#### *Inabinit*vs. *Inabinit.*

Testator, haying a plantation, about thirty-fire negroes, furniture, &c. devised and bequeathed, by the 1st. clause of his will, to his wife, for life, his plantation, furniture, &e. and four negroes, with remainder to his children: in the 2d clause he declared that, as he had advanced to his married daughter, E. M. two negroes, one horse, &c. he desired “ that as each one of my children marries or becomes of age, they are to receive out of my estate, two negroes, one boy and one girl, between the age of ten and twenty years, one horse,” &c. “ to make them equal with my said daughter,” E. M; and by the 3d clause, he bequeathed the remainder of his ne-groes, “not heretofore devised of,” to all his children, to be equally divided among them: Testator left nine children, all of whom were minors — the youngest being six years of age — except E. *M:*— Held, (1) that there could be no division of the ne-groes bequeathed by the 3d clause of the will, until the last child arrived at age or married, and received his two negroes, horse, &c. under the 2d clause; (2) that the annual income of the negroes bequeathed by the 3d clause, after using so much (if any) as may be necessary for procuring the articles given by the 2d clause, could not be used for the maintenance of the minor children, but should be distributed annually among all the children.

*371*Before*Dunkikt, Ch. *at*Orangeburgh, February, 1851.

Dunkin, Ch. James Inabinit died on the 7th March, 1849, leaving a will duly executed, on the seventh day of January, previous. The testator left a widow, the complainant in these proceedings, and who has also qualified as executrix of his will. He left also a daughter, the wife of the defendant, Daniel Y. Y. Funchess, and eight other children, all of whom are minors, the youngest about six years of age, (except the defendant, Mary C. Inabinit).

His estate consisted, principally, of the plantation on which he resided, and some thirty-five negroes.

The bill is filed for the purpose of having the trusts of the will declared, so far as may be necessary for the instruction of the complainant in the discharge of her duty.

In ascertaining the intention of the testator, the Court is always at liberty to look into the condition of his family, and of his property. In this view, the general scheme of the testator seems clear enough.

His widow was left with a large family of young children. To her he devises, for her natural life, all his real estate, his household and kitchen furniture, <fcc. &c. and all things pertaining to the plantation use; also, four negroes, such as she might select from all his negroes.

The next provision in order of time, may be considered the bequest to his children, as they become of age or marry. Reciting that he had given to his married daughter, Eliza M. two negroes, Will and Hannah, one horse, saddle and bridle, and one bed and furniture, he directs that, as each of his other children marries or arrives of age, he or she shall receive, out of his estate, precisely the same advancement, so as to make them equal with his daughter, Eliza M. Funchess.

The real and personal estate, including the homestead and everything connected with it, as specified in the first clause, was given to his wife for life, “to be kept by her in quiet and peaceable possession, undisturbed by any person *f*and, after *372her death, was directed to be divided between his four sons ; and his five daughters were *“ to*receive, in lieu of said real estate, one hundred and fifty dollars each, as their portion of said real estate” — the remainder of the personal estate which his wife might leave at her death, was to be equally divided ■ amongst testator’s heirs ; “ but should any of them die without heirs, their part is to be returned, and be equally divided amongst my heirs.”

The first question presented, relates to the payment of this sum to the daughters, in lieu and as their portion. His evident intention, as manifested in various parts of the will, was to establish equality among his children.

This sum is to be paid by the sons to the daughters, when the life estate terminates, and they (the sons) come into the en- . joyment and possession of the real estate, as provided by their father’s will.

The third and last disposing clause is as follows, viz : “ The remainder of my negroes not heretofore divided of in my will, is to be equally divided amongst my children” (naming them): *“*but should any of my aforesaid children die without an legal issue, their part is to return back, and be equally divided amongst my remaining heirs. I do give the same to them and their heirs forever.”

It should be premised that this clause follows immediately that clause of the testator’s will, which directs that two negroes, between the age of ten and twenty years, should be received by each of his children, as he or she respectively attained the age of twenty-one years, or day of marriage. Then follows this provision: *“*The remainder of my negroes not heretofore divided of in my will,” &c. &c.

The rational construction seems to the Court to be, that the complainant, as executrix, was to have charge of the negroes, giving to each child two, as they married or became of age, and furnishing each, at that time, with the other articles to which he or she should at that period become entitled. “ I desire that as each one of my children marries, or becomes of age, .they are to *373receive out of my estate two negroes,” &c. “one horse, saddle and bridle, and one bed and furniture, to make them equal with my daughter, Eliza.”

