#### GILES MEBANE, EX’R., *against*THOMAS WOMACK AND WIFE AND OTHERS.

Where property is given by will to a mother for life, then to her children, and on failure of children to others, with a provision that it shall be valued, and the value deducted from a share left to her by the same will in the division óf a general fund, it appearing to be the intention of the testator to make the families of his several children equal, the value of the fee simple in the land, and the entire estate in the personal property must be charged against the mother in the general divison.

Where there is a limitation over of personal property, by will, after the death of a legatee for life, and such legatee dies before the testator, *Held*that the ulterior bequest must take effect, although the estate of the first legatee never vested.

Where children are named in a will specifically, they cannot take as a class, and therefore, the legacy of one so named, who dies before the testator, lapses, and the rest of the children cannot take it

Cause removed from tbe Court of Equity of Caswell County.

*294Mrs. Anne Taney died in Caswell county in the year •-, having made and published her last will and testament, of which the following is a copy of the material part^,:

“ 2. I give and bequeath to my grand-daughter Prances Ann McAden, the following slaves, to wit, Grandison and Ned, Alexander and Emeline, Anne and Dolly; these slaves I bequeath to her for life, with remainder to her children, if she should have any ; if not, then to her brothers; and in this bequest I mean to include any increase which may hereafter arise from the above named slaves.

3. I give and bequeath to my grand-daughter Betsy Ann Mebane, daughter of Giles Mebane, a negro girl by the name of Harriet, together with her future increase, forher life only, and after death, to her children, should she have any, and in-default of children, then to her brothers and sisters.

4; I give and bequeath to my daughter Anne Elizabeth Taney, the tract of land on which I now reside, lying on the main road leading from Tancyville to Greensboro’, supposed to contain between five and six hundred acres, including the piece which I purchased recently from John A. Graves, to have the same during her life only, and after her death, I give it to her children, if she should have any, and in default of children, then to my grand-daughter Prances Ann McAden. J direct that the said land shall be received by my said daughter at valuation, the value to be ascertained by three competent |>ersons to be chosen by my said daughter and my executor; but in ascertaining the value, my will is that the buildings, that is, the dwelling house and necessary out-houses, shall not be included. * * * I also give to my daughter Ann Elizabeth, two negroes, Oscar and Susan, to be taken by her at valua-tioir, the value to be ascertained as herein directed in regard to the land given to her; and the said negroes and their fu-future increase to be held for and during her life only, with remainder to her children if she should have any, and on failure of children, then to Prances Ann McAden during her life, and upon her dying without children, then to her brothers and sisters. *****

*2956. Raying heretofore placed in the possession of my deceased son,. A. S. Yancy, a negro1 boy by tbe name of Iverson, I do hereby give him to the surviving daughter of my deceased son, Ann E. Yancy, at the value or price of $300, to have the said negro for her life only, and if she dies without children, then to be equally divided among my own children and grandchildren ; the grand-children in said division to represent, or to stand in place of, their parents. To my daughter Mary Mebane, I give a negro girl Keziah, valued by me at $250; to ■my daughter Ann Elizabeth, a girl by the name of Lettice, of the same value; and to my executor, for the separate use of Virginia B. Swepson, a girl by the name of Malinda, of the same Value; and whatever increase may have arisen from the said slaves since they were placed in the possession of my daughters above named, I give and dispose of as I have given and disposed of the parents of such children, or increase, and without any additional charge or valuation for such increase; and I hereby direct the property bequeathed in this clause, to be held by the tenure and upon the limitations hereinafter specified in the residuary clause of this will.

