#### Isaac H. Strong *vs.*Samuel J. N. Strong, Ex’or of Robert Strong.

Testator after specific bequests of negroes to Ms nine cMldren, all of whom except the eldest son were under age, and some of whom were helpless infants, and a devise of a tract of land to his eldest son, directed the rest of his lands to be divided among, his other four sons, and the remainder of his personal estate (which included twenty-seven negroes besides other personalty) “ to remain on the plantation until the youngest child arrives at the age of twenty-one years, then to be equally divided between eight of his children” (naming them). He further directed “that his plantation be kept up as in his lifetime by his executors,” and that “his executors should not be accountable to his children for anything made by the negroes on the *plantation:”*— Held, that the executor, who delivered to a son when he arrived at age the negroes specifically bequeathed to him, was not bound to account to him for their hire before he arrived at age.

BEFORE DUNKIN', OH., AT WILLIAMSBURG, MARCH, 1854.

Robert Strong died September 19th, 1845. Pie left nine children, all of whom were minors except his eldest son, the defendant — the youngest being a helpless infant. The plaintiff was at that time about thirteen years of age. His last will and testament bore date, August 27th, 1845, and is as follows: “ First, I will and bequeath to my son Samuel J. N. Strong, four negroes, viz.: Lize, Nancy, Becky, Harvy, and the future increase of the females. I will and bequeath, I also give and bequeath, to my son, Samuel J. N. Strong, seven hundred and eighty acres of land, known by the name of the McKey tract. I give and bequeath to my son, Robert P. Strong, four negroes, viz.: Ben, Mettz, Candis and Minder, and the future increase of the females. I will and bequeath to my son, Thomas J. Strong, four negroes, viz.: Rebecca, little Sophey, Daniel and Rinter, with the future increase of the females. I give and bequeath to my son, Isaac H. Strong, three negroes, viz.: *118Sarah, London and Eliza. I give and bequeath to my son, John C. Strong, three negroes, viz.: Hannah, Titus and Susannah. I give and bequeath to my daughter, Mary M. S. Strong, three negroes, viz.: Rachel, Cyrus and Robert. I give and bequeath to my daughter, Margaret M. 0. Strong, three negroes, viz. : Anney, Jim and Phillis. I will and bequeath to my daughter, Eleanor J. Strong, three negroes, viz.: Eleanor, Rhodus and Hetty. I give and bequeath to my daughter, Susan A. ICnox, four negroes, viz.: Yellow Sophey and her daughter Hannah, Adam and Jane; and it is my will that the four named negroes which I have bequeathed to my daughter, Susan A. Knox, be her portion in full of my estate, both real and personal; and it is my will that if either of my children should die before they marry, their portion above named, shall be equally divided among my then surviving children, Susan A. Knox to have no part of the said property. It is my will that my children have the future increase of the property above named to each of them. And it is my will that all my land not hereinbefore named to my son Samuel J. N. Strong, be equally divided between my four sons, Robert P. Strong, Thomas J. Strong, Isaac H. Strong and John C. Strong, share and share alike. Should either of my four sons, Robert P. Strong, Thomas J. Strong, Isaac H. Strong and John C. Strong, die before they marry or arrive at the age of twenty-one, their portion of the land to be equally divided between the survivors; and if one or more of my four sons above named die before they marry or come of age, their portion or portions of land to go to the survivor or survivors. It is my will and desire that my daughters have no share of my land: and it is my will and desire that *all*the rest, *residue*and *remainder*of *my personal*estate, goods and chattels, of what kind and nature soever, to remain on the plantation until the youngest child arrives at the age of twenty-one years, then to be equally divided between my eight children, Samuel J. N. Strong, Robert P. Strong, Thomas J. Strong, Isaac H. Strong, *119John C. Strong, Mary M. S. Strong, Margaret M. 0. Strong and Eleanor J. Strong. Should either of my eight children before named die, leaving lawful issue before my youngest child comes of age, their issue to have their portion. It is my will that the plantation be kept up as in my lifetime by my executors. It is my will and desire that my executors are not to be accountable to the children for anything made by the negroes on the plantation. Lastly, I hereby appoint my sons, Samuel J. N. Strong and Robert P. Strong, executors to this my last will and testament, hereby revoking all former wills by me made.”

The plaintiff, alleging in his bill that he arrived at age in April, 1853, that for three years previous thereto, he had lived from home and boarded and supported himself, and that the negroes, Sarah, London and Eliza, specifically bequeathed to him, were not delivered to him, but were kept on the plantation, until he arrived at age, prayed that the defendant, Samuel J. N. Strong, executor of said will, might account to plaintiff for the hire of said negroes, and also pay him the value of his board and support for the three years he had boarded and supported himself.

