#### *F. Crossby & others*vs. *Abram Smith & others.*

Testator bequeathed the whole of his personal estate to his wife for life, the same “ to be equally divided, at my wife’s decease, among all my *children“*one reserve I wish my executors to enforce; that is, if either of my lawful heirs should die, leaving issue behind them, before a distribution should take place, as I have before mentioned, for their issue or heirs not to come in for their parent’s share of my propertytestator left eight children, three of whom died before the tenant for life, leaving issue. Held,, that the issue of tire three deceased children were not excluded by the terms of tire will, but that they were entitled to the shares their parents would have taken had they survived the tenant for life.

A man may dispose of his property by will as he pleases; but if he makes no disposition of the property, he cannot exclude those, whom the law appoints to the succession, by a mere declaration that they shall not take.

*Before*Johnston, Ch. *at*Beaufort, February, 1850.

The decree of his Honor, the circuit Chancellor, is as follows.

Johnston, Ch. This is a very perplexing case, and arises out of circumstances, whose original obscurity has been greatly increased by the lapse of time.

Samuel Smith, the common ancestor of the litigating parties, died in the latter part of 1815, leaving a will, executed by him the 15th of September of that year, to which I shall hereafter advert, and leaving a widow, Sarah, and eight children, to wit: five sons, Abram, James, Charles, William and Benjamin; and three daughters, Nancy Mew, (a widow) Elizabeth, who intermarried with one Buler, and Mary, now wife of Dr. Du-pont.

*245The testator was, at his death, possessed of a tract of land, containing about one thousand acres, and of about sixteen slaves, besides cattle and other personalty.

His will, which was attested by only two witnesses, and was, therefore, insufficient as to the land, was in the singular terms folloAving:

*“ First.*I give and bequeath unto my beloved wife, Sarah Smith, all my property, both real and personal, and stock of every description, which I was possessed of at my decease, during her natural life.

*“ Secondly.*I give and bequeath unto my two youngest sons, ’ Charles and James, one negro girl, by the name of Clarista, her and her increase.

“ *Thirdly.*I give and bequeath unto my three sons, Benjamin, Charles and James, the plantation and tract of land, whereon I did reside, for to be equally divided among the three; and the remaining part of my property to be equally divided, at my wife’s decease, among all my children; excepting that I do reserve, out of the last mentioned property, fifty dollars to my daughter, Elizabeth, and fifty dollars unto my daughter, Mary, as an equivalent for their not having had any land given them, over and obove the others; on account of the others having land given to them, as William, Nancy, and Abram had.

“ It is my will and desire, that all the property be kept together, during my wife’s lifetime ; (if her death take place before my youngest son, James, should arrive at the age of eighteen years, it is my will, that it should be kept together, until he arrives at that age); and then, the distribution to take place, as before mentioned.

“ *One reserve I wish my executors to enforce: that is, if either of my lawful heirs should die, leaving issue behind them, before a distribution should take place, as I have before mentioned, for their issue or heirs not to come in for their parent’s share of my property.*

“ I do appoint my wife, my son, William, Abram Smith’s my true and lawful executors to carry my said will into full execution, according to my will and desire.”

*246The will was admitted to probate the 2d of October, 1815, and William Smith qualified as executor. Sarah Smith qualified as executrix, the 27th of November following, and took possession of the property, and continued in the possession of it until some time in 1831. In that year, all the children of the testator being alive and of full age, a division was made of the *negroes;*though Sarah Smith, the widow, who was entitled to a life estate in them, was still alive. It was made by consent of all parties, though the terms of it are, as might very well be expected from the lapse of time, and the death of witnesses, ’quite obscure. It appears, however, that Clarister and her children were first set aside, and divided by the two sons, Charles and James, between themselves. Then the grown slaves, Stephen, Rose and Nelly, were set aside, and retained by the widow. The rest were appraised by three persons, chosen for that purpose, and divided, with reference to their value, among the eight children of the testator.

