#### *Susan and Wiley Glover*vs. *Eliz. Harris, Geo. A. Addison and wife, and E. S. Irvine and wife.*

Testator, intending “as for Ms worldly estate to dispose thereof,” devised and bequeathed as follows: — “ X lend to my wife, J. G-., during her natural life, the use of one half of my land” (describing it) “and five negroes” (naming.them): after other bequests, the will contained the following residuary clause, to wit: “It is my will, that at my decease all the property which X possess and have not before bequeathed, be sold on a credit of one and two years, and for my debts to be paid out of the debts which are duo me, and the money arising from the sales of *my*properly; and the balance to be put out at interest for the use and support of my children,” *&c:*— Held, (1) that the five negroes did not pass to the wife absolutely, but for life only; (2) that the reversion, after her death, did not pass under the residuary clause, but was intestate property.

*Before*JOHNSTON, Cb. *at Abbeville, June,*1851.

JOHNSTON, Cb. Tbe bill in this case was filed tbe 21st of April, 1851; and is for a partition of slaves and an account, &e. Tbe contest is between tbe descendants of Wiley Clover, Sen. and of ,- bis wife, Jemima, both deceased, in relation to the proper distribution of their estates under their wills. In tbe opening of tbe judgment I am about to pronounce, it may conduce to tbe understanding of it, to state tbe relation of tbe parties, and bow tbe controversy between them bas arisen.

*26Wiley Grlover, Sen., married Jemima, the daughter of one Bart-let Satterwhite. At his death, which took place the 8th February, 1806, he left a will, dated the 6th of December, *1804,*(the provisions of which will be noticed hereafter,) and was survived by his said wife and two children, a son and a daughter. The son, Willis Satterwhite Grlover, is now dead intestate, and the plaintiff, Susan Grlover, is Ids widow. The plaintiff, Wiley Grlover, Jr., is his son and only child, consequently these two are his sole distributees.

The daughter, Elizabeth, is the defendant, Elizabeth Harris, and the defendants, the wives of George A. Addison and E. S. Irvine, are her two daughters.

Having stated the relation of the parties to this suit, let us now go back to matters which some of the parties suppose bear more or less upon the controversy between them.

Bartlet Satterwhite, after Wiley Glover, Sen., married his daughter, executed his will the 15th of February, 1803, which contains the following clause:

“ I give and bequeath unto my beloved daughter, Jemima Glover, (to her and her heirs lawfully begotten of her body,) forever, the following negro slaves, (they and their increase,) namely, *Tener*and *Qhaney;*and after the demise of my wife, one negro woman, named Jude, (her and her increase).”

This testator (Satterwhite) did not, however, depart this life until the 21st of January, 1807, when he died, leaving his said will in full force, which was admitted to probate the 14th of the succeeding April.

In the mean time, to wit, on the 6th of December, 1804, Wiley Glover, Sen., the husband of Jemima, executed his will, as has been stated, containing the following clauses, among others :

“ As for the worldly estate it hath pleased God to bless me with, I dispose thereof as follows: * * * * *

“Item: I lend to my loving wife, Jemima Glover, during her nar tural life, the use of one half of my land, (the same including the plantation and building where I married her,) and five negroes, namely, one negro man, Murphy, one woman, *Tener,*two boys, *27Nat and Jack, and one girl, Mariab,” (Murphy and Mariah are both dead, and are not in question in this case,) “ three head of horses, (viz: one young sorrel mare, one bay filly, and one sorrel horse colt,) ten head of picked cattle, all my stock of hogs and sheep, two feather beds and furniture, and as much of the household and kitchen furniture and plantation tools as she wishes to keep for her use.”

*■%.*i]< JjC i{?

*“*Item: It is my wish and desire, that when my daughter, Elizabeth Griover, comes of age or marries, the following mentioned negroes and their increase be equally divided between my daughter, Elizabeth Griover, and my son, Willis Satterwhite Griover, share and share equal, namely, Anneky, Harriet, Mary, Ohaney, Harper, Ned and Wince.