*“*All the rest and residue of my property and estate, I will and direct to be equally divided into five equal shares, or portions, and allotted to my children and grand-children, as follows : one-fifth part to my daughter Mary Catharine, £he wife of Giles Meban'e, for and during her natural life ; and after her death, to her children. One other fifth part to my executor, in trust for the sole and separate use of my daughter Virginia B. 'Swepson, during her life ; and after her death, to her children, if she should have any; and on her failure to have children, then to my own children and grand-children; the said grandchildren to represent in the division their deceased parents-, and take only such share as they would have taken if living. One other fifth part to my daughter Ann Elizabeth, for her natural life only; and after her death, to her children, if she shall have any; and on failure of children, then to my own children and grand-children, as above directed. One other fifth part to the child of my deceased son, Algernon S. Yancy, *296namely, Ann E. Yancy, for her natural life only; and after her death, then, to her children; and on failure to have children, then to my own children as above directed; and the remaining fifth part, I give to the children of my deceased daughter Prances McAden, namely, Bartlett Y. McAden, Bufus McAden, John Henry McAden and Prances Ann McAden, to be equally divided between them. . My will is that, in the division of the residuum of my estate as above directed, the property specifi'eally bequeathed herein shall all be valued and accounted for, except the negro slaves given to my two grand-daughters Betsy Ann Mebane and Frances Ann McAden ; and when the division is made, my daughter Ann Elizabeth may exercise her own will, and take her share in property, or its value in money, as she may think best. . * -K- *X* '/V *X‘

“ My will and desire is, that the valuation of the residue of my estate be made by five competent persons, to be chosen by my executor with the approval of my children ; and that the valuation and division so made by my executor and the five persons aforesaid be returned to, and recorded in, Court. I direct that my executor shall at all times be subject to the control of my daughter Virginia, in regard to the property he may hold in trust for her; that her order to him for any share of it, at any time, shall be full and sufficient authority to him to dispose of it according to such order ; and that her individual receipt be sufficient evidence for him as to any sum or sums he may pay to her, or dispose of for her benefit.

(A) “ In the fourth clause of my will, I have bequeathed to Prances Ann McAden, the remainder in the slaves Oscar and Susan, after the death of my daughter Ann Elizabeth; now, my will is that, in the division of the residue of my estate, the.'value of their interests given in the slaves, as aforesaid, to the said Prances Ann, be ascertained by the five persons above specified, and that my said grand-daughter shall account for the same 'at the valuation aforesaid, as a part of her share of the residuum. During the life of Giles Mebane, the husband of my daughter Mary Catharine Mebane, I will and direct that *297the property herein given and bequeathed to his wife, shall he held by him in trust to manage and improve the same for the sole and separate benefit of his wife and children, and in no event shall he have power or authority to dispose of the same without the consent of his wife, to be rendered in writing, and to be attested by at least one credible witness. I appoint my son-in-law, the said Giles Mebane, executor of this my last will and testament, hereby revoking all others, &c.”

The bill is filed by the executor, stating that, in consequence of conflicting claims among the several legatees, he finds difficulties in the way of carrying the provisions of the above will into effect, and prays the advice and direction of the Court upon the following questions, viz :

One arises on the 2nd clause of the will. The legatee therein named, Frances Ann McAden, who was an infant about twelve years old, died after the execution of the will, but in the lifetime of the testator, and the question is, whether the limitation to her brothers Bartlett Y. McAden, John H. McAden and Rufus McAden, is effective to pass the interest in these six slaves to them, or does the legacy lapse and fall into the residuum of the estate ?

Another question grows out of the 4th clause, viz., whether in making a valuation of the land, the life-estate of Ann E. (now Mrs. Womack) should only be estimated, or whether the value of the whole fee shall be charged against her in the division of the *residuum.*

The same question arises upon this clause, as to the slaves given to Mrs. Womack for life, and in the several other instances where life-estates only are given in slaves and other property.

The same question particularly arises in respect of Oscar and Susan, who are given by the 4th clause to Ann E. for her life only, with a contingency to her children, and on failure of children, then over to Frances A. McAden, and who are directed in the clause marked (A) to be valued against the said Frances Ann.