The widow remained in the possession of the land, and the three negroes; who increased before her death to thirteen. On the 11th of September, 1844, she executed a voluntary deed, by which she conveyed Rachel, one of this stock, with her future increase, to George H. Smith, a son of her son, William, in trust, to permit her to have the use and profits of the property during her life, with an absolute reversion of it to himself upon her death. With this exception, she remained in possession of the slaves, retained by her in the division of 1831, with their increase, until the 2d of August, 1848, when she died intestate.

At the time of her death, all her children, who were also the children of the testator, were alive, except three of her sons, Charles, Benjamin and William, who predeceased her: — the first-leaving five, and each of the other two, leaving six children.

Immediately before the death of the widow, Abram Smith, who had hitherto neglected to qualify under his appointment, as one of his father’s executors, came from Alabama, where he resided, and on the 10th of July, 1848, (the month preceding his mother’s death) qualified, and obtained letters testamentary: *247and, upon his mother’s death, assumed control of the thirteen negroes in her possession at her decease, claiming them as parcel of his father’s estate, and divisible under his will among his then surviving children, in exclusion of the issue of Charles, William and Benjamin, the three sons who died during the life of the widow and life-tenant.

James Smith, the other surviving son of the testator, took out letters of administration on his mother’s estate, hut represented the negroes as no part of it; and gave bond corresponding only to some inconsiderable articles of property, which he regarded as constituting the whole estate.

In this state of affairs, the children of the deceased sons, Charles, William and Benjamin, filed this bill against the surviving children of the testator.

The object is, to be let into a share of the thirteen slaves, with their increase, and also to a rateable share of their hire, since Abram Smith interfered with them; and to have partition of the lands.

There is no doubt about the latter. The will was not sufficient to extend to it, being attested by only two witnesses. The land is, therefore, intestate property, and the parties may, upon application, have a writ for the partition of it. Such I understood to be their impression at the hearing, and, therefore, nothing was said in argument upon the subject of the realty.

The contest related exclusively to the negroes.

The plaintiffs in this bill represent, that the division of 1831 was made under an agreement of the following character:— that the children were to take, and did take, the slaves allotted to them, absolutely, and in advance of, and by way of substitution for, the division which the will directed to be made at their mother’s death; and that, in consideration of being allowed by her to have this anticipated enjoyment of their rights, they agreed, that she should retain the three negroes, left in her hands, as her absolute property in perpetuity. If this was so, there is no doubt, in my judgment, that the children being all of age at the time, were competent to make such a stipulation : and the *248consequence must be, that the slave, conveyed to George H. Smith, was well conveyed, and that those, remaining in Mrs. Smith’s possession, must be distributed among all the parties, as part of her intestate estate.

The plaintiffs further contended at the hearing, that, even if the slaves retained by Mrs. Smith did not become her absolute property, but remained as parcel of the testator’s estate, they, as issue of the three deceased sons, were not effectually excluded from an interest in them.

All of the defendants, except Dupont and wife, insist, that by the partition of 1831, the slaves allotted to the children were intended to be, and were, vested in them absolutely; but' that those retained by the widow were retained by her for life only, being merely rese'rved from the partition, and subject to be partitioned at her death under the will; which, they further contended, excluded the issue of pr-edeceased children from participating in them.

Dupont and wife, while they agree that the children of William, Charles and Benjamín are excluded by the will, and the interest in the property confined to the surviving children of the testator, deny that any part of the property divided in 1831, was intended to vest absolutely in any of the parties, (widow or children) who received it; and contend, that all the property was to be brought back, and fully and effectually divided under the will upon the widow’s death.

It is reasonable to suppose, indeed it is stated in some of the pleadings, that, in consequence of the unequal increase, and improvement in value, of the slaves received by the children, it may now be to the advantage of some of the parties to have a re-partition of them; and hence the different grounds assumed by the defendants.

I shall first dispose of the construction of the testator’s will.

Do the words of the will intend to exclude, and do they effectually exclude, the issue of such of the testator’s children as died before the expiration of his wife’s life estate ?

