#### JAMES FREEMAN, *Executor, against*ALSON OKEY *and others.*

Where a testator, by Ms will, gave slaves to Ms wife for her life, and then to the heirs of his two daughters who were then living, the assent of the executor to the legacy of the taker for life, vested the title of the property in the children of the daughters, who were living at the death of the tenant for life.

Where a testator bequeathed slaves to one for life, with an absolute power of disposition, without any residuary clause, and the first taker failed to exercise *474such power, it was *Held*that there was an intestacy as to such property.

Where a testator charged his estate with the support of one for life, and provided no fund out of which the support is to be furnished, it was *Held,*that property undisposed of by the will, must, in the first place, be applied to that purpose.

Cause removed from the Court of Equity of Guilford county.

This was a question of construction, arising upon the will of John Cathe}*-, which is as follows : “I give and bequeath to my beloved wife, Margaret, all my landed estate during her natural life-time or widowhood, by her giving unto my daughter Eliza Ragsdale, and her children, the privilege of living on the Sullivan tract, and furnishing her with a reasonable support for her and her children off of said Sullivan tract, while she may continue to live thereon. Also, to my wife, Margaret, the following negroes, during her life or widowhood, at the expiration of either, to dispose of as she pleases: Andy, Harriet, Thomas and Jacob. Edy and Neely, I give and bequeath unto my daughter Lavinia Freeman. I give and bequeath to my wife, also, Burton, Peter, Ailsey and Lucinda, during her life or widowhood ; after her death or marriage, Burton, Ailsey and Lucinda I bequeath unto the heirs of Eliza Ragsdale, viz., Joseph and John, and if she should have any more children, the above named negroes is to be equally divided amongst the whole. As to my landed estate at my wife’s death or marriage, I give and bequeath one half of it to the heirs of Lavinia Freeman, to be equally divided as to the value, and the other half to the heirs of Eliza Ragsdale, to be equally divided amongst them. I also give and bequeath unto my wife, all my stock of horses, cattle, hogs and sheep, wagons, carriages and farming tools, all the growing crop, all the stock of provisions that’s on hand; also, all the household and kitchen furniture in like manner as the aforesaid property; and also I give and bequeath unto my daughter Eliza Ragsdale, five dollars in cash.” To which was added this codicil: “I do not allow any of my property to go to pay Sanford Ragsdale’s debts in any way; and after *475my wife’s death, I give Eliza Ragsdale as long as she lives, she and Lavinia, her support.”

The bill is filed by James Freeman, the surviving executor, alleging that the executrix appointed with him, in the above will, is dead, and prays the advice and direction of the Court as to the proper construction to be put on it in the several particulars following: He states that the said Margaret, after paying off the debts and charges against the estate, possessed herself of the land and slaves and other property devised and bequeathed to her, and died in the possession of the most of it, without having disposed of any part of the property by will, or otherwise; that Sandford Ragsdale, the husband of the legatee Eliza, is also dead, and that she has intermarried with the defendant Alson Okejn He asks the Court to instruct him, 1st, what is the intention of the testator in respect of the bequest of the horses, cattle, &c., which, after the death of his wife, he directs to go “in like manner as the aforesaid property,” and whether or not it means that it must be divided amongst the children of his daughters, in the same manner as lie had directed a division of his lands. "Whether the possession of the property by the tenant for life amounted to an assent to the children of the daughters, who were to take in remainder, and whether all these children who were living at the death of the tenant for life came in for a share, and if they all take, by what mode the same is to be divided between them.

As to the slaves Andy, Harriet, Thomas and Jacob, that he gave to his widow for her life or widowhood, with the power of disposing of them to whom she pleased, as the tenant for life made no disposition of them, the executor asks to be instructed whether they constitute a part of the widow’s estate, or whether they revert to the estate of his testator; andif the latter, what disposition he shall make of them.

As to the direction contained in the codicil to this will for the testator’s two daughters, Eliza and Lavinia, to have a support, he inquires how such support is to be supplied to them’, and out of what estate, and whether he can let them have the *476slaves left for, and to, the disposition of the widow, and whether such support is to their sole and separate use, independently of the control of their husbands.

The daughter Eliza and her husband Obey, her other daughter, Lavinia Freeman, the wife of the plaintiff, and their several children, are made defendants, whose answers do not vary the above statement.

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

*Diak*and Fowls, for the plaintiffs.

Miller, for the defendants.

Battle, J.

The clause in the testator’s will, in which he gives to his wife, all his stock of horses, cattle, hogs, &c., immediately follows that in which he devised all “his landed estate,” after the death of his wife, one half to the heirs of his daughter Eliza Ragsdale, and the other half to the heirs of his other daughter, Lavinia Freeman ; and it is connected with it by the expression, “I also give,” &c. When, therefore, he says, in another part of the clause, that he gives “ the stock of horses, cattle, hogs,” &c., “ in like manner as the aforesaid property,” he must mean that, after the death of his wife, it was to be divided between the heirs (or children) of his daughters, in the same manner as he had directed a division of his lands.

As the executor had assented to the legacy to the widow for life, the legal title vested in the children of the two daughters, who were living at the death of the tenant for life, and a division among them may be made, either specifically or by means of a sale, as the parties or their guardians may desire.

According to the principle recognised as law in the case of *Newland*v. *Newland,*1 Jones’ Rep. 463, we think the wife of the testator took only an estate for life, with an absolute power of disposition, in the slaves Andy, Harriet, Thomas and ‘Jacob, and as she died without exercising her power, and as the will has no residuary clause, the testator died intestate as *477to the reversionary interest in them, and they now form a part of his estate. In the case to which we have referred, we quote an extract from 4 Rent’s Commentaries, pp. 35 and 386, to the following effect: “ If an estate be given to a person, generally or indefinitely, with a power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case, the express limitation for life will control the operation of the power and prevent it from enlarging the estate to a fee.” We then add, “ these rules are laid down after an elaborate review of the English and American authorities, in some of which it was said, that there was, in this respect, no distinction between real and personal estate, and we have no doubt of their correctness.” The bequest in the j>resent case is in express terms to the wife for life, with an absolute power of disposition, which confines the interest which the wife took in the slaves, to a life estate, and leaves them still a part of her husband’s estate, as she died without exercising her power.

By his codicil, the testator gives expressly to each of his two daughters, after the death of his wife, a support for life. This is a charge upon his estate, and must be raised, in the first place, out of the slaves left undisposed of by the will. It is suggested in the answers of the daughters, that *those*slaves will be sufficient for the purpose, and they claim that those slaves shall be divided between them, and that, as they are married women, the share of each be secured to her sole and separate use. Erom the nature of the charge, it must be for the sole and separate use of the daughters; but before the Court can make a final decree in relation thereto, there must be a reference to the clerk, or to some other person, as a commissioner, to ascertain and report the amount necessary to be paid to each of the daughters annually, for her support during life, and the cause will bo retained for further direction.

Per Cueiam, Decree accordingly.