This necessarily implies that there should be in the hands of his executrix the means of giving to each child, out of the testator’s estate, the same advancement, as they respectively arrived of age, or became settled in life, which the testator had himself furnished to his daughter, Mrs. Funchess. The testator probably contemplated that, until his children reached maturity or married, they would reside with their mother at the homestead, as they had resided with him, and would be supported and educated by her as they had been by him. When he specifies what each child is to receive out of his estate, at marriage or maturity, it excludes the idea that any part of the property was to be received by such child until that period ; and it also precludes the presumption that, when that period arrived, any child should receive more than was thus specified. The scheme is very analagous to that of the testator in *Whilden*vs. *Whil-den,*(Riley Ch. Cas. 205,) although the testator has not in this will used precisely the same language to express his purposes. But, says Chancellor Harper, delivering the judgment of the Court, *“*if the testator had said nothing about the maintenance of his children, but had merely directed the estate to be vested till the youngest child should come of age or be married, the Court would, of itself, have done just what he has expressed. It would have provided for the maintanance of the children out of the income of the fund.” In the will under consideration, the testator left, substantially, every thing to his wife, during her life, except the slaves, and of these, he bequeathed to her four for life. He does not expressly direct the remaining slaves to be kept together until the youngest child marries or becomes of age, but the law puts or keeps them in the hands of the executrix, to be disposed of according to the provisions of the will. In order to enable her to execute her trust, by giving to each child, at particular periods, two negroes and other property out of his estate, she must have possession of the estate. Like any *374other trustee, she must take care of the slaves, and, although nothing is said about maintaining those of the children who are under age and unmarried, yet, as Chancellor Harper declares, the law itself would provide for their maintenance out of the income of the slaves. In this case, as I have said, I think such intention of the testator is manifestly to be inferred by collating the various provisions of the will. Nearly all the children are under age. It is unnecessary, and would be premature, to express any opinion as to the character and extent of the estate which they derive under the testator’s will.

It is ordered and decreed that the complainant carry into execution the will of her testator, according to the opinion herein-before declared. Parties to be at liberty to apply for further orders, if any such be necessary. Cost to be paid out of the estate.

It was suggested that the executrix had in hand about five hundred dollars, arising from the sales of the crop of the preceding year, hire of the negroes, &c. and that no disposition was made of this sum by the will. As to this fund, (as there is no general residuary clause,) it constitutes a case of intestacy. The fund is first applicable to the payment of the debts of the testator, and to the expenses incurred by the executrix in the discharge of her trust, including the costs and expenses of these proceedings ; the balance remaining of the five hundred dollars, is to be distributed under the Act of 1791.

The defendants, Daniel Y. Y. Funchess and Eliza M. his wife, appealed, and moved this Court to modify so much of the circuit decree as decides, that there should be no present division among testator’s children, of the slaves bequeathed in the third clause, upon the following grounds.

1. Because the expression, “ the remainder of my slaves not heretofore divided of in my will,” indicates testator’s intention to have been, that such and so many of his slaves as in the second clause he desires to be given to his children, as they respectively marry or become of age, should be retained by his executrix for that purpose, and that the remainder afore*375said, should be equally divided at once among his children, without waiting until the youngest child becomes of age, who is now about six years old.

2. Because the decree of his Honor, by thus postponing the testator’s bequest to his children in the third clause of his will, operates injuriously to the elder children, and particularly to Mrs. Funchess, to whom the bequest is now necessary and important, and works no benefit whatever to their mother or her minor children, all of whom would have the slaves, &c. bequeathed to them, which would be ample for their support.

3. Because, under the construction given by his honor, it is respectfully submitted, that the widow of the testator, and the duly qualified executrix of his estate, is obliged to act as the trustee of the estate and to hold all the negroes in trust, and to keep the estate open for many years, until the youngest child marries or becomes of age, while the slaves bequeathed to her for life, and the slaves which she should retain for the minor children, together with those which she would hold for the minors upon the division of the slaves in the third clause, as their natural guardian, would probably be as many as she could profitably manage.

*Ellis Sf Brewster,*for appellants.

*Munro*& *Dunkin,*contra.

Dunkin, Ch.

delivered the opinion of the Court.

In this case, very little need be said in addition to what has fallen from the Chancellor in his circuit decree. This decree must be modified, in one particular, so as to make it conform to the opinion of this Court.

The testator gave to his wife all his real estate, household and kitchen furniture, plantation tools of every description, provisions of all kinds, horses, hogs, cattle, and stock of every description, wagons, gears, bridles, saddles, and barouche, and every thing pertaining to the plantation use. He also gave her four negroes, to be selected by herself from among *376all his negroes. This property she was *to*have and *enjoy*during her life, and at her death, the real estate was to be equally divided among the testator’s four sons: and his five daughters are each to receive one hundred and fifty dollars in compensation for their portion of the land.