“ Item: It is my will and desire, that at my decease all the property which I possess and *haw not before*bequeathed, be sold on a credit of one and two years, and for my debts to be paid out of the debts which are due me and the money arising from the sales of my property; and the balance to be put out on interest for the use and support of my children, Elizabeth Glover and Willis Satterwhite Glover.

Item: It is my will and desire, that when my daughter, Elizabeth Glover, marries or comes of age, all the monies arising from the sales of my property, be equally divided between my daughter, Elizabeth Glover and Willis Satterwhite Glover.

“ It is my wish and desire, that my wife, Jemima, shall keep and have the use of the negroes which I have before bequeathed to my daughter, Elizabeth Glover, and Willis Satterwhite Glover, until my daughter, Elizabeth Glover, and Willis Satterwhite Glover, comes of age or marries.”

The executors named in the will were testator’s wife, Jemima, and-his friends Nathan Lipscomb and James Bullock.

This testator died, as has been stated, on the 8th of February, 1806, and on the 6th of March, 1806, his will was admitted to *28probate, and the widow, Jemima, and James Bullock qualified as executors.

On the 11th of the same month, they caused an inventory and appraisement to be made and returned to the ordinary; in which Chaney and her three children, Harper, Ned and Tom, and *Tener*and her three children, Nat, Jack and Mariah, are set down as part of thoir testator’s estate; *Jude*is not included in the inventory.

Jemima, the widow of G-lover, intermarried with Nathan Lipscomb, the 9th March, 1808, and they had the possession of Tener and her issue.

Lipscomb’s will is in evidence, dated the 26th April, 1820, and admitted to probate the 29th September of the same year, by which he willed, “ that his wife, Jemima, should have all the ne-groes she had in her possession at the time of their intermarriage, and their increase, viz: Tener, Nat, Jack, Harry, Johnson, Caroline, Sarah and Isaac, and their future increase,” &c.

Jemima Lipscomb, (formerly Glover,) died the 29th January, 1850, leaving in full force her will, executed the 18th of April, 1849, by the 2d clause of which she bequeathed to her grand daughter, the defendant, Ann Jemima Harris, (now wife of the defendant, E. S. Irvine,) during her natural life, “ Jenny and her children, Chaney and Harper, Harry and his wife, Milley, and her children, Jim, Tom, Eib, Dicey, Harry, Mary, Isaac and Emeline, and Johnson and Sarah and her children, Elvina, Jude, Peter and Lina, with all their increase,” with remainder to her children, &c.

By the 3d clause, she bequeathed for life, with remainder, &c., to her grand daughter, the defendant, Bebecca, wife of George A. Addison, “Edy, Eliza, Amanda, Frances, Emma, Jane, Sarah, Edmund and Doc; and Caroline and her children, Lewis, Tira, Bill, Johnson, Josephine and Elizabeth, with all their increase,” &c.

By the 5th clause, she bequeathed to her daughter, the defendant, Elizabeth Harris, (formerly Glover,) *“*Rachel and her children, Allen, Tilda, Cary, Gus and Lisha, and Jack and Nat, Jude and Tener, to her, her heirs and assigns forever.” '

The plaintiffs, the widow and son of Willis Satterwhite Glover, *29claim under tbe will of Wiley Glover, Sen., insisting that the will of bis widow, (afterwards Jemima Lipscomb,) is ineffectual to alter tbeir rights, as fixed by the will of her first husband.

The defendants claim under the will of Jemima Lipscomb, and fortify their claim by the will of Bartlet Satterwhite, insisting that Wiley Glover had no such rights in the property as enabled him to bequeath it.

The negroes mentioned in the pleadings are:

1st. Jude and her issue.

2d. Chaney and her issue.

3d. Tener and her issue.

I shall put Chaney and her issue out of the question. They are bequeathed by Glover absolutely to his two children, and have been partitioned in a former proceeding given in evidence, which is conclusive between these parties.