Another difficulty' arises upon the distribution of the re*298siduum.: whether the share of Prances Ann McAden lapsed by her death in the life-time of the testator, and therefore, to be deducted from *fifth*going to the McAden children, or do they take a full fifth without such abatement?

The executor states that Ann E. Taney, the only daughter of Algernon S. Taney, is an infant, residing with her mother in the State of Tennessee, and the legatees having a contingent interest in the property, have given him. notice not to deliver it to her guardian, to be taken beyond the limits of the State, and although he thinks it is a question with which he has nothing to do, yet, he says, he is unwilling to act in the matter, until the parties settle the question between them.

Ann E. Taney, after the death of the testator, intermarried with Thomas Womack, and he, together with Yirginia, (inter-mai-ried with George W. Swepson), Bartlett T. McAden, Rufus McAden and John II. McAden, children of the deceased daughter, Frances McAden, Ann E. Taney, only child of Al-gernon S. Taney, and Mary Catharine Mebane, wife of the executor, are made defendants.

The several defendants (except Mrs. Mebane) answered the bill, admitting the facts alleged, and each contending for the construction favoring their interests in the questions above propounded to the Court.

The cause was set down for hearing on the bill, answers and exhibits, and sent to this Court for trial,

*Norwood,*for the executor.

Bailey, for the McAdens.

Morehead, for Swepson and wife.

*Kerr,*for Womack and wife.

Battle, J:

The questions arising upon the construction of the will of Ann Taney, will be considered by us in the order in which they are presented in the pleadings.

1. The first question arises upon the following clause, “I give and bequeath to my grand-daughter, Frances Ann Mc-Aden, the following slaves, to wit, Grandison, &c. These *299slaves I bequeath to ber for life, with remainder to her children, if she should ever have any, if not, then to her brothers, &c.” The legatee having died in the life-time of her grandmother, it is clearly settled hy the cases of *Simmons*v. *Gooding,*5 Ire. Eq. 382, and *Roach*v. *Knight,*Bush. Rep. 103, that the remainder shall take effect in her brothers.

2. The second question is presented upon the fourth clause, which is as follows : “ I give and bequeath to my daughter Ann Elizabeth Yancy, the tract of land on which I now reside, &c., to have the same during her life only; and after her death, I give it to her children, if she have any ; and in default of children, then to my grand-daughter Frances Ann Me Aden. I direct that said land shall be received by my said daughter at valuation; the valuation to he ascertained by three competent persons to be chosen by my said daughter and my executor ; but on estimating- the value, my will is, that the buildings, viz., the dwelling-house and necessary out-houses shall not he included.” The dispute between the parties, whether the valuation of the land, exclusive of the houses, shall be of the fee simple interest, or only of the devisee’s life-estate, must unquestionably be decided in favor of the former. It is a fundamental rule in the construction of a will, that the intent of the testator, to be ascertained by an examination of all its parts, shall prevail, provided it is consistent with the established rules of the law. Here, it is manifest that the testatrix, in the distribution of her property among her living children and the children who had died, intended an equality, or an approximation to it, as between the different families. It is equally clear that she wished to provide for keeping the property in the families, as long as possible, by giving to the living legatees life-estates only, with remainders to their respective children, should they have any. This policy seems to have been departed from, only in the share of the residuum given to the McAden children. The property which is thus given hy the testatrix to one of her children for life, .with remainder to the children of such devisee or legatee, was designed as a full provision for the family of such devisee or *300legatee, and consequently, the valuation to be put upon it for the purposes of the general division among all the families ought to be of the whole estate, that is, the fee simple interest in the land, and the absolute interest in the slaves.

3. The third question, which relates to the valuation of the slaves, was so intimately connected with the second, that we were obliged to consider them together, and the result is already announced.

