#### *Elizabeth Baker*vs. *W. Baker and Saml. Red.*

Testator bequeathed as follows : “ X lend unto my daughter E.,” *(a feme coveri)*“ enduring her natural life, my negro girl Rósela, at the discretion of my executors from year to year as they think proper; and then said Rósela and her increase to be equally divided amongst the heirs of her body j and in ease the said E. shall die without issue, then the said Rósela and her increase to be equally divided among all my other heirs the executors delivered Rósela to E. and her husband, who had her in possession many years: *Held)*that the legal title remained in the executors; that the marital rights of the husband had not-attached, and that Rósela and her increase were not liable for his debts, and could not be mortgaged by him.

*Before*DeSatjssure, Ch., *at Newberry, July,*1831.

The bill was filed May 1, 1828, by complainant, Elizabeth Baker, by her next friend, George McCreless., The bill, states, that on June 10,1811, the father of the complainant, Thos. Userry, executed his last will and testament, in which is the following clause, to wit: “ I lend unto my daughter Elizabeth, enduring her natural life, my negro, girl, Rósela, at the discretion of my executors from year to year, as they think proper; and then said Rósela and her increase to be equally divided amongst the heirs of her body and in case the said Elizabeth shall die without issue,' then the said Rósela and her increase to be equally divided among all my other heirs.” That on the *19212th day of the month and year aforesaid, the said Thomas, a resident of Montgomery County, North-Garolina, departed this life, leaving his said will in full force. That shortly after his death, the executrix and executor named in his will, exhibited the said will to, and it was admitted to probate by the' County Court of the said County, and the executrix and executor therein named;-qualified and took upon themselves the burden and execution thereof.

That at the death,of her father, the complainant was the wife of Williamson Baker, and resided in Montgomery County, North-Carolina. That at the time she and her husband were about removing to this State, the executrix, under the clause of the will above recited and set forth, delivered to complainant, as a loan, for her separate use, the said negro girl, Rósela ; that the complainant has held the said negro, Rósela, from that time to the present, in possession, for her separate use, except for a period during which she was hired by herself, and her husband, to one Wm. Haston. That the said negro girl, Rósela, has had three children, to wit, Elijah, Martha and Sam. That Williamson Baker, the husband of the complainant, being indebted to one Samuel Red, the said Samuel Red, well knowing that the said negro girl, Rósela, and her increase, were only in the possession of the complainant, for her separate use, caused the said Williamson to be arrested, under a bail writ, or a *ca. sa.,-*or perhaps both. That the said Williamson, without understanding his duty in the premises, assigned all his interest in the said negro and her increase, (well knowing that he-had none,) to the said Sami. Red, in order to procure his liberation from confinement, under the prison bounds Act. That the said Sami. Red-, under the said assignment, has seized the said negro, Rósela, and her increase, and is proceeding to sell the same.

The prayer of the bill was to restrain the said Sami. Red, perpetually, from proceeding to sell the said negro, Rósela, under the assignment.

Williamson Baker filed his answer July 6, 1829, admitting the material allegations in the bill, and affirming them to be true.

*193Sami. Bed also filed his answer, neither admitting nor denying the allegations of the bill in relation to the execution of the will of Thomas Userry; but contending that the executrix of the will, by delivering the negro to complainant and her husband, when they were about to remove from North-Carolina, assented to the legacy, so far as to vest a life estate in the slaves in complainant. He denied that complainant had had the separate use of the slaves, but believed that Williamson Baker had had almost the exclusive use thereof. That he regarded them as the property of Williamson Baker, up to the time, (February 27,1822,) he took a mortgage of them for the principal part of the debt due him by complainant’s husband.

DeSaussure, Ch. The question turns on the construction of the will. The clause in question is worded very oddly. It is first a gift of the slave to the daughter, Elizabeth, during her life; then there is a discretion in the executors, to limit the possession from year to year. Then a limitation to the heirs of her body: and upon her death, without issue, tobe divided among the other heirs of the testator. Whatsoever degree of discretion was given to the executors, did not diminish the estate, and could only apply to the possession. That discretion they have exercised, by giving possession for many years without control. The bequest to the daughter is for life. The limitations over are upon an indefinite failure of issue, and therefore too remote and void. The legacy then vested absolutely in the first takér; with all the consequences of such vesting. The marital rights of the husband attached, and the husband had a right to assign or transfer the property. He has done so; and the creditor has a right to be paid by the sale of the slaves.

The bill is dismissed; but let the costs be paid out of the sale of the slaves.

The complainant appealed on the following grounds:

1. Because, under the clause of the will, the wife took no estate upon which the marital rights of the husband could attach, and therefore he could not assign or convey it.

*1942/ .Because the legal estate remains in the executors, who hold the slaves, to be loaned to the wife from year to year during the wife’s life, the loan to be at the discretion of the executors.

3. Because the Chancellor erred in decreeing the limitation to be too remote, and that the first taker, took absolutely.

4. Because the words of the will, under the circumstances, the wife being a feme covert, created a separate estate for her use, and particularly so, as the will being made in North-Carolina, is to be construed according to the laws of that State.

*Dunlap,*for appellant.

The opinion of the Court was delivered by

JohnsoN, J.