With respect to Jiide and Tener and their respective issues, it is very clear, that if they were in possession of Glover and wife, at the time of Glover’s death, as their property, the marital rights of Glover attached, and they must be governed by his will; and it must depend on the terms of the will whether his widow had any right of disposition over them.

If, however, Glover had no right to the property at his death, the will of his father-in-law, Satterwhite, which, though first executed, came subsequently into operation, must govern; and if that is the case, I suppose there is no question, the legal operation of that will was to vest the property absolutely in Satterwhite’s daughter; and (her second husband, Lipscomb, having by his will released his marital rights,) her will is sufficient to carry the title.

Now, with regard to Jude and her issue, it not only appears negatively, (from the fact that there is no evidence of Glover’s possession; that they are not mentioned in the will of Glover; and especially that they were not inventoried as part of his estate,) that they were not in his possession in his life time, but the pregnant fact is also in evidence, that Satterwhite’s will, which alone mentions the existence of such negroes, suspends Mrs. Glover’s *30right upon a prior disposition of them for life to her mother, who lived, according to the evidence, until 1817; so that it was impossible for Glover’s right, as husband, ever to have attached during his life. These negroes were, therefore, well disposed of by Mrs. Lipscomb.

It remains to consider Tener and her stock: two of these, Murphy and Mariah, (I include Murphy as of that stock for convenience, though he was of a different stock,) died during the life of Mrs. Lipscomb, who had a life tenure in them, under Glover’s will, and are, therefore, out of the question here.

As to the remainder of that stock, I am of opinion, that it stands upon a footing different from Jude and her issue. The evidence that Tener and her children were inventoried as parcel of Glover’s estate, by his widow, under whom the defendants claim, within little over a month after his death, is pretty conclusive and very satisfactory evidence, as against them, at least, that ho died possessed of them. This, too, was in the life time of Satterwhite, who may be supposed to have taken some interest in the affairs of the family and probably was not ignorant of the fact.

Upon this evidence, I conclude, that Glover, who named this stock of negroes in his will, had obtained possession of them as early as 1804, (the date of his will,) and held them as his own.

There is no evidence that they were ever in Satterwhite’s possession after Glover bequeathed *them;*nor, indeed, is there any evidence, that they were at' any time, whatever, in his possession, beyond the fact that they are mentioned in his will of 1803.

It is not unreasonable to suppose, that, after that will was drawn, he concluded to anticipate the bequest by an actual gift *inter vivos.*

In opposition to the actual possession of them by Glover, and his disposition of them, I do not feel at liberty to conclude that there was any right remaining in Satterwhite, upon which his will, when it came into operation by his own death, could act.

It has been ingeniously argued, indeed, that Glover held as bailee of Satterwhite, and by his will, only intended to confer on his wife the same interest which he supposed was given her by the *31will of Satterwhite, his bailor. But where is the evidencee of the bailment ? If he knew of Satterwhite’s will and its provisions, and acknowledged his right, where was the necessity or the propriety of attempting to make any disposition of the property, at all ? Besides, even if he supposed that Satterwhite’s will gave his wife a life tenure in the slaves, with remainder to the issue of her body, why did he not conform to that ? "Why did he dispose of Toner and Chaney differently ?

My conclusion is, that these slaves must be governed by Glover’s will.

Some remarks have been made upon the construction of that will.

It is remarkable that there is no general residuary clause in this testamentary paper. The testator sets out with the expression of a desire to dispose of his whole estate : which circumstance, upon authority and in reason, will justify the giving to subsequent dispositions, a wider scope and operation than they would otherwise be entitled to. But even under such circumstances, an unreasonable, unnatural or forced interpretation should not be adopted.

