the testator’s life-time, her share will go to her surviving sister. „

The articles mentioned in the 3rd item, not taken by the •widow, were directed to be sold, but the proceeds arising’ therefrom, are not disposed of, unless they can be construed to form a part of the fund bequeathed in the first item. "Whether it is so included or not, it is unnecessary to decide, for if it be a lapsed legacy it will be divided in the same manner as the other property; that is, the law will give to the widow one-third, and the remaining two-thirds to the child.

A decree may he drawn in accordance with this opinion, and the executors will pay the costs of the suit'out.-of the estate in their hands.

Pee Curiam, Decree accordingly.