#### *W. J. Boone*vs. *W. B. Barnes, W. Flurry, et al.*

Testator bequeathed negroes to W. B., his executors, &c., “ and in case he should die leaving no children, then,” over; and provided, that until W. B. arrived at the age of twenty, or, if ho should die before twenty, until suoh time as he would have arrived at that age, E. and M. should have one-third of the profits of the ne-groes *:*— Held, that W. B.’s interest was defeasible in the event of his dying without children at any time.

*Before*DéSaussure, Ch., *at Charleston, April,*1831.

DeSaussure, Ch. The bill is filed by the complainant to obtain the judgment of the Court on the will of his uncle, Mr. John Edmondston. That will, .executed on the 5th day of *358October, 1817, was proved before the Ordinary, and, it is to be presumed, duly executed to pass real estate, because the. Ordinary certifies on the official copy presented to the Court, that it was probated by John A. Dodsworth, one of the subscribing witnesses: yet there are *no*names of witnesses to that copy. By that will the testator bequeathed four slaves, by name, with the increase, to his nephew W. J. Boone, his heirs, executors and administrators, qualified by a proviso, that the testator’s mother, and sister Maria Boone, should have one-third of the profits arising from the hire of- the negroes, until he (the legatee,) comes to the age of twenty years. And he also devises to his said nephew, his heirs, &c., the tract of land on which he resided. Then he adds, “ in case my said nephew W. J. Boone should die, *leaving no*children, then I give, devise and bequeath to the children of my sister Beatrix Flurry, the said four slaves, with the increase'of the females, and the said tract of land.” The devisee and legatee, W. J. Boone, has attained twenty-one years of age, and believing himself the absolute owner of the slaves bequeathed to him, has made a contract for the sale of two of the said slaves, and the purchaser, W. B. Barnes, is willing to complete the purchase if he can be made safe. But the children of Mrs. Beatrix Flurry insist, that, upon a sound construction of the will of the testator, they have a contingent interest in said slaves, depending on the possibility of W. J. Boone’s dying, leaving no children, and that he is not the absolute owner thereof, and cannot make an absolute sale of said slaves. They ask the protection of their interests, and security for the slaves. The question has been fully argued by the counsel. In considering the question, I lay out of the case the provisions of the will which direct, that the mother and sister of the testator were to have and receive one-third of the profits of the hire of the slaves to the time W. J. Boone should attain twenty years of age, even if he died before he attained that age. For in another part of his will he directs, that if his said nephew should die before he reached twenty years of age, his, the testator’s, mother, and sister Maria, should *359receive the third part arising from the hire of the said negroes until the estate is divided, each of the children to receive their part of the estate as soon as they arrive of age. These provisions were a mere temporary arrangement for the mother and sister, and have no bearing on the question of the quantity of estate bequeathed to the nephew W. J. Boone, and the limitations thereon. The question, thus stripped of extraneous matter, is simply whether the limitation over to the children of Beatrix Flurry' is a good one. The devise and bequest of the slaves and land is to W. J. Boone, his heirs, &c., and in case he dies, *leaving no*children, then to the children of Beatrix Flurry. The limitation is not too remote. It is not upon an indefinite failure of issue. If at the time of the legatee’s death, or (by indulgence of construction within nine months after,) there be no children of his living, the estate vests in the remainder-men. The contingency cannot be prolonged beyond that, which is within the limits prescribed. It appears to me to be a plain case, and with that impression I must decide for the defendants. But it does not follow that the devisee, W. J. Boone, may not dispose of his interest in the slaves subject to the rights of the remainder-men. Nor is it a matter of course that the person holding the slaves under the bequest, is bound to give security for the forthcoming of the slaves. That is not ordered unless a case of danger be made out, which has not yet been done.

It is, therefore, ordered and decreed, that the estate in the land and slaves in question is in the legatee W. J. Boone, subject to be defeated and to go over to the remainder-men in the event of his dying leaving no children. It is, further, ordered that it be referred to the Master to examine and report, whether there be any just ground of apprehension which would entitle the defendants to security for the forthcoming of the slaves, in the event of their devolving on the remainder-men.

Complainant appealed on the ground:

That from the whole tenor of the said will, the testator’s *360manifest intention was to limit the property first devised and bequeathed to his said nephew W. J. Boone, and over to the children of his said sister Beatrix Flurry, only in the event of his said nephew’s dying under twenty years of age and without leaving children, as a contrary construction would have deprived his nephew’s children of the property, (had he had children and died before twenty,) which would have passed over to other persons than the first object of the testator’s bounty; and as his nephew W. J. Boone did arrive at twenty years of age, the said property then vested absolutely in him.

*Lance,*for appellant.

The opinion of the Court was delivered by

Harper, J.

The question made in the case only regards the slaves bequeathed by the will of John Edmonson. The bequest to Wm. John Boone, his heirs, executors and administrators, “ and in case he, my said nephew, W. J. Boone, should die leaving no children, then I give and bequeath to the children of my sister Beatrix Flurry, (including Julia Sandford, her daughter by her former husband,) the four several negroes,” &c., would no doubt give him ah absolute property in the slaves, with a good executory devise over in the event of. his dying without children living at the time of his death, at whatever time of his life the death should happen. It is contended, however, that from the subsequent words of the will, the devise over must be restricted to the event of W. J, Boone’s dying without children, *and*under twenty years of age. I do not think that conclusion can be drawn from the words of the will. The testator provides that his mother, and sister Maria Boone, shall have one-third of the profits of the slaves until his nephew arrives at the age of twenty. To prevent a difficulty that might arise, however, he provides that if his nephew should die before twenty, the provision shall still be continued till such time as he would have arrived at that age. Testator also provides that if his sister, Maria Boone, should remain the widow of her deceased husband until the division of his estate be*361tween the children of his sister Beatrix Flurry, she should take an equal share with those children. There is nothing in all this inconsistent with the intention to devise over on the event of the nephew’s dying without children, at whatever time of life he might die. The decree .of the Chancellor is therefore affirmed.

Johnson and O’Neall, JJ., concurred.

*Decree affirmed.*