In this will there is no specific disposition of these slaves beyond the life interest of Mrs. Glover. There is, to be sure, a provision for the sale of “ all the property which I possess and have not bequeathed.” This may mean all property as to which no bequest is made at all; or it may mean all interests undisposed of in property not fully bequeathed, and certainly, under the general rule that a testator, declaring an intention to dispose of his whole estate, should have his will so construed, if it reasonably can be, as to effect his intention, I should adopt the latter construction, if it were not repugnant to the other provisions of this will. The testator not only directs his unboqueathed property to be sold, but to be sold *“*at his death.” He could not have intended this direction to operate on these slaves, since such a sale would have defeated his specific direction, that his wife should have the enjoyment of thorn during her life. There is another reason, which, it appears to me, should prevent the construction *32alluded to. It consists in tbe purpose wbieb tbe sale was intended to effect. Tbe sale was to raise funds to pay debts. Now, it is of tbe very essence of a specific bequest; sucb as tbe gift to tbe wife, here for life — that tbe property is given clear of debts, and that the debts should be paid out of other property, without disturbing it.

It is argued, however, that tbe reversion might have been sold, and tbe wife allowed to retain and enjoy tbe slaves, without disturbance, during her life. But this property was personal property ; and it is difficult to conceive bow tbe sale could have been made good without a delivery; and bow could that have been made without disparaging tbe rights of tbe life tenant.

If this property was not intended to fall within tbe provision for a sale, another point in the construction, which was contended for by tbe plaintiffs, is also overruled. Tbe proceeds of the sale were not only to be applied to debts, but, whatever balance might remain, after the debts were satisfied, was to be divided between the two children, Willis and Elizabeth. It was urged that this should give these two an equal portion in the negroes, after their mother’s death, instead of the money which the sale was intended to raise. I might concede, that where personal property is ordered to be sold and the proceeds divided, and the property is not actually sold, the persons among whom the proceeds are to be distributed have an equitable interest, entitling them to the property itself. But I have arrived at the conclusion, that *this*property was not directed to be sold, nor its proceeds divided, and, therefore, I cannot apply the doctrine to which I have alluded.

But it was 'contended, on the other hand, by the defendants, that these slaves were given by the will, out and out, to the widow. If so, there was no reversion in the case. And upon this construction, the slaves, belonging absolutely to the widow, must pass under her mil; and the plaintiffs have no interest in them.

The argument was, that, by the proper construction of Grlover’s will, though he loaned his wife, for life, one half his land; yet, as a *separate*thing, he loaned her the five negroes mentioned by him, *33without restricting the loan to her life. That the word “lend,” as applied to the negroes, is equivalent, in law, to a gift; and there being no restriction as to time in that part of the will, the gift was absolute.

If the loan was of the land and of the negroes, as separate dispositions and upon different terms, there might be ground for the inference contended for.

The words of the will are, “ I lend to my loving wife, during her natural life, the use of one half of my land,” (describing it,) “and five negroes,” (naming them).

I cannot disjoin these things. In *Moon*vs. *Moon,*(2 Strob. Eq. 333,) the Court, for reasons appearing in the context of the will, arrived at the conclusion, that a tract of land and two ne-groes, given in the same clause, were given upon different terms; and that terms of restriction, employed in more immediate connection with the negroes, were applicable to them exclusively, and not to the land. But this was done by construction. But I cannot see room for construction here. The disposition of land and negroes is *uno flatn.*They are both loaned, and loaned for use only, and for life. . •

I think, too, that in such a connection as this, (whatever may have been decided upon the word “loan,” in other connections,) it would be both unnatural- and unreasonable to suppose that the testator intended to give, in the sense, at least, of parting from his whole right.

The result, in my opinion, is, that the will of Grlover operated only to dispose of these negroes during his wife’s life; and the remainder jn them was intestate property of his estate.

His widow was entitled to an undivided third of that remainder, and each of his children, Willis and Elizabeth, to an undivided third.

The widow, Mrs. Lipscomb, was entitled to bequeath her third; and so far as she has done so, the defendants are entitled to the benefit of her will.

The plaintiffs are eiititled, by partition, to have the third to *34which Willis Satterwhite G-lover was entitled, allotted to them, and sub-partitioned between them, by allowing to the plaintiff, Susan, one-third of that share, and the plaintiff, Willis, the remaining two-thirds of the same. And they are entitled, in the same ratio, to an account of the hire or profits of said slaves, from the death of Mrs. Lipscomb, at the hands of the defendants, in whose hands respectively, the said slaves have been. All which is hereby adjudged and decreed : and let a writ of partition issue, and an account be taken by the Commissioner accordingly.