It is not my purpose, nor is it deemed necessary, to enquire, whether the limitation over, of the negro, Rósela, after the death *of the*complainant, Mrs. Baker, can or *cannot*take effect. It is a question, perhaps, not entirely free from difficulty. But be that as it may, if she took an absolute property, the bill of sale, by way of mortgage, made by her husband to the defendant, Red, is good, and binds her. So, if she took only a legal estate for life, the mortgage is good to that extent, and she has no cause of complaint. It is only necessary, therefore, to enquire, whether under the will of her father, Thomas Userry, out of which these questions arise, she took any interest which was subject to the disposition of her husband, or rendered the negro liable for his debts. The following is the provision of the will before alluded to, " item, *I lend unto my daughter*Elizabeth, (the complainant,) *enduring her natural life, my negro girl, Rósela, at the discretion of my executors, from year to year as they shall think proper;*and then said Ró-sela, and her increase, to be equally divided amongst the heirs of her body, and in case the said Elizabeth shall die without issue, then the said Rósela, and her increase, to be equally divided amongst all my other heirs.” Every man of competent age, possessing a sound and disposing mind and memory, has a right to prescribe a rule for the disposition of his property after his death. His will or testament is evidence of his intention as to *195the manner of disposition, and all the rules of construction have been framed to ascertain that intention. To effectuate this, it is admissible to substitute, or for and, and *e converso.*The strict grammatical construction may be disregarded, and words and sentences transposed: 1 Rob. on Wills, 490. In short, there is no limitation to the powers of construction according to the intent, but certain arbitrary rules rendered necessary by the laws of property.

Let the question then be put — what estate did the testator intend, by this bequest, to give to the complainant, in the negro Rósela *1*He certainly did not intend to give her the absolute property ; for her interest is in. terms limited to her life ; and, whether the limitation over is good or bad, is immaterial to this question, for that depends on an arbitrary rule.- It is, I think, equally certain, that he did not intend to give her an absolute unconditional life estate. If that had been his intention, it was sufficiently expressed by the terms *“ enduring her natural life,”*and he would not have encumbered it with *“ at the discretion of my executors from year to year, as they shall think prover*and I venture to affirm, that no one ever yet employed these terms, in the belief that they were necessary or fit, in a bequest of an unconditional life estate. He must then have employed them for some other use, and if it be practicable to ascertain the intent, we are bound to give it effect. The word *lend*is also used in connection with this qualification of the interest given — “ I lend unto my daughter,” &c. In its legal sense, as well as in its common acceptation, the term loan is used to express a property in the things lent, limited by the contract of lending, or determinable at the will of the lender. The thing lent, must be used in the manner contemplated, for if the borrower use it otherwise, he is liable to the lender, — it is, therefore, necessarily personal in the borrower. If the time be limited by the contract, or if it be terminated by the will of the lender, the thing must be restored, or the borrower is liable toan action. Jones on Bailm. 74. I know that the word lend, in a will, is frequently interpreted *give,*but that is to give effect to the inten*196tion. Thus, if] a testator .says, “I lend my servant Dick to my son John forever,” it will be construed *give,*because a loan, would be inconsistent with the extent and duration of the property given... But here it is connected with *“*at the discretion of my executors from year to year as they shall think proper,” and these térras, if they mean anything, hot only do not control the technical meaning of the word *¿end,*but *expressly*limit the loan from year to year; and even then it is determinable at the will of the .executors. Tt is then a loan .in the strict sense of the word. It is personal to the complainant, nor can she use the negro, otherwise than contemplated, and, she must have her ready, át the end of each year, to be delivered to the executors,if they shall think proper to terminate the loan; — and this is-utterly inconsistent' with the power of disposition 'by the husband, or liability to his debts. To enable the executors to exercise any discretion over the .negro, 'it was indispensably necessary that the legal interest should abide in them; for the exercise of a discretion' over property in which one has no interest, involves an absurdity. No precise form of. words was necessary to create a trust in them; for, when it'is necessary to carry into effect the.intention of the testator, it arises by necessary implication. The case of *Graves*vs. *Johnson,*decided at May Term, 1830, is in point, and I think the principle is deducible from *Foley*vs. *Burnell,*Cowp. 445, note. The legal property, therefore, remained in the executors, as indispensably necessary to carry the ' testator’s intention into effect. *It is*remarked, in'the Circuit Court decree, as the basis of the judgment, that-the executors had exercised their discretion by delivering up the negro to the complainant, and suffering her to retain the possession for a long period. It was a trust reposed in them of which they could not divest themselves,-as was said in *Graves*vs. *Johnson,*and besides that, the possession of Mrs. Baker was in the direct execiition'of the trust, and her retaining possession, was evidence of their assent from year to year, and no- more. I am, therefore, of opinion, that the legal estate in the-negroes is in the executors of the testator, Thomas Userry, in trust for the *197use of the complainant from year to year until they shall think proper to determine it; that her possession is consistent with, and in pursuance of the trust, and consequently, that her husband had no power to dispose of them.

It is, therefore, ordered and decreed, that the decree of the Circuit Court, directing that the negroes, mentioned in the complainant’s bill, be sold by the Commissioner to satisfy the debts due to the defendant, Sami. Red, by the defendant, Williamson Baker, and for dissolving the injunction heretofore granted, to restrain the said Red from selling the said negroes, be and the same is hereby set aside and reversed ; and that the said injunction be made perpetual, and that each of the parties pay their, own costs.

MautiN, J., concurred.

O’Neall, J., was of counsel in the cause, and gave no opinion.

*Decree reversed.*