#### Samuel C. Scott, adm’r., *vs.*Francis Burt, et al.

A bequest for life, expressly, with a general power of disposition super-added, confers only a life estate with power of appointment, which to, be effectual must be exercised.

BEFORE WARDLAW, OH., AT EDGEFIELD, AUGUST, 1857.

The will of Elizabeth Scott bore date the 28th October, 1831, and was admitted to probate the 6th February, 1832. The disposing clauses are as follows:

“1st. As regards such worldly goods as it has pleased Almighty God to bless me with, it is my will and desire that it should be distributed in the following manner, viz: I give to my mother, Mary Burt, during her natural life, my tract of land known by the Scott’s Eerry tract and one negro girl Jane, and at her death the said land to be divided between my brothers Samuel 0. Scott and John Scott’s children, viz: to my brother John Scott’s two sons, William T. Scott and John Scott, Jr., one half, and my brother Samuel 0. Scott’s son, Oliver P. Scott, the other half.

“ 2nd. I will and bequeath to my three half brothers, Frank, Henry, and Armstead Burt, one hundred dollars each.

“3rd. I will and bequeath to my three nephews above named, viz: William T. Scott and John Scott, sons of my brother, John Scott, and Oliver P. Scott, son of my brother Samuel 0. Scott, all the residue of my estate of every description whatever, to be divided between them as above directed, viz: to John Scott’s two children one half, and to Samuel 0. Scott’s son the other half.

*359“ 4th. I do hereby appoint my brother, Samuel 0. Scott, executor of this my last will, investing him with full power and authority to execute the same,'revoking and.making null and void all other wills by me made, ratifying and confirming this as my only last and true will.

“ hi. B. The negro girl Jane, which I will my mother above, is for her to will and dispose of as she thinks proper.”

Mary Burt was, at the date of the will, the wife of Armstead Burt, Sen., and so continued until the year 1839, when he died. She survived until 1857, and then died having made no disposition, by will or otherwise, of Jane and her issue. The bill claimed that upon the death of Mary Burt, Jane and her issue became the property of the residuary legatees of Elizabeth Scott; and the defendant contended that Mary Burt took an absolute estate in Jane upon which the marital rights of her husband had attached.

The circuit decree of his Honor, the presiding Chancellor, is as follows:

’WARDLAW, Ch. The leading question in this case is, whether Mrs. Mary Burt, under the will of her daughter, Elizabeth Scott, took an absolute estate in the slave Jane, or only an estate for life with a power of disposition annexed.

The slave Jane since the death of Elizabeth Scott, has given birth to five children whose names appear in the pleadings. After the filing of the bill, to wit, on the 11th of February, 1857, the said slaves were sold by the defendant, Francis Burt, on a credit until the 25th December next, with interest from the day of sale, for the aggregate sum of five thousand six hundred and fifteen dollars. The parties claiming adversely to the defendant, Francis Burt, are not dissatisfied at the prices for which the slaves were sold, and are content *360if their claim prevail to have the proceeds of the sale of the slaves in lieu of the slaves themselves.

The distinction is completely established between a gift to a person indefinitely with a general power of disposition, and a gift for life with like power superadded; in the former case an absolute estate passes to the donee, in the latter an estate for life only, with a power of appointment, which to be effectual must be exercised. Such is undoubtedly the general doctrine. *Bradley*vs. Wescott, 13 Yesey, 453 ; 1 Sug. Powers, 119, 128; *Pulleam*vs. *Byrd,*2 Strob. Eq. 141; *Reith*vs. *Seymour,*4 Russell, 263 ; *Archebold*vs. Wright, 9 Sim. 161. Words of implication do not merge or destroy an express estate for life unless it becomes absolutely necessary to uphold some manifest general intent — 4 Kent’s Com. 319, and authorities there cited. ■)

In my judgment Mrs. Mary Burt, under the will of Elizabeth Scott, took an estate for life only in the slaves, Jane and her issue, with a mere power of disposition superadded, and she having died without any exercise of such power, those slaves thereupon passed under the third clause of the said will to the residuary legatees, the defendants, William T. Scott, and Oliver P. Scott, and the plaintiff, Samuel 0. Scott, as the legal representative of John Scott, Jr., deceased.

And it is further ordered that the defendant Erancis Burt deliver and pay to the plaintiff, Samuel 0. Scott, administrator, and to the defendant, William T. Scott, *each*the one fourth part, and to the defendant, Oliver P. Scott, the residue of the securities representing the proceeds of the said sale of the slaves Jane and her children above referred to, if such securities shall be acceptable to them respectively, and if not, then that the defendant, Erancis Burt, immedately after the 25th day of December next pay to the plaintiff, Samuel 0. Scott, administrator, as aforesaid, and to the defendant, William T. Scott, each the one fourth part, and to the defendant, Oliver P. Scott, the residue of the said sum of five thousand six *361hundred and fifteen dollars, with interest from and after that date, and that the parties to whom the proceeds of said sale are directed to be paid, have leave to sue out the necessary final process against the defendant, Francis Burt, to compel such payment.

The defendant, Francis Burt, appealed, and now moved this Court to reverse the circuit decree on the grounds:

1. Because his Honor erred in decreeing that lürs. Mary Burt, under the will of Elizabeth Scott, her daughter, took an estate for life only in the slave Jane and her issue, with a mere power of disposition superadded.

2. Because his Honor should have decreed that Mary Burt took under said will an absolute estate in the slave Jane and her issue, and she, Mary Burt, being a married woman, (at the death of Elizabeth Scott,) her husband’s marital rights attached thereon, and the said property passed under his will to this defendant as his executor.

Bellinger, for appellant.

Carroll, contra.

Pee Cueiam.

This Court concurs in the decree of the circuit Court. The appeal is dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*