I was, at the hearing, possessed of some such notion as this:— *249that, by the words of the will preceding this very extraordinary clause, under which the issue are supposed to he excluded, a life estate is given to the widow, followed by a plain remainder to all the children, without any condition or contingency, and, therefore, importing to be a vested remainder in all of them. If such a remainder had been created, without more, the interest in it must have attached, upon the death of the testator, in all the children, all of whom were then alive; and upon their subsequent death, their shares would have passed by operation of law to their children, as an incident of the property given. This would certainly have been the result, if the extraordinary clause referred to had not been subsequently inserted in the will. The question, then, was upon the effect of that clause. It does not (in express terms at least) revoke the shares previously given to the children, or any of them. Nor does it limit the shares of any of them, who might happen to die before the period of division among them, to the survivors. But leaving their interests precisely in the condition in which they were placed by the words which created them, — it simply declares that their issue, whom the law declares entitled to their property, upon their death, shall not take it.

A man may give his property to whom he pleases ; but when he does give it, he has no right to arrest the operation of the law upon the property as given. A man may dispose of his property as he pleases; but he has no right to say, that the law shall not operate, where, and so far as, he makes no disposition. A man may make a will, if he pleases, or let it alone; but if he makes one, it is active, only as far as it disposes of his property: it is inoperative where it attempts a repeal of the law, applicable to the dispositions actually made.

If a testator should content himself with a single clause,, cutting off his heirs, (as the phrase is,) and declaring that none of his kin should have any of the property, — without declaring to whom it should go — his will would be simply nugatory, and no will. Being no legislator, his attempt to repeal the law would be a mere usurpation, and only innocent, because ineffectual.

*250There are many authorities upon this subject, if authority were needed. Some of them are referred to, I think, in *Hall*vs. *Hall.*The subject is also slightly considered in the first report of *Gordon*vs. *Blackman,*where the testator, to fortify an attempted emancipation, and to take away the right of the nest of kin to defeat it, cut them off by his will. The emancipation was judged of by the direct dispositions relating to it; and the nest of kin, notwithstanding the attempt to esclude them, took the property.

But, though I have 'struggled to sustain the plaintiffs’s claim, I am afraid I should be going too far, if I were to apply this principle to this will. It is impossible to say, that the testator did not intend to esclude the issue. His words, though obscure and singular in many respects, are clear enough upon this point. The intention must prevail, if the law will allow it: and the construction must be upon the whole will, taken in at one view; and not upon its parts considered separately. Taking the clause referred to, in connesion with the preceding dispositions, I am reluctantly compelled to admit (but not without some hesitation) that the better construction of the whole is, that the children, intended in the prior clauses, were children who should survive the wife.

Then, it becomes necessary to consider the character of the division made in 1831.

What was the intention of the parties *1*Was it their intention to take any portion of the slaves divided on that occasion— either that allotted to the children, or that retained by the widow; and if so, which of these portions, — out of the operation of the testamentary clause, by which it was subject to division at the widow’s death ?

In the obscurity of the testimony, as to what was expressly agreed upon, it may be useful to look, in the first place, to the condition of the parties and of the property at the time, as represented by the witnesses.

It is said that the widow was ninety years old, or upwards, in 1848, when she died. She must, therefore, have been over *251seventy, when this division of 1831 was made. It appears that most of the negroes were young, many of them incapable of laboring, and that the few, who by age were capable, either could not, or for want of a better control than their aged mistress was able to exert, would not, make crops adequate to the support of themselves and the young negroes.

It is natural to suppose that, under these circumstances, she should desire to be relieved of the supernumerary and unproductive slaves, and to retain the others — thus increasing their efficiency towards her own support.

Her children are represented to have been in circumstances, which, though perhaps not strictly needy, were far from warranting them in taking the young negroes, and assuming the expense of rearing them, unless they received them as their own property.

The division was effected (except as to Clarista — who, by-the-bye, had two children, at least, as clogs upon her,) by leaving the most efficient, and probably most reliable, negroes, in the hands of their aged mistress — as was said by some of the parties, “ for her support — while the young and inef^cient and expensive class were appraised, and divided among the children.

Not a witness is able to recollect any express agreement among the parties: and this observation applies as well to the only one of the three appraisers now living, as to the rest of the witnesses examined.

At this distance of time, what are we to make of this ?

Are we to suppose that the children took, or would have taken, the young negroes, and incurred the expense and trouble, represented with so much probability of truth in sorne of the answers, of raising them — to be brought back at any uncertain time to be re-partitioned ? If the negroes, which they got, were not to be charged to them as their own. why were they appraised ?