4, The fourth question is presented by the following clauses : “ I also give and bequeath to my said daughter (Ann Elizabeth) two negroes, namely, Oscar and Susan, tobe taken by her at valuation, &c., to be held for and during her life only, with remainder to her children, if she should have any ; and on failure of children, then to Frances Ann McAden, during her life ; and upon her dying without children, then to her brothers and sisters.” “In the fourth clause of my will I have bequeathed to Frances Ann McAden the remainder in the slaves Oscar and Susan, after the death of my daughter Ann E.; now, my will is, that, in the division of the residue of my estate, the value of the interest given in the slaves aforesaid, to the said Frances Ann, be ascertained by the forms above specified; and that my said grand-daughter shall account for the same at valuation aforesaid as part of her share of the residuum.” The difficulty suggested in these clauses involves two subordinate questions. The first is, whether the latter clause takes away from the children of Ann Elizabeth, the contingent remainder given to them in the former; and we are of opinion that it does not; because the omission to name them is contained in a mere recital of the precedent gift for life to Ann E., and not intended to change the limitation to her children, engraft-ed upon it. The second question is, whether, as Frances Ann died in the life-time of the testatrix, her contingent interest in the said slaves will go to her brothers ; and by reference to the cases cited in the answers to the first principle question, it will be seen that the remainder will be good, whether it be a vested or contingent one. These two subordinate questions being settled, we have no hesitation in saying, *301that while the legatee Ann Elizabeth must account for the slaves in question at the value of the absolute interest in them, for the reasons already given, the McAdon children can be charged in the general division of the residue with the vhlue of their contingent interest only, just as it must have been charged against their sister had she lived. Their only interest in the said slaves is a contingent interest, and that is all which the will requires to be valued.

5. The fifth question relates to the residuary bequest which, after dividing the residue of the estate into five parts, and assigning a part to each of the three living daughters of the testatrix, and' a part to her grand-daughter, Ann E. Yancy, concludes thus : “ and the remaining fifth part I give to the children of my deceased daughter Frances McAden, namely, Bartlett Y. McAden, Bufus McAden, John II. McAden and Frances Ann McAden, to be equally divided between them.” This question presents the enquiry, whether, if one of several legatees of a fund, being brothers and sisters, die in the lifetime of the testatrix, his or her share will lapse and thereby fall into the residuum, or will survive to his or her brothers and sisters. For the latter construction it is contended that the brothers and sisters take as a class, as the children of a deceased parent, and that, therefore, if one die before the testatrix, the survivor will take as representing the class ; and for this the counsel has referred to the case of *Simms*v. *Garrot,*1 Dev. and Bat. Eq. 393. Had the will given the property to the children of Frances McAden, deceased, without naming them, then they could have taken as á class only, and the argument would have been unanswerable ; but by naming them they became legatees individually, and the death of one in the life-time of the testatrix must be attendecj by the usual result of a lapse. Thus, in the case of *Knight*v. Gould, 2 Myl. and Keene’s Rep. 295, it was said by the Lord Chancellor, “ A bequest to children living at the testator’s death, is, on all hands, admitted to be a bequest to the class, and it survives to those who shall answer the description by surviving the testator. Then, why not also a bequest to executors ? But *302itis said, tbe words *1*hereinafter named’ are added, and thatthese words added to a bequest to ‘ children’ would make the description cease to bo that of a class. Assuredly it would, because such words are used for the very purpose of specifying certain of the children, and therefore, they must expressly exclude the supposition of a class being intended, &c.” The consequence is, that the brothers of Prances Ann McAden are entitled to only a fifth part of their deceased sister’s share of the residue.

6. The sixth, and last question, is one which wo cannot answer ; because, upon the present bill, we are not at liberty to give any direction in relation to the slaves bequeathed to the testatrix’s grand-daughter Ann E. Taney. "When her guardian shall attempt to remove her slaves beyond the limits of the State, the other legatees who have a contingent interest in such slaves, may proceed as they may be advised, to have such interest secured to them.

A decree may be drawn in accordance with this opinion, and the executor must pay all the costs out of the assets of the estate in his hands.

Pee CueiaM. Decree accordingly.