#### WILLIAM K. LANE *against*JANE BENNETT *and others.*

Slaves were bequeathed by name to the testator’s widow, but after the testator’s death they were- recovered from the executor by a decree of the court of *391equity as having been mortgaged, to him. It was *Held*that the legatee was entitled to the money paid for the redemption of the slaves, but that the legatee had no claim to have her legacy made good in any other way.

Slaves directed by will to be emancipated, and which were hired out by the executor for the convenience of the estate, are entitled to these hires, and also to the surplus of a sum of money set apart for then- removal from the ' State.

A. sum of money arising from the redemption of a slave held in mortgage, (which slave was directed to be freed, but was not,) does not pass into a fund directed to be raised by the sale of certain negroes and *dll the balance*of the testator’s property; nor does money directed to be expended in the removal of a slave who could not be liberated pass into such fund.

Cause removed from the Court of Equity of "Wayne county.

Earnifold Jernigan, by will properly executed and proved, bequeathed as follows : “ Item 1st. I give and bequeath to my beloved wife, Jane Jernigan, the following named negro slaves, together with all their increase at the time of my death, ■viz: Lynn, &c., (enumerating thirteen slaves, and' amongst them Bill Winn, John Winn, Simpson and Anne.”)

-x- -x- -x- * -x- -x-

“ Item 3rd. It is my will and desire that my executors, hereinafter named, hold in trust for my daughter, Mary Anne Kelly, the following negro slaves, together with their increase at the time of my death, viz.: Edmund, &c.,” (enumerating eight others, and amongst them the slave “Olive;”) “ and after the death of my said daughter, Mary Anne Kelly, it is my desire that the said negro slaves, and their increase, be divided equally between the children of the said Mary Anne Kelly, to them and their heirs forever.”

-x- * * * -x- *

“ Item 5th. It is my will and desire that my negroes, Dave, Tom, Morris, Lila and Mary, be liberated, and that my executors, hereinafter named, send them to a free State, and I hereby set apart out of the sale of my property, hereinafter named to be sold, the sum of five hundred dollars, to defray the expenses of so removing them.”

“Item 6 th. It is my will and desire that the following negro slaves be sold by my executors, viz.: Martin, &c.,” (enumerating *392ten,) “ with all the balance of my property not herein given away, and out of the proceeds of such sale, they first set apart the five hundred dollars named in the 5th item of this will, and that out of the balance remaining, they pay all my just debts, and after that, if there be a balance remaining, my will and desire is that it be equally divided among my children, to be held on the same conditions as the specific legacies are, named in this will.”

John A. Green and William K. Lane, were named executors in the said will, of whom the latter only qualified, and took upon himself the burden of executing the several provisions thereof.

The bill is filed by the executor praying the Court to instruct him as to the following points upon which he thinks there are difficulties and doubts as to the proper construction to be put on the provisions above set forth.

Previously to the filing of this bill, and before the payment of the legacies, a suit was brought against the executor by one Adam Winn, for the recovery of the slaves John Winn, Bill Winn, Simpson and Anne, bequeathed as above set out, to the widow Jane, and of Olive bequeathed to the executor in trust for Mrs. Kelly and her children, and of Dave directed to be liberated, upon the allegation that the said slaves had been mortgaged to plaintiff’s testator to secure the payment of certain sums of money loaned to the said Adam by the testator, and a decree was passed in the said Court of Equity ordering and adj udging that, upon the payment of certain sums therein named, which were ascertained to be the amount loaned, with interest thereon, the defendant should reconvey the slaves above mentioned to the said Adam; which sums were accordingly paid, and the slaves conveyed to him accordingly.

The executor hired out the slaves, Tom, Lila, &c., directed to be liberated, and has the sum thus produced in hand.

The widow of Earnifold Jernigan, intermarried with Thomas Bennett, who died during the pendency of this suit, and before any part of her legacy had been paid by the executor. The *393first instruction prayed by the executor is as to the legacy bequeathed to the widow; whether site is entitled to it, or whether it goes to the representative of her second husband, JBennett; and is she entitled to compensation as to the slaves bequeathed to her, which were redeemed and thus taken from her ? And the same question is propounded as to the slave bequeathed to the trustee of Mrs. Kelly, which was also redeemed and taken from her. lie enquires as to the proper disposition of the sums raised by the hires of the slaves directed by the testator to be liberated.

It appeared that of a part of the sum of five hundred dollars set apart for the removal of the liberated slaves, -was unex-pended and remained in the hands of the executor after that trust was performed, and after deducting $100 on account of Dave; the executor asks the Court to instruct him as to the disposition of this balance. The executor states that the proportion of the five hundred dollars which would have been required for the removal of Dave, would have been one hundred dollars ; and he enquires as to the proper disposition of that sum. lie likewise enquires what disposition he shall make of the money paid for the redemption of Dave. Whether these two last mentioned sums fall into the residue and go to the persons named in the residuary clause, (the children,) or whether they are undisposed of, and are to be paid out according to the statute of distributions (under which the widow would bo entitled to come in.)

In behalf of Mrs. Bennett, the widow, it was contended in her answer that she is entitled to the full value of the slaves bequeathed to her, but which were lost to her by being redeemed; but, if this wras not allowed her, that she is entitled to the money paid for the redemption of these slaves. And the like claims wore set up in behalf of Mrs. Kelly and her children, on account of the redemption of the slave Olive.

The other legatees answered, but their answers do not vary the statement above made.

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

*394Rodman, for the plaintiff.

*Dortch*and *Wm. A. Wright,*for the defendants.

Battle, J.

The first question presented is, whether the testator’s widow, who is now the wife of the defendant Thos. Bennett, is entitled to any, and, if any, what interest in the legacy of the slaves bequeathed to her by the will, and which have been since redeemed as a mortgage by the mortgagor. The defendants, Bennett and wife, claim the full value of the slaves from the executor, but if that be not allowed, they claim the amount paid for their redemption. The question is new, and the counsel for the defendants says he has been unable to find any decision upon it. We think, however, that, upon principle, there can be no difficulty in it. Whatever interest the husband liad in the slaves, we think passed to his widow under the will, and we can see no reason why she should get more, to the disappointment of the other legatees. For the same reason, the trustee of Mary A. Kelly, is entitled to claim, for her. use, the money paid for the redemption of the slave given to her. The slave Dave ¡loses, of course, his freedom iutended for him, and no question is made about the amount paid to redeem him.

2. The slaves who have been emancipated under the directions of the will, aré clearly entitled, each, to his or her hire from the death of the testator. They had a right to their freedom from that time, and arc not to be prejudiced by the delay of the executor in effecting their emancipation. They are also entitled to the residue of the five hundred dollars appropriated by the testator for removing them out of the State, after deducting one hundred dollars as the share intended for Dave, who loses his freedom because of his having been redeemed by the mortgagor.

The residue of the proceeds of the slaves directed to be sold, is clearly a partial residue, (see *McCorkle*v. Sherrill, 6 Ire. Eq. 173, *Pippin v.*Ellison, 13 Ire. Rep. 61, *Lowe*v. *Carter,*2 Jones’ Eq. Rep. 377,) and does not embrace the money paid for the redemption of Dave, nor the one hundred dollars in*395tended b,y the testator to defray the expense of his removal from the State, had he been set free. The amount of these two sums are, therefore, undisposed of by the will, and must be distributed equally among his widow and children, who are his next of kin. Let a decree be drawn declaring the rights of the parties according to this opinion, and let an account be taken, if the parties desire it. The costs must be paid out of the estate.

Per CuriaM, Decree accordingly.