In a transaction of this age, and where there is so little express testimony, and the parties have chosen to leave it in obscurity, when they might have made it clear, I think the *252safest course is to hold them to have done, what it was prudent and natural for them to have done under the circumstances:— and I shall conclude, that the children took the negroes as their absolute property.

Were those retained by the widow, intended to be released to her, as her absolute property ?

If her delivery of those which she gave up to the children, could, under the circumstances, be considered as a purchase of those which she retained — if she lost any thing by the transaction — we might be led to answer this question affirmatively. But it was a relief to her. She made every way by the transaction, though she retained the three negroes under the tenure, for life only.

These three were not valued. They were not brought into the division. They were simply retained. If none of them had been given up by her, all would have remained in her hands, subject to the will. Part were given up. In the absence of any stipulation, and in the absence of circumstances to render any change of tenure probable, what are we to conclude, but that those retained, were retained subject to the will ?

My conclusion is, that Mrs. Smith never obtained any addition to her interest for life in the slaves left in her hands in 1831.

That her alienation of *those,*converted by the deed of 1844 to George H. Smith, was unauthorized and should be set aside ; and that those slaves, together with those remaining in her hands at her death, are subject to partition among the children of the testator, who survived her: and it is so decreed; and let a writ go for the partition of them.

It is further ordered, that the writs of *ne exeat*and injunction mentioned in the pleadings, (if any were granted) be dissolved.

And that the parties have leave to apply for a writ for the partition of the land, as intestate property of the testator, among all his distributees.

Each party to pay his own costs.

'The complainants appealed, on the following grounds.

*2531st. Because his Honor decreed that, by the partition of the negroes of the estate of Samuel Smith between his widow and children, the widow took only a life estate in the portion allotted to her, and that the same was distributable at her death amongst the surviving children of the said Samuel Smith, according to the provisions of his will: whereas, it is respectfully submitted, that by the said partition, the children surrendered whatever right they may have had, under said will, to the negroes allotted to the widow, Sarah Smith; that the same became her absolute property, and were distributable at her death, as her estate, of which she died intestate.

2d. Because his Honor decreed, that by the following clause of testator’s will, “ if either of my lawful heirs should die, leaving issue behind them, before a distribution should take place, as I have before mentioned, for their issue or heirs not to come in for their parent’s share of my property,” the issue of such testator’s *children*as died in the lifetime of the widow, were effectually excluded, and that the shares to which such children would have been entitled, were bequeathed to the surviving children.

Whereas, it is respectfully submitted, that there is no limita, tion to survivors in said will, and that said clause is simply nugatory and inoperative; and the issue of deceased children not thereby excluded.

3d. Because, it is respectfully submitted, that said clause of exclusion is void for vagueness, uncertainty and remoteness; and is contrary to the policy of the law.

4th. Because a distribution of testator’s estate had taken place before the death of any of his children, with their consent, when they were of full age and free to contract; and the period limited in the said will, at which the said clause of exclusion was to take effect, had passed by before the death of any of testator’s children.

5th. Because the decree of his Honor is, in other respects, contrary to law and the evidence.

*F. TV. Fielding,*for appellants.

*Treville, Martin,*contra.

*254Wardia-w, Oh.

delivered the opinion of the Court.

This Court is satified with the reasoning and conclusion of the circuit decree, as to *the*character of the partition *made in*1831. • ,

