#### *Samuel Cordes and others*vs. *Samuel Palmer and others.*

Testatrix, by her will, bequeathed nine negroes by name, to her son T. C., with limitation over in ease of his death without issue. By a codicil which she declared to be a part of her will to all intents and purposes, she revoked and declared void so much of the bequest to T. 0. as related to three of the negroes, naming them, and bequeathed to him three other negroes by name, in lieu of those as to which she had revoked the bequest: Held, that the negroes given to T. C. by the codicil were subject to the limitation declared by the will.

*Before*Wardlaw, Ch., *at*Charleston, *June,*1853.

Wardlaw, Ch. It is submitted to the Court upon the case made by the pleadings, to determine whether, under the terms of the will and codicil of Mrs. Charlotte Cordes, the complainants are entitled to certain negroes, derived by defendant’s testator from Thomas Evans Cordes in his lifetime, and to an account for their hire since the death of the said Thomas Evans Cordes.

The bequest in the will, bearing on this question, reads as follows, to wit: “4th. I give, devise and bequeath to my son, Thomas Evans Cordes, to him and his heirs and assigns forever, the following negroes: Molly, Chance, .Harriet, Maria, Solomon, Pub, Amy, Gabriel, and Juliana, together with the present and future increase of the females, and should he die without lawful issue, the said negroes shall return to my other surviving children.

“ 6th. All the rest and the remainder of my negroes I give, devise and bequeath to my three daughters, to them and their heirs and assigns forever, to be equally divided among them, share and share alike; and further, as it is my earnest desire to divide my property equally among my children, it is my will, that, if the shares devised to my daughters shall be found to be unequal in value to the negroes devised to my son, Samuel Cordes, the deficiency shall be made up to them in Bank shares; and it is further my will, that if the negroes named, and devised to my son Thomas Evans Cordes be found, by appraise*208ment, unequal in value to those devised to my son Samuel Cordes, the deficiency shall also be made up to him in Bank shares, so that all the shares of negroes may be equal in value.”

The codicil reads as follow, to wit: *“*Whereas, I Charlotte Cordes, of the Parish of St. Stephens, District of Charleston, and State of South-Carolina, have made my last will and testament, in writing, bearing date-, have thereby given and bequeathed to my son, Thomas Evans Cordes, three negroes, namely, Pub, Amy, and Gabriel, and also thereby have given and bequeathed to my daughters, Catharine, Lavinia and Camilla Cordes, three negroes, namely, Judy, Cornelius, and Sib-by, Now, I do, by this my writing, which I declare to be a codicil to my said last will, revoke and declare void and of no effect so much of my said will as is contained in the above mentioned bequest; and whereas, in and by my last will and testament I have given and bequeathed .to my son, Thomas Evans Cordes, three negroes, namely, Pub, Amy, and Gabriel, and to my daughters, Catharine, Lavinia, and Camilla Cordes, three negroes, namely, Judy, Cornelius, and Sibby,. I do hereby order and declare, that I give and bequeath to my son, Thomas Evans Cordes, three negroes, namely, Judy, Cornelius, and Sibby, in lieu of Pub, Amy, and Gabriel, and to my daughters, Catharine, Lavinia and Camilla Cordes, three negroes, namely, Pub, Amy, and Gabriel, in lieu of Judy, Cornelius and Sibby. And, lastly, it is my desire that this, my present codicil, be annexed to, and made a part of my last will and testament to all intents and purposes.”

As to the will, it has already been made the subject of adjudication ; and the limitation over to complainants of the negroes named in the original bequest, is not. controverted. It is contended, however, that the three negroes, Judy, Cornelius, and Sibby, substituted for Pub, Amy, and Gabriel, are not subject to the same limitation. After hearing argument, and considering the cases cited by the counsel respectively, I have no hesitation in declaring that the substituted negroes, Judy, Cornelius and Sibby, were held by Thomas Evans Cordes upon the same *209limitations, and in all respects subject to the same conditions with the three named in the will for whom these were substituted by the testatrix, Mrs. Cordes, and that complainants are entitled to all negroes in the possession of defendant’s testator at the death of Thomas Evans Cordes, who were included either in the original bequest to Thomas Evans Cordes, or in the codicil, and to an account for their hire since his death. It is therefore ordered and decreed that it be referred to

one of the Masters of this Court to inquire and report what negroes bequeathed to Thomas Evans Cordes under the will and codicil of Mrs. Charlotte Cordes, were in the possession of Solomon Olarke at the death of said Thomas Evans Cordes, or are now in the possession of defendants, his executors ; what was their valne at the time of said Thomas Evans Cordes’ death, and what is now their value, and that he take an account of their reasonable hire, since the said death, and that he have leave to report such other special matter as may seem proper in the premises.

It is further ordered and decreed, that the Master inquire into and report the facts in regard to the time at which the claim of the complainants accrued, and how far the same may be affected by the plea of the statute of limitations.

The defendants, the executors of Solomon Clarke, appealed:

Because the codicil revoked the clause of the will, wherein the property is limited to complainants — and containing in itself no words of limitation, the defendant’s testator acquired an absolute estate by purchase from Thomas Evans Cordes.

*Martin,*for appellants.

*Hayne,*contra.

*Per Curiam.*

*We*concur in the decree ; and it is ordered that it be affirmed, and the appeal dismissed.

Johnston, Dunkin, Daegan and Waedlaw, CC., concur-ing.

*Appeal dismissed.*