The defendant in his answer stated that the residuary personal estate of the testator, consisted, besides mules, horses, cattle, furniture, plantation tools, &c., of twenty-seven negroes; that he delivered to the plaintiff his specific legacy of negroes in January, 1853 ; and that until some time in the year 1852, the plaintiff was supported from the proceeds of the plantation, which was kept up as the will directed. And “ this defendant, further answering, says that he cannot adopt the construction to the said will by the said complainant in his said bill. He submits that the said last will and testament was made by the said testator upon his death-bed and not many days before he died; that most of his children being young and helpless, it was his intention that they should be maintained and educated out of the estate which he left them. He knew that as *120each child arrived at tbe age of twenty-one years or married, sucb child may desire to move off, and enter into business, and for this purpose he devised certain negroes to each child respectively, evidently intending that as each child came of age or married, he or she may take the negroes devised, with their increase, in order that they may not be without means to support themselves during the time that must necessarily intervene between their arrival to the age of twenty-one and the time when the youngest child of the testator shall arrive to that age. This defendant cannot admit that the said testator intended or contemplated a withdrawal of any of the negroes from the plantation in any other manner or at any other time, except as each child came to the age of twenty-one years,'to which period he unquestionably intended that the delivery, by the executors, of the negroes bequeathed to each child should be postponed; for he enjoined upon his executors that his plantation should be kept up as in his lifetime, desiring that by this means his children who were to live together may derive a common benefit from the joint working of all the negroes, as well those bequeathed to each child respectively as those constituting the residue of the estate. This defendant submits that this construction of the will of the said testator has governed him in the whole management of the said estate, inasmuch as he has conceived that he was carrying out fully the intention of the said testator thereby. He charges that the expenses of the negroes bequeathed to each child respectively, such as medical attention and other expenses, were paid out of the common fund arising from the labor of all the negroes, as well those bequeathed to each child as those constituting the residue of said estate. This defendant insists that any other construction of the will would give to this defendant and his co-executor the use of the residue until the youngest child of the testator shall arrive to the age of twenty-one years, for the very words of the will are as follows : “ It is my will and desire that my executors are not to be accountable to the children for anything *121made bj the negroes on the plantation;” and the said testator had no other source of revenue except what was made bj the negroes on the plantation; and this defendant submits that if any interpretation at all be given to the said words, it cannot be any other than such as would carry the income arising from the work and labor of the negroes constituting the residue of the said estate to this defendant and his co-executor during the minority of the youngest child of the said testator. This defendant further answering, says, that inasmuch as no time had been appointed by the testator for the delivery of the negroes mentioned in each bequest, and as his family was not only large, but consisted principally of young children, and the residue of the negro property not sufficient to support, maintain and educate them without the work and labor of the said slaves bequeathed to each of them respectively, he is naturally forced to the conclusion that he has adopted the construction of the will of his testator most consistent with reason, and at the same time most liberal for such of the children of the said testator as were at his death, and even those who still are, under the age of twenty-one years, and cannot look upon the construction of the said will, as given by the complainant, in any other light than as entirely erroneous and unreasonable. This defendant further says, that if he be in error as to the meaning of the said testator in thus construing the said last will and testament, he would'respectfully submit the question involved to the consideration of the Court, and pray that the same may be considered and a proper construction be had in the decree to be pronounced in this cause, and a correct interpretation given to the meaning of the said testator. This defendant, further answering, says that several of the specific legacies contained in the said will, contained, if set apart to the legatees at the time of the death of the said testator, would be expensive to them instead of being profitable, inasmuch as the same consisted of women and small children, and unprofitable as workers, and that it would be difficult to find persons *122willing to hire such negroes, and that the hire thereof would not pay for feeding and clothing, much less being able to support the legatees,” &c.

His Honor, the presiding Chancellor, decreed as follows:

DuskiN, Oh. This cause was heard on the pleadings. The object of the bill is, *first,*to obtain from the defendant an account of the hire of three negroes specifically bequeathed to the plaintiff; and *secondly,*for the value of the board of the plaintiff, while, as he alleges, he supported himself. The bill states that the plaintiff attained his majority in April, 1853. The answer avers that the plaintiff was supported until some time in 1852, and that on the 1st day of January, 1853, rather before he became of age, his negroes were delivered to him.

The Court is satisfied with the construction of the testator’s will adopted by the executor, and for the reasons stated in his answer.

It is ordered and decreed that the bill be dismissed, but that the costs be paid out of the assets of the estate of the testator in the hands of the defendant.

The complainant appealed, and now moved this Court to reverse the decree, on the ground that the executor is accountable for the hire of the negroes from the death of testator.

*JRieh, Miller,*for appellant.

*Dargan,*contra.

The opinion of the Court was delivered by

Johnston, Ch.

It appears to me, that the construction of the will adopted by the Chancellor, is well sustained by its terms, and recognized principles of interpretation.

*123It is true that specific devises or legacies, made without condition, are not to be abridged by the context of the will, nor by subsequent clauses, when these are doubtful, or can be reconciled with them. But, it is equally true that the construction is to be made from the whole instrument: and, in the case of wills, when there is a conflict between prior and subsequent clauses, so that the latter cannot be executed without infringing on the former, the latter must prevail.

In this case the testator, in the first part of his will apportions specifically among his children by name, thirty-one slaves, and devises a tract of seven hundred and eighty acres of land to his son Samuel: and then declares that “ it is my will that *all my land, not hereinbefore named to my son Samuel,*be equally divided between my four sons, share and share alike.” It is very clear that if there were nothing further in the will, the legatees and devisees of these negroes and lands would have been entitled to the immediate possession of the property.

But when the testator subsequently directs that “ all the rest,” &e., “ of .my personal estate, goods and chattels,” “ remain on the plantation until the youngest child arrives at the age of twenty-one,” and be then divided; and “that the plantation be kept up, as in my lifetime, by my executors,” “the executors not to be accountable to the children for anything made, by the negroes, on the plantation it is pretty clear that he has said enough to disturb the right of immediate enjoyment arising to the specific legatees and devisees under the prior parts of the will.

The property is to be kept on the plantation, and the plantation is to be kept up as it was in his lifetime. But all the land had been devised away, and if the devisees were to take immediate possession of it, how could the property be kept on it, and the plantation kept up as the testator had kept it ?

There are several other minor parts of the context which might be observed upon, all tending to the construction adopted *124by the Chancellor: but it seems unnecessary to comment on them.

It is ordered that the decree be affirmed, and the appeal dismissed.

DuNKiN and DaRGAN, CC., concurred.

*Decree affirmed.*