If any of the slaves have died since the remainder fell in, or have been disposed of by either of the defendants, and are not now in their possession, the Commissioner will take an account of' the value of such slaves, and report it for the judgment of the Court; which will be reserved on those matters until the report comes in. He may also report any special matter, subject to the same conditions. The defendants to pay the costs.

The defendants appealed, on the following grounds:

1. Because there was no evidence that Bartlett Satterwhite ever gave Tenor and her increase to Wiley G-lover, or his wife, Jemima, except what is contained in his (Satterwhite’s) will. The bequest in his will did not and could not take effect until his death; but he died after Glover, and therefore he, Glover, never had the right to dispose of said negroes.

2. Because there was no evidence that Wiley Glover ever had possession of Tener, except the circumstance of his having disposed of her by will; but if he had the custody of her at the time he wrote his will, 6th December, 1804 — a period subsequent to the making of Satterwhite’s will, 15th February, 1803 — it, is reasonable and natural to conclude that his possession was not absolute, but permissive, and solely in reference to the will of Satterwhite, by which Tener was given to his wife, which gift, however, was inchoate and imperfect, until the will took effect by the death of Satter-white.

3. There was no evidence of a gift of Tener from Satterwhite to Glover or his wife, other than that in Satterwhite’s will. There *35was no evidence even of possession by Glover, except the effort to dispose of her by will, which conforms to Satterwhite’s will, in not assuming to dispose of her beyond the life of Jemima, his wife; therefore, the defendants insist, that there was no gift to Glover, nor such unqualified possession by him as will presume a gift in his favor.

4. But if it be assumed that Wiley Glover had the right to dispose of Tener, by presuming a gift, other than that embraced in Satterwhite’s will, *and in opposition to it:*then the defendants insist that Wiley Glover, by *his*will, disposed of all his interest in Tener and her increase to Jemima, his wife, the donor of defendants.

5. The defendants insist that Tener was given absolutely to Je-mima Glover, by the will of her father, Bartlett Satterwhite, certainly by the will of her husband, Wiley Glover. But if it should be held that “there is no disposition of these slaves beyond the life interest of Mrs. Glover,” then the interest in remainder, which was not bequeathed, should have been sold at the death of Glover, under the express provisions of his will. And a bill having been filed for that purpose many years since, the matter is now “ *res adjudieata.”*

6. The interest in Tenor and her.children undisposed of by the will of Wiley Glover, was an interest in reversion, as to which he died intestate — which on his death vested instantly in those entitled to distribution; and they are now barred by lapse of time and the statute of limitations.

7. Mrs. Jemima Glover — afterwards Jemima Lipscomb — held these negroes, from the death of Satterwhite, in 1806, until she died in 1850. She held them as her own, adversely to every other claim, especially after the death of Nathan Lipscomb, in 1820, under whose will these negroes were given to her for the third time: and the complainants are therefore barred by lapse of time and the statute of limitations.

*Perrin MeGrowen,*for appellants.

-, contra.

*36The opinion of the Court was delivered by

JOHNSTON, Ch.

This Court, being entirely satisfied with the view which the Chancellor has taken, as regards the possession of the slave Tener and her children by Wiley Glover, and the operation of his will upon her, as his property: — deems it necessary to notice only two points made in the argument of the appeal here:

1. Was that slave given by the will of this testator, in the first instance, to his wife absolutely; or only for life ?

2. If for life only, did the residuary clause of the will attach upon the reversion; or did it remain intestate ?

1. No case has been pointed out at all obliging the Court to put a construction upon the words of the will, contrary to their plain and manifest meaning. Nothing can be plainer than that the testator intended, as he says in his will, to loan to his wife the use of this property, during her natural life.

