#### *James N. Badger*vs. *Robert Harden and Delia Ann, his wife.*

Bequest as follows: “ I do loan unto my daughter, D. A., during her natural life,” certain slaves, “ and their increase: and at hor death, I do give and bequeath said slaves and their increase, unto the lawful issue of her body, should she leave any, forever; and in the event of her decease without issue, I then, and in that case, loan said slaves and their increase unto R. H.,” (her husband,) “during his natural life, and at his death, I do give and bequeath said slaves and their increase, unto my nephew, J. N., and his lawful children, *foreverHeld,*that the limitation over to J. N. was valid, and contingent only upon the death of D. A., without leaving issue.

*Before*Wardlaw, Ch., *at Barnwell, February,*1853.

The whole case is stated in the decree of his Honor, the Circuit Chancellor, which is as follows:

Wardlaw, Ch. The object of this bill is to obtain bond from the life-tenants for the forthcoming of certain slaves at the termination of the life estate, to secure the^enjoyment by the remainder-man.

Nathaniel Badger died in 1842, leaving of force his will, dated February 7,1842, whereby he provided, among other things, as follows : *“*I do loan unto my daughter, Delia Ann Harden, during her natural life, the following named slaves,” (naming-sixteen,) “ and their increase; and at the death of my said daughter, I do give and bequeath the said slaves and their increase, unto the lawful issue of her body, should she leave any, forever; and in the event of the said daughter’s decease without issue, I then, and in that case, loan the said slaves and their increase unto Robert Harden, during his natural life, and at his death I do give and bequeath the said slaves and their increase, unto my nephew, James N. Badger, and his lawful children, forever.”

Upon the death of testator, Robert Harden, who was appointed executor, assumed the execution of the will by making probate thereof, paying the debts of testator, and taking possession for himself and wife aforesaid. The defendants are without children. Lately the defendant, Robert Harden, has incurred *148some liability as surety, has sold ■ his plantation in this State, and threatened to remove with the said negroes to Georgia. °

The defendants, in their answer, admit the will and probate, and the sale of the plantation, and some expression of purpose to remove beyond the limits of the State, which, however, they say, was jesting, and not according to their real design ; but they contest the plaintiff’s rights under the will, and insist that their estate is absolute.

The first and principal question in the case is, whether the claim of the plaintiff is valid within the rule against perpetuities. It may be observed that the testator gives an estate *for life*expressly to his daughter, and to her husband, if he should survive her, and employs the terms “ loan” and “ lend,” to designate the gifts for life, and “give” and “.bequeath” to designate the contingent absolute interests to the issue of his daughter and the plaintiff. The limitation over in the first instance, is to the issue of the daughter “ at her death,” if “ she should leave any,” necessarily importing that the issue, if they took at all, must take within the prescribed limit of lives in being, and twenty-one years afterwards. *Buist*vs. *Dawes; Forth*vs. Chapman, 1 P. Wm., 663.

Then *the gift to the*daughter’s husband is, “in the event of my said daughter’s decease, without issue, then, and in that case, to Robert Harden during his natural lifein which the term issue is manifestly employed, according to the prior use of the word as issue left at her death. *Dehay*vs. *Porcher,*1 Rich. Eq. 270. And this is confirmed by the gift over to him being for life. Fearne 488; 2 Jarm. Wills 363; 3 Mylne & Or. 127. Finally, the gift over to plaintiff is to take effect contingently “ at the death” of the husband — at the termination of a life in being. *Buist*vs. *Dawes.*I am of opinion that the limitation contingently made to the plaintiff by this will, is not liable to the objection made of remoteness. Whether it will take effect may possibly depend on the double contingency of Robert Harden surviving his wife, and her death without leaving issue ; but I suppose that the plaintiff’s rights are contingent only upon the death of *149Delia Ann Harden without leaving issue, and the opposite view was not taken at the hearing.

The remaining question in the case as to the sufficiency of the plaintiff’s apprehension of. hazard to his rights from the conduct and declarations of the defendants, is settled by the admissions of the answer. The defendants admit preparation to remove beyond the jurisdiction, and threats of removal, which however jestingly intended, must conclude them, especially as they contest the plaintiff’s rights.

It is ordered and decreed, that the defendant, Robert Harden, give bond to the Commissioner of this Court in double the value of the slaves mentioned in defendant’s' Exhibit A, conditioned that said slaves, with the increase of the female slaves, shall be forthcoming at the termination of the life estate of the survivor of defendants, to be delivered to the plaintiff or his representatives, if the defendant, Delia Ann Harden, should not leave issue alive at her death. It is'further ordered, that defendant, Robert Harden, pay the costs.

The defendants appealed, and now moved this Court to set aside the decree on the grounds:

1. Because they respectfully submit that His Honor erred in deciding that the limitations in the Will of Nathaniel Badger were not too remote.

*2.*Because it is respectfully submitted that His Honor erred in deciding that the plaintiff’s rights were contingent only upon the death of Delia Ann Harden, without leaving issue.

*Say,*Bailey, for appellants.

*A. P.*& *J T.*Aldrich, contra.

*Per Curiam.*

This Court concur in the judgment of the Circuit Court, and the appeal is dismissed.

Dunkxn, Dargan and Warjdlaw, CC., concurring.

Johnston, Ch., absent at the hearing.

*Appeal dismissed.*