#### ROBERT CHESNUTT *and wife against*POLLY MEARES *and others.*

A limitation of slaves or other chattels in a bequest, or a conveyance in trust, to a mother and her children, while she has children, will, as a general rule, make her and her children take as tenants in common; but if the primary-object of the testator or grantor appear to have been to provide for the mother, and that object would be defeated by such construction, then she shall take the whole property for life, with the remainder to her children.

Cause removed from tlie Court of Equity of Columbus county.

This was a petition for the partition of slaves amongst the plaintiffs and defendants, upon the allegation, that they were tenants in common. The question arises on the construction of the following deed, made by Joab Meares, to wit: “Know all men by these presents, that I, Joab Meares, of the State of North Carolina, and county of Columbus, for and in consideration of the sum of live dollars to me in hand paid, the receipt whereof I do hereby acknowledge, before the enseal-ing and delivery of these presents, the payment being made by Philip Coleman, trustee of my wife Polly Meares, and for the further consideration of love and affection for my said wife Polly, as well as for her better maintenance and support, have bargained and sold and delivered unto the said Philip Coleman, in trust for my said wife Polly, the following ne-groes, viz: Mourning, a negro woman, and her children, namely, Arthur, Reddick, Stephen, Amy, a negro woman, and her child Willis; and I, the said Joab Meares, by virtue of these premises and for the purposes before expressed, do bargain, sell, and deliver the said negroes, unto the said Philip Coleman, intrusted as aforesaid, and do hereby agree for myself, my heirs and assigns, subject to the annexed proviso, to warrant and forever defend the said slaves unto the said Philip Coleman and his heirs forever, for the said Polly Meares and and her children which she has, or may have, by me, the said Joab Meares; the conveyance and warranty as aforesaid, subject to the following restrictions : that the said trustee, nor none who sitcceeds him, ever dispossess my said wife Polly *417and my children which I have, or may have, by her, of the said property, and shall suffer her to enjoy, together with the children, the benefit, nse and profits of the said negroes forever. In witness whereof I have hereunto set my hand and seal, this 10th day of February, 1819.”

The slaves conveyed in this deed and their increase, amounting in all to the number of fifteen, are still held by the defendant Polly Meares. The bill is filed by Robert Ohesnnt and his wife Elizabeth, who is one of the children of the said Joab, by his wife Polly, against Mrs. Meares and the rest of the children, alleging the death of Joab Meares, and that they are all tenants in common of these slaves, and praying for a division, and for an account of hires and profits.

The defendants, in their answer, say that they are advised, according to a proper construction of the deed above recited, that Polly Meares is entitled to an estate for life in the slaves in question, and that the plaintiff Elizabeth, and the other children of Joab Meares, are entitled as tenants in common to the reversion of these slaves after the death of the said Polly, and that they now have no right to a division.

The cause was set down for hearing upon the bill and answer, and sent to this Court by consent.

*Troy,*for the plaintiffs.

*/Strange*and *Shepherd,*for the defendants.

Battle, J.

The right of the petitioners to a partition of the slaves in question, depends upon the construction of the instrument executed on 10th of February, 1819, by Joab Meares to Philip Coleman, as trustee for his wife and children. The instrument is not very formal in its structure, nor altogether technical in its language, yet, we think, there is not much difficulty in ascertaining its true intent and meaning. The primary object of the grantor was to provide for his wife. The love and affection which he bore to her, and the desire to provide the better for her support and maintenance, are recited as the consideration for the conveyance, and accord*418ingly the trust is first declared and then repeated for her alone. The children are not mentioned at all until the clause of warranty is reached, and then for the first time a *proviso*is inserted, by which the trust is said to be for the wife and children which she then had or might thereafter have by the grantor; and then another clause is added, by which the trustee is prohibited from ever taking the slaves from the possession of the wife and children.

If this limitation had been contained in a will, wTe think there could be no doubt it would be construed to give the wife an estate for life in the slaves, with a remainder to all her children as a class. See *Crawford*v. Trotter, 4 Madd. 362; *Morse*v. Morse, 2 Simons, 485. It would embrace all which were bom to her during the life of the husband, or within a competent time after her death. The strongly expressed obj ect of the testator to provide a support and maintenance for her, would make it an exception to the general rule, and would thus prevent a construction, which, by making the children tenants in common with her, would enable them, when they came of age, to demand a partition, and thus leave their mother destitute in her old age. Eor the general rule, see *Moore*v. *Leach, 5*Jones’ Rep. 88. A like construction, for the same reason, is inadmissible in the case now before us, which is the limitation of a trust. The analogy between an executory bequest, and the limitation of a trust, has been long and well established, and we must apply the same rule of construction to the latter, which it would be our duty to do to the former.

The consequence is, that the petitioners having only an estate in remainder as tenants in common with their children, have no right to demand a partition wdth the tenant for life, and their petition, for that purpose, must be dismissed with costs.

Pee CueiaM, Petition dismissed.