#### William Blackledge, executor of the last will of Benjamin Blackledge, dec. *v*. Thomas Singleton and others.

F Craven.

Difference between ancient and modern decisions, as to legacies void either by reason of the *uncertainty*of the legatee, or of the *inability*of the legatee to take. Both are founded upon the supposed intention of the testator : but the ancient decisions say, the testator intended to pass only that which was left after taking- out the legacies, and that the executor or next of kin take the lapsed legacies; and the modern say, that the testator intended his residuary legatees should take all that does not pass under the will, no matter from what cause there may be a residue. Neither of them, however, say that a legatee can take without, or contrary to, an intent. Therefore,

■Where a testator bequeathed to his nieces, “ the residue of his property *“*not disposed of, except his negro woman Jenny,” and in a codicil to his will, directed “ that his negro woman Milly be left precisely as his “ negro woman Jenny was left in bis will,” and Milly had a child after the death of the testator, this child belongs to the next of kin, and not to the residuary legatees.

if an executor act with good faith in asking- advice of the Court of Equity^ the costs shall be paid out of the estate of his testator.

This was an application to the Court of Equity, by the Complainant, lor directions how to distribute a certain portion of the estate of his testator. The bill charged that the testator had bequeathed certain negro slaves to his wife, and to Benjamin Blacldedge Hanks “ one-third of *£{*his negroes not otherwise disposed of *?’*and to Richard B. Singleton and Thomas Singleton, “ the remaining two- “ thirds of his negroes not otherwise disposed of, except *u*his negro woman Jenny, left him by his fatherand to his nieces, Polly Blackledge, Ann B. Hatch, and Martha Singleton, *“*the residue of his property not disposed of, *ss*except the negro woman Jenny, as before excepted.”

And in a subsequent clause of the will, he *“*recommend- “ ed his negro woman Jenny, as excepted in a former <e clause, to the particular care of his brother William (the *“*Complainant,) and requested that he would not remove *598
      *“*her from the plantation where she lived, unless by her “ consent, and in case she should, by old age or infirmi- *“*ties, need support, that it he drawn from the hire of cer-*‘6*tain negroes,” which he directed to be hired out for a particular time.

In a codicil to the will, the testator directed “ that his *“*negro woman Milly be left with, and precisely as his *ee*negro woman Jenny was left in his will.”

After the death of the testator, the negro woman Milly had a child named Squire, and the Complainant prayed the advice of the Court, to whom this child belonged, and how and in what manner he should dispose of him. Uncharged that Squire was claimed by Benjamin B. Hanks, Richard B. Singleton and Thomas Singleton, under the bequest to them, *“*of the negroes of the testator not other- “ wise disposed of, except the negro woman Jenny j” and was also claimed by the nieces, Polly Blackledge, Anne R. Hatch and Martha Singleton, under the bequest *“*of “ all the residue of testator’s property, not disposed of, *“*except the negro woman Jenny.” Complainant also charged that Squire was claimed by the next of kin generally, of the testator, as a residuum not disposed of by the *will;*and he submitted whether he himself ivas not entitled to Squire, as the increase of that which, by the will, was given to him. The case was sent to this Court, and

Henderson, Judge,

delivered the opinion of the Court:

I think this short answer may be given to the claims of Benjamin Blackledge, Richard B. Singleton and Thomas Singleton, that Milly, the mother of Squire, being excepted from their bequests, they can have no claim to any of her issue born after the testator’s death; and to the claim of William Blackledge, that the testator intended him no beneficiary interest in Milly; at most he is only a naked trustee. And as for his claim to Squire for the support of the two negro women, the testator has pointed *599out another fund for that purpose. The only contest is between the residuary legatees and the next of kin.

To ascertain in whom the right of Squire is, it is necessary to fix the condition of his mother. *Partus sequitur ventrem.*William Blackledge’s claim has already been disposed of: if he has any interest, it is as a mere trustee for the residuary legatees or the next of kin. In favor of the claim of the residuary legatees, it is said that they must take *all,*after satisfying the claims under the will, and that this claim extends to legacies lapsed by the death of the legatees before that of the testator. As to cases ■where a legacy is void by reason of the uncertainty of the legatee, or of the inability of the legatee to take, there is a difference between the ancient and modern decisions on some points,- but it may be admitted that the modern are *correct;*for they are bottomed upon that universal principle in our law, that in the construction of wills, the intent is to be sought for, and, when not contradictory to law, is to be followed. The modern decisions say, that the testator intended his residuary legatees should take'all that does not pass under his will, no matter from what cause there may be a residue: the ancient say that he only intended to pass what was left after taking out the legacies, and that the executors, or the next of kin, take the lapsed legacies: both making it a question of intention. But no case goes so far as to make a legatee take without, or contrary to, an intent.

In this case, Milly is expressly excepted out of the residuary clause, and, of course, cannot pass under it. Milly, therefore, not being disposed of to any one by the will, but if to any one, to a naked trustee, Squire, her issue, belongs to the next of kin.

As we believe that the executor acted with good faith, in asking the advice of the Court, his costs must be paid out of the proceeds of the .sale of Squire.