The remaining question in the case is, whether the will of Samuel Smith gives the residue of the estate to his surviving children, in exclusion of the children of his three sons who died after the death of the testator and before the death of the widow, when the estate was to he distributed. The negroes retained by the widow in 1831, with their increase, constitute the subject of dispute : and the decision turns on the construction of the following clauses of the *will:*— “ the remaining part of my property” (after the life *estate in the wife,*and some small legacies,) “ to be equally divided, at my wife’s decease, among all my *children“*one reserve I wish my executors to enforce, ■ that is, if either of my lawful heirs should die, leaving issue behind them, before a distribution should take place, as I have before mentioned, for their issue or heirs not to come in for their parent’s share of my property.” The former clause, considered separately, plainly gives to all of the children living at the death of the testator, as tenants in common, a vested remainder, which, upon the subsequent death of any of the children would pass, not to the surviving children, but to the legal representatives of the children so dying. The latter clause, palpably manifests the intention of testator to exclude from all share the descendants of such of his children as should die before the period appointed for the distribution of his estate; — but it stops there. It contains no revocation of the shares previously given to the children dying before distribution, but rather recognizes their title by the use of the terms “ their parents’s shares.” It does not give such shares to the surviving children, nor to any other-person whatsoever. The language is simply that of negation . and exclusion, and not of disposition. The expression of the purpose not to give to one person, imports no purpose to give to another. It is true, that the construction must be upon the whole will, and not upon the clauses considered separately, but *255the addition of a cipher makes no increase of the sum; and a clause, containing no gift, cannot transport a gift to another clause. According to this, the clauses, construed in connection, leave the objects of testator’s bounty precisely as they were described in the former clause, unless the naked declaration in the latter clause,, that those whom the law appoints to the succession shall not take, be effectual to exclude them. On that point the principle is well stated in the circuit decree: *“*A man may dispose of his property as he pleases, but he has no right to say, that the law shall not operate, where, and so far as, he makes no disposition.” *“*Being no legislator, his attempt to repeal the law would be a mere usurpation, and only innocent because ineffectual.” If a deed of settlement gave one a general power of appointment as tó the estate settled, and provided that, in the absence of appointment, the estate should go to persons therein named : the title of these persons would not be defeated, if the only thing in the shape of appointment, were the expression, by him having the power, of his dissatisfaction, however strong, that they should enjoy the estate. So the law authorizes a proprietor to regulate the disposition of his estate, after his death, by positive donations, but itself appoints to the succession, if he does not declare the objects of his bounty: and his disapproval, by itself, shall not defeat the operation of the law. Negative words do not amount to a gift.

In *Goodtitle*vs. Pugh, (3 Bro. P. C. 454,) the will contained words of exclusion in reference to the son and heir, and others which were construed by the Court of King’s Bench to be a disposition in favor of the persons who were next to the son in the line of descent, — yet the House of Lords determined that the son was not excluded.

In *Sibley*vs. Cook, (3 Atk. 573,) Lord Hardwicke says; *“*If a man devises a real estate to J. S. and his heirs, and signifies or indicates his intention that if J. S. die before him it should not be a lapsed legacy,'yet unless he has nominated another legatee, the heir at law is not excluded, notwithstanding the testator’s declaration. So in the bequest of a personal *256legacy to A. though the testator should show an intention that the legacy should not lapse in case A. die before him, yet this is not sufficient to exclude the next of kin.” See *Elliot*vs. *Da*venport, (1 P. Wms. 83).

In *Gordon*vs. Blackman, (1 Rich. Eq. 63,) the testator, in pursuance of his purpose to emancipate his slaves, had expressly excluded his next of kin, and the Court said: “ It is not in the power of a testator to oust his next of kin of their rights under the law of the land, but by giving another direction to his property by legal and valid provisions; as, for instance, by giving the property to some other person, or directing that it shall be employed for some lawful purpose inconsistent with the rights of his kinsman.” The same doctrine was asserted in *Lanham*vs. Meacham, (MS. Col. May, 1850). *(a)*

We are led to the conclusion, that the Chancellor was right in the opinion entertained at the hearing: which he aftewards abandoned with reluctance and hesitation.

It is ordered and decreed, that a writ of partition be issued, to divide the land described in the pleading's, and the negroes retained by the widow, Sarah Smith, at the partition in 1831, with their increase, among the parties; so that the five children of Charles Smith shall take among them one-eighth part; the six children of Benjamin Smith among them one-eighth part; the six children of William Smith among them one-eighth part ; and each of the five children of the testator one-eighth part: that the matters of account be referred to the Commissioner: that the costs be paid out of the estate to be divided according to the interest of the parties: and that the circuit decree be so modified, and in all other respects he affirmed.

Johnston and Dunkin, CO. concurred.

Daegan, Ch. absent at the hearing.

*Decree modified.*

(a)

4 Strob. Eq. 203.