The testator then proceeds, in the second clause, to provide as *follows:*— “ As I have already given unto my daughter, Eliza M. the wife of Daniel Y. Y. Funchess, two negroes, named Will and Hannah, one horse, saddle and bridle, one bed and furniture, I further desire, that as each one of my children marries or becomes of age, they are to receive out of my estate two negroes, one boy and one girl, between the age of ten and twenty years old, one horse, saddle and bridle, one bed and furniture, to make them equal *with my said daughter,*Eliza M. the wife of Daniel Y. Y. Funchess.”

The testator then says: — “ 3d. The remainder of my ne-groes not heretofore divided of in my will, is to be equally divided amongst my children, Eliza M. Funchess, Mary Catha-rine, James Baltus, Yandy Yastine L., Elizabeth Lovicia, Rachael Owins, David Jacob, Barbara Dorcas E. E., and Ab-salome Moorer Inabinit; but should any of my children aforesaid die without,an legal issue, their part is to return back, and be equally divided amongst my remaining heirs. I do give the same to them and their heirs forever.”

One of the questions made on the circuit trial, and also on this appeal, is this: — at what time did the testator mean that this division of the remainder of his negroes should take place, and his children be put into the possession of their respective shares thereof? The will does not, in terms, fix the time, though it is positive and express as to the gift. The construction that would give to the legatees under the third clause, a present right to a partition of the negroes, disposed of in that clause, is incompatible with other important parts of the will. The testator has been impartial in the disposition of his property among his children. He seems to have contemplated a perfect equality among them. He had given to his married *377daughter, Mrs. Funchess, two negroes, a horse, saddle, &c. And his positive direction is, that as his children came of age or married, they should each receive, out of his estate, two negroes of a particular description, a horse, saddle, &c. All his children, with the exception of Mrs. Funchess, were and are still infants; the youngest not more than six years old. How can this provision be carried into effect; — how can this advancement of two negroes and the other articles, be made out of his estate to his children as they respectively come of age or marry, if the negroes are now to be divided? There is no fund in cash, or otherwise, from which this provision can be carried into effect. In fact, there is no property of any kind belonging to the estate which is to accomplish this end, unless resort is had to the negroes disposed of in the third clause. This is the view which the Chancellor has taken of this part of the subject. And in this the Court concurs.

This view of the case involves the necessary implication, that the negroes disposed of in the third clause, should remain in the hands of the executors, until the objects expressed in the second clause have been accomplished. And these are, that each one of the testator’s children shall, at the proper time, receive the advancement provided for in that clause. The means of making these advancements, are a charge upon the negroes disposed of in the third clause; which negroes are to remain in the possesion of the executors for this purpose, until the whole of this trust is performed: that is to say, until the last child entitled to take under the second clause, has received his or her advancement. After this a division may take place. In making the advancements under the second clause, the executors will resort, in the first place, to the stock of negroes belonging to the estate, for the purpose of getting negroes of a proper description to make the advancements. If none such are to be had from this source, they may be purchased from the income of the estate then on hand. If that be insufficient for this purpose, a resort may be had to some portion of the *corf us*of the estate in order to effectuate this intention of the testator. *378But in the last named contingency, application must be made to this Court. The other articles to be advanced, namely, the horse, saddle, bridle, <fcc. must be provided for in the same way, as is indicated above, in reference to the negroes to be advanced.

So far this Court concurs in the views and in the decree of the Chancellor. But what is to be done with the income of *the*negroes disposed of in the third clause, until the time of the division? A portion of it will be absorbed, from time to time, in carrying into effect the provisions of the second clause. So much of it as may be necessary, will be applied to these purposes. But what is to become of the balance, and to whom does it belong? The circuit decree gives it for the maintenance of the minor children who reside' with the widow, and who are thus entitled, according to the decree, until they are to receive, their advancements. This Court is of a different opinion. It is not so given by the terms of the will, nor is there just ground for such an implication. The legacies given in slaves in the third clause are vested legacies, subject to be divested on certain contingencies. They are given in language, which imports a right to a present division. But this clause has been construed in connection with other parts of the will; so that, although the legacies are vested, the division and possession are postponed. This postponement takes place, because the property is subject to certain charges, which have been herein declared. ’ Subject to these charges, the legatees under the third clause are entitled to an equal share of the annual income, to be paid annually as the income arises. In other words, so much of the annual income as remains, after obtaining the necessary articles for carrying into effect the provisions of the second clause, according to the rules hereinbefore laid down, must constitute a fund to be distributed so soon as the fund exists in equal shares among all the legatees mentioned in the third clause. The circuit decree is, in this respect, reformed. In all other respects, it is affirmed and the appeal dismissed.

Johnston, Dunkin and Wardlaw, CC. concurred.

*Decree modified.*