The case of *Moon*vs. *Moon,**(a)***even if it apply almost in terms to tins case, is no authority for a construction against the plain intent of. the will. That case was ruled upon the construction of the particular will before the Court, — and the decision was made with a view to promote, and not to contradict, the real intention.

There is a difference between the phraseology of that will and this: — and where the difference of phraseology points to a different intention in the two cases, principle,- — (the same principle which governed the construction in that case,) — compels us to come to a •different result in this.

The two cases agree in this: that the testators both intended to dispose of their whole estates: that after a disposition of realty and personalty in the same clause, which certainly as to one class of property was intended to be only for life, and as to the other was equivocal, the testators take up a portion of the property and make it the subject of further disposition, — but totally neglect the other.

So far the two cases agree. But they differ in other respects.

*37In *Moon*vs. *Moon,*the words of the will, (supplying necessary words,) are these: “ I *give*my wife, N. T. M., tbe tract of land whereon I live, containing 200 acres, more or less; also ” (I give her) *“*two negroes, to wit, my man Stephen and my girl Harriet, *during Tier natural life, or widowhood,”*&c.

In this ease, the will is, *“*I lend.to my loving wife, J. G-., *during her natural life,*the *use*of one half my land,” (describing it,) “ and fire negroes,” (naming them).

Is it not palpable that the words, “ during her natural life,” are, in the latter case, connected immediately with the *words of disposition,*so as to qualify *them,*before th^are applied by the testator to the subjects disposed of. NUli'e ¿fleet'isP^at whatever subjects are touched by the disposi^oñl;%'^ff^íiféd %■ the qualification attached by the testator to the Words of dispositio¿|themselves.

.The words of this clause of MM^flLi^llilidlf'^he same meaning as if he had said, “ I am going to ^goipt out property which I intend for my wife, but^ÍMeSL'(fe|i»I'feÍ3.'íf to her, for her use diming her life: and upon thes^'¥er&&*fiij,iwill is that she have the land and five negroes.”

The phraseology of Moon was different. He imposes no restriction upon the words of disposition in themselves, but uses them in their natural sense. Applied in their natural sense, they gave his wife a fee in his land; and so would they have given her the negroes absolutely, if he had not, in immediate proximity with that disposition, imposed a restriction upon the gift, as made by the words of disposition.

In that case, a full and unqualified disposition was made, applicable to *both*land and negroes, — and then a restriction is imposed upon that disposition, so far as related to the negroes.

In this case, nothing but a *qualified*disposition proceeds from the mouth of the testator, equally affecting all the property to which he applies it. If our language afforded a verb signifying, “ I lend for life,’\we should have this testator’s meaning if we inserted that single word instead of the words of disposition employed by him.

*38I think, too, as I have intimated in the decree, that the word “lend,” used in such a connection as this, is evidence of an intention to make a limited disposition. Take the words, “ lend,” “use,” “for life they all harmonize in shewing that there was no intention, — there could be none, — to give the property absolutely and forever. In *Ward*vs. Waller, (a) it is said: “ the term *me*might sometimes afford argument for an intention to give only a life estate :” — and I think when it is connected with the word “lend” and the words “during her life” — all standing in one group — it is difficult to conjecture any other intention.

2. Being satisfied that these slaves are only given for life, I am, also, of opinion, that the residuary clause of the will does not embrace them; and therefore they are intestate property after the efflux of the life estate.

I can add very little to what I have said in the decree upon that subject.

The direction, then, is to sell, at the testator’s death, all the property to which the special residuary clause was intended to apply. The very fact that the interest now under consideration was of necessity, at that time, a reversionary interest, upon which no act of administration could be performed until the prior life estate expired and the reversion accrued, — of itself *forbids*the idea that it was intended to be parcel of the property then directed to be subjected to an act of administration.

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

DarsaN and DüNKIN, CC. concurred.

Wakdiaw, Ch. having been of counsel in the cause, gave no opinion.

*Decree affirmed.*

(a)

**2 Strob. Eq. 333.

(a)

2 Sp. 793.