#### Robert B. Withespoon and others, vs. Joseph M‘Kee, executor of Archibald M‘Kee.

ÍÍ.3E II.

*Georgetown.*

Heard before Chancellor Guillard.

A bequest of two negroes, Caisarand Sabina, and their increase, to the testator’s wife for life, and after her death, the said Cssar and Sabina to be divided amongst his wife’s daughters, *(by*a former husband,) does not carry the increase of Sabina to the said daughters. The words of the will show a different intention. The increase sinks into the re* siduuni of the estate, and are distributable.

Feb’y. 1809.

This bill is brought to determine the right to the issue of a negro woman named Sabina, under the following clause of Archibald M'Kcc’s will, viz. *“*First, 1 give and bequeath to Elizabeth my well beloved wife, two negroes, to wit, Csesar and Sabina, them and their increase, to her during her life, and after her death, the said negroes, Caesar and Sabina, to be equally divided amongst my wife’s three daughters, to wit, Jane Wither-spoon, Margaret and Elizabeth (KBrian. The female slave Sabina had issue horn after the death of the testator, and before the death of the widow of the testator, to whom Sabina was bequeathed for life. Her daughters, Jane, Margaret and Elizabeth, claimed the issue of Sabina, as well as the mother, but the residuary devisees and distributees of the testator Archibald M‘Kec, denied the rigid of the complainants.

The case was argued prior to December, 1808, before judges Rutledge and James, who differing in opinion made no decree.

It was again argued before judge Gaiilavd (sitting alone, under the new system,) who decreed that-the issue *15of the female slave Sabina did not pass under the will, but sunk into the residuum of Mr. A. M‘Kec’s estate, and ought to be devided amongst his children.- (No copy of the decree was furnished, and the statement is made from notes taken on the hearing of the appeal.) From this decree the complainants appealed on the following grounds, viz.

1. That the bequest of Sabina, the mother of the slaves who are the object of tins suit, was a vested legacy; and that whatever has grown out of it since it vested, belongs to those who are entitled to the legacy itself.

2. That no manifest and indubitable intention of the testator, that the future issue of Sabina should not follow her, can be inferred from the words of the *will}*and consequently, the intention which the decree supposes, is not sufficiently expressed to control the legal operation of the words.

8. That the supposed intention of the testator to include the future issue of Sabina, in the bequest of the residue of his estate, is inconsistent with the unqualified and unconditional bequest of Sabina to Mrs. M'Kcete daughters.

4. [Omitted in the brief.}

5. That a bequest of the residuum of an estate can comprehend only that portion of it which is not specifically bequeathed by the testator, and in esse at the time of making the will or death of the testator, since the construction must be made as tilings were at one of those periods. And as the words in the will of Mr. M'Kce are in the present tense, the construction of tiiat will must be made as things were at the making of it; and consequently, being then fixed and determined, cannot be altered anil increased by anything which was not then in esse, and which did not grow out of it.

6. That the maxim expressio unius est exclusio al-teráis, as forcibly applies to the residue of the estate, ac-to the bequest of Sabina; and as the testator expressed that residue to be what remained after the previous legacies should be taken off, every thing thus taken off, is neoesscrilv excluded from the residue.

*167. That the decree is founded upon the principle that a testator may dispose of a future interest in a chat-though no such disposition of the issue of Sabina is made by Mr. M‘Kee in his will.

g. That the decree is not consistent with the case stated in the proceedings, and contrary to law and equity.

The appeal was argued at Columbia by Mr. Grant for appellant, and Mr. Richardson for respondent.

Mr. Grant, for appellant.

‘This was a vested lega - cy — See .the following cases : 1 Atk. 511. 2 Atk. 457, Green *vs.*Elgin. 4 Bacon 395. S Atk. 58. 1 Brown 298, Monkhouse *vs.*Holmes. See also 2 Foubl. 367. The rule is with the complainant; and the intention on the face of the will is not sufficiently plain to control the decided cases. It is only by implication that such intention is discoverable. As to the residue, the issue of Sabina, born after making the will, cannot $ass under the residuary clause.

Mr. Richardson, for respondent.

The questions are: 1. Can a testator bequeath a future interest in a chattel? 2. If he can, what were the intentions of testator in this case ? A testator may make such dispositions of the future increase. The law is clear and well settled. Then as to the intention, examine the words of the will fully, and-they shew the intention sufficiently. Admit that the increase does not go under the bequest, or under the residuary clause, it does not follow that there is any difficulty: It will be undisposed property, and go to his legal representatives.

Mr. Grant, in reply. — The complainants do not claim under the express letter of the-will, but under the principle that partus sequitur ventrem : And as the female slave Sabina, is bequeathed after the death of the wife, absolutely to the three daughters, the issue born in the meantime, (that is, during the life of the- mother,) must go over with Sabina, on the death of'the mother or first legatee* to the three daughters.

The court, present chancellors Rutledge, James-, Thompson, Dcsauseuro and Gaillard, were of opinion} *17«'that the words of the will, in this case, though obscurely drawn, furnish sufficient evidence that the testator intended that the issue and increase of the female slaye Sabina, should not pass over to the legatees in remainder, and therefore ordered and adjudged that the decree of the circuit court should be affirmed/’