#### *R. Zimmerman and wife et al.*vs. *Elizabeth Wolfe et al.*

Negroes were conveyed by deed “ to J. M. during the term of Ms natural life, and at Ms deatli to hi. hi., Ms -wife, and the heirs of her body, and in the event of the said hi. M. departing this life, without children living at her death, then the said negroes to go to the said *J.*M. during Ms life, and at his death to be divided equally, one half to the children of J. C. and one half to the children of E. *Z*— Held, that the limitation over to the children of J. C. and E. Z. was valid.

*Before*Dargan, Ch. *at Orangeburg, February,*1852.

Dargan, Ch. Conrad Holman, of St. Matthew’s Parish, departed this life on or about 19th August, 1816, leaving a personal *330estate, consisting principally of negroes.' He died intestate, and bis son, John C. Holman, and bis daughter, Elizabeth, who after-wards intermarried with Daniel Zimmerman, and his daughter, Mary, who afterwards intermarried with John Murph, were his distributees. On the 8th June, 1821, the parties, viz: the son and daughters of the intestate, with their husbands, made a partition of the negroes among themselves, by a tripartite indenture, duly executed, by the terms of which indenture they mutually agreed to receive their respective shares, subject to certain contingent limitations prescribed therein. The part of said deed, which is now the subject of consideration, is to the following effect: It transfers certain negroes, who are specially named, and their future increase to John Murph and Mary, his wife, as their share, — “ to the said John Murph, during the term of his natural life, and» at his death to the said Mary and the heirs of her body, and in the event of the said Mary departing this life without children living at her death, then the said negroes to go to the said John Murph during his life, and at his death to be divided equally, one half to the children of the said John C. Holman, and one half to the children of the said Elizabeth Zimmerman; and if either the said John C. or the said Elizabeth should depart this life without children living at his or her death, then the said negroes to go to the children of the other.”

John Murph departed this life in the year 1844, leaving his wife, the said Mary, surviving him; and in the year 1848, she departed this life without leaving any children surviving her, and being in possession of the negroes at the time of her death.

John C. Holman died in the year 1839. He left children as follows: Elizabeth Holman, who has intermarried with Russel Zimmerman, and a son, John Holman. These are the complainants. He also left a daughter, Catharine, who intermarried with one Wolfe, and has died leaving two children, Elizabeth and Catharine Wolfe, who are defendants.

The complainants allege that Mary Murph, in her life time, made a parol gift of the said slaves in their behalf, accompanied *331by delivery. They contend that sbe had a right to make such a disposition of the negroes, as according to their construction of the deed, her estate in the said negroes was absolute in the event she survived her husband, which she did. They further charge that they have heard that the defendants dispute their title to the negroes under said parol gift. And they prefer their bill to quiet their title to the said negroes, as against the claim sot up by the defendants; and for a partition, if it should be decided that the defendants. are entitled to a share under the limitations of the deed.

Daniel Zimmerman and his wife, Elizabeth, are both dead.— They left children, who also would be interested in the issues made in these proceedings; but in answer to a question by the Court, “ Why were they not made parties ?” it was said that Mrs. Murph in her life time, and in anticipation of her death, delivered certain of the negroes to the children of Mrs. Zimmerman, and to the surviving childen of John C. Holman, (who are the complainants,) the negroes mentioned in the bill; and that both the complainants and the Holmans agreed to receive the negroes delivered to them in her life time as their interest and share of the negroes limited to them by the deed. From this statement it would seem that the Zimmermans are satisfied, and the Holmans, including the defendants, are also satisfied, so far as regards the partition between the two branches of the family. The matter to be adjudged is whether the Holman share of the negro property of Mrs. Murph is subject to further partition, so that one third part thereof shall be assigned to the defendants, who'are the representatives of Catharine Wolfe, a deceased daughter of John C. Holman.

Whether the defendants are so entitled will depend upon the construction of the deed. If the deed had conveyed the negroes to John Murph during his life, and at his death to Mary Murph and the heirs of her body, and in ,the event of dying without children living at her death, then over, I apprehend, there could not have been a doubt as to the validity of the limitations; and these are *332substantially the provisions of the deed. I have stated them precisely as they are, with the exception of the life estate to John. Murph, interposed between the estate of Mary Murph and the limitations in favor of the ulterior remainder-man. But the life estate given to John Murph in that connexion, is a mere repetition. The first estate conveyed to . him is to him for life, absolutely and independently of his surviving or of his not surviving his wife; and the repetition of the grant to him for life, in the subsequent clause, gives him neither more nor less than he takes by the first. He was to have a life estate by the first clause, whether he or she were the survivor, and whether she left children or not. If she died before her husband, without leaving children living at her death, then at the expiration of the estate already given to him for life, the limitation over*was to take effect. This, I think, is the true reading of the deed, so far as relates to the clause in question.

If Mrs. Murph had left children surviving her, whether they would have been entitled to take as purchasers, I am not under the necessity of deciding. Such, however, I think, would have been the result. Under the expression, *u*the heirs of her body,” the estate is given to her issue, which, if the description had stopped there, would have been too indefinite, and would have failed for remoteness. But the condition which follows, viz: that if she dies without children living at her death, the estate was to go over by way of remainder to persons who, if they took at all, must take within the period prescribed against remoteness, restricts the generality and vagueness of the expression, “ heirs of her body,” and makes it mean those very children, the failure of whom, at her death, would cause the estate to go over. The term “ heirs of her body,” thus explained, means children living at her death, who are in this way sufficiently described as a class, and to whom, without resort to implication, an estate is directly given as purchasers. According to this construction, Mrs. Murph would in no event have taken more than a life estate. Under this view of the case, there was an estate to John Murph for life, remain*333der to Mary Murph for life, remainder to ber children living at her death in fee; and if she should die without children living at her death, remainder to a class of persons, of which the defendants constitute a portion. But the right of the defendants, as I have already intimated, does not depend upon a construction which would make Mrs. Murph take a life estate, with remainder to 'her children (if she left any) in fee. The same result would follow, if it was, intended that she should take a fee, provided she left children surviving her ; for in that case it would have been a fee defeasible upon the event of her dying without children living at her death. And the condition hag. happened.j|pon which the estate was to pass away from herí' „ .If, this, conscription should prevail, then there was an estate ‡) John Murph'for j|fe, remainder to Mary Murph in fee, but in ’jjhe^qygnklshev staíld die without children living at her death,¡| remainder to th| children of John C. Holman and of Mary Zimjmdjijnam

In the opinion of the Court, the 'dpf@nd.ait& atnAntitled to one third part of the negroes described in the bill, and to an account of the hire and profits of the said negroes, from the death of Mary Murph. And it is so decreed.

It is further ordered, that the parties to these proceeding have leave to apply at the foot of this decree, for all orders necessary and proper to carry the same into effect.

The complainants appealed, on the following grounds:

1. Because under a proper construction of the deed in' question, and on the case as made, the defendants are not entitled to one third part of the negroes described in the bill.

2. Because the decree is, in other respects, erroneous aud contrary to law and equity.

3. Because there being no privity between complainants and defendants, and the slaves having been given to complainants in. the life time of Mrs. Murph, and the complainants being stake holders, they should not be charged with hire for them.

*jKeitt,*Whaley, for appellants.

■-, contra.

*334
      *Per Quriam.*

This Court concurs in the decree of the Chancellor ; and it is ordered that the same be affirmed, and the appeal dismissed.

JOHNSTON, UuNKiN, DaegaN and WaRDLaw, CC., concurring.

*Appeal dismissed.*