[Present, Chancellors RuIiedge, Buhke and Mahsium,.]

NOVEMB. 1800.

#### William Brailsford, and Maria his wife, Devisee and Legatee of Daniel Heyward, deceased, *vs.*Thomas Heyward, Executor of Daniel Heyward, deceased.

The testator devised certain real and personal estates to trustees, to hold to the use of his wife during her life, and at her death, to the youngest child of testator, who should attain 21 years of age. The wife died, and also the two youngest children, under 21 years of age. The next child, having-attained 21, claimed the estates, and the inter» mediate rents and profits. The court decreed that she was entitled to the rents and profits, (which alone were in contest) ag.lnst the claims of the lieir at law, and of the residuary devisees and legatees,

THE complainants bill states, that Daniel Heyward, being seized and possessed of a considerable real and personal estate, duly made his will, dated 7th June, 1776, and thereby devised to his son Thomas, and in trust for the testator’s wife, (in lieu of dower) during life, his plantation called Rose Hill, together with all the slaves, stock, and plantation utensils thereto belonging, and at her death, he gave the same to his youngest child that should attain the age of 21 years, and his or her lawful issue. That said plantation, slaves, &c. were, by virtue of said will, in the possession of said widow, until her death in the spring of 178.8.

Testator also devised and bequeathed to his wife, for life, his house and lot in Charleston, with furniture, servants, &c. and at her death, to his next youngest child, who should attain 21 years of age, and to the lawful issue.

That testator also bequeathed as follows, “ I will to my “ sons Thomas and William, in trust for the use of my “ daughter Elizabeth, during her natural life, the follow-u ing lands, slaves, stock, See. thereon, and appurtenances “ thereunto *belonging;*and at her death, I give the land “ to the male heir of her body lawfully begotten, when he. *19« shall attain to the age of 21 years, and for want of such, “ to the eldest female that shall attain to that age, or her *il*lawful issue, if she should leave such before she attains <c that age, and the slaves, &c. to be divided between the ° % ^ “ heirs as above mentioned; and in case of no such heirs, “ then I give the land and slaves to my youngest child “ that shall attain to the age of 21 years, viz :■ — my plan- “ tation or tract of land, on Portroyal Island, containing “ 526 acres ; two tracts of land, originally granted to John *u*Linder, near O’Ketty creek — one containing 450, and “ the other 150 acres — one negro lad Scipio,the carpenter, “ and one girl Eliza.”

The testator also devised the remainder of his estate, real and personal, to his sons James and Nathaniel, to be divided between them. And he also gave his executors full power to act, do with, and dispose of the yearly product of his estate, for the benefit of his heirs, mentioned in his will.

That the testator died some time about the 11th of Oct. *1777,*leaving said will in force, (except as the same is altered by two codicils, neither of which relate to the said devises) ; and did nominate his sons Thomas, Daniel, and William, and Mr. Keating Simons, as executors.-— That Thomas and William only qualified.

That defendant Thomas Heyward, took upon himself the execution of said will, and possessed himself of all the testators estate, and particularly that part given to his daughter Elizabeth, and also after the death of the widow, of that given to her for life.

That said Elizabeth Heyward died some time in the year 1780, without issue, and never having attained 21.

That Benjamin, the youngest child of said testator, also died some time in Sept. 1796, under 21, and without issue. That by the death of said Elizabeth and Benjamin, complainant Maria, (being the youngest child, who has attained 21,) is entitled to said Rose-Hill plantation, slaves, See. and to the plantations, stock, slaves, &c. left to *20said Elizabeth, and to the crops, profits, and emoluments^, since they came in possession *of*defendant.

That at the death of testator, there wore on Portroya! plantation, besides cattle-, hogs, and sheep, 53 negroes, named in the bill, as appears by the inventory. On Rose-rotation, ^cre were also at the death of testator, exclusive of cattle, hogs, and sheep, forty-one negroes also named, as appears by the inventory.

Complainant William saitb, that he hath married the complainant Maria, whereby in right of his wife, he became entitled to said devised property.

That complainants applied to defendant for an account of the crops, profits, and emoluments arising from the cultivation of said plantations, and from the labor of the slaves, and for an account of the ¡application thereof, and for payment of the balance, and for an assignment of such part as consists in securities.

The bill charges that complainants are entitled to said crops. That said crops never belonged to said Benjamin, and could not be. spent for his use, as he never arrived at the age of 21, and the estate could not therefore vest in him. That the fund arising from the Callewashie plantation, specifically devised to said Benjamin, was the proper one for his support.

.That the accounts of the funds claimed, ought to have been kept separate from the property of said Benjamin, as they were the property of complainant Maria, or of her brothers, as Benjamin could not have been the devisee contemplated, not being in existence when the will was made; but even if the negroes have worked together, it cannot be difficult to ascertain the relative proportions. The bill further charges that considerable crops have been made on these estates, to which complainants are entitled, and for which the défendant ought to account.

That though defendant in a letter of .the 24th December, T/96, admitted the right of complainants to the estates in question, he has since refused to give them possession,,

*21The bill charges, that defendant has never rendered any account in the ordinary’s office, though by law he is bound to do it annually.

That on Cole’s Island, belonging to the estate of said teatator, there were about thirty negroes ; that neither Coles’s Island nor. the negroes thereon, are mentioned in said will, nor do complainants know to whom they belonged. That for some particular reasons, said land and negroes were conveyed in trust, and were in case of Benjamin’s death, to be divided among the testator’s *children;*but whether among the whole, or among part only, complainants cannot say. That defendant has, since the death of Benjamin and James Heyward, divided said land and negroes among the children of his brother William Heyr Ward, deceased, Nathaniel Heyward, and himself, and utterly excluded complainants.

The bill charges, that complainants are entitled to an equal proportion of said land and negroes.

The bill prays that defendant may account for all the crops which have been made on Portroyal plantation, as also on Cole’s Island, since testator’s death, and for all the crops on Rose-Hill place, since the death of the widow.

That he may pay interest on the monies ^arising from such crops and labor) which have come to his hands, or received for his use, and that he may pay complainants what shall appear to be due.

That he may discover under what trust Cole’s Island, and the negroes thereon were held, and produce the trust deed; and should complainants be entitled to any part thereof, that he may be directed to put the same in their possession.

That complainants may be let into possession of the real estate, negroes and personal property, which they (in right of complainant Maria, as the youngest child, who has arrived at 21) are entitled to --and for general relief.

The defendant, in his answer, admitted that his father Mr. Daniel Heyward, made, and duly executed the will *22set forth in part by the complainants, and departed this *ea^nS same *n full force, except so far as the same was modified by a codicil, executed afterwards, wherein and whereby he provides for a child, with whom his wife was then pregnant, who was bom after the execu-ti°n of the said codicil, and being a son, was named Benjamin. After the birth of Benjamin, the testator added another codicil to his wili, by which he devised the Cal-lewashie estate to Benjamin, and his heirs, but if he died under age, See. it was devised over to testator’s grand-son,. Daniel Heyward.

The defendant admits, that at.the death of the testator, in the year 1777, Elizabeth and Benjamin were his two youngest children, and that Elizabeth died in the year 1780, under age, unmarried, and without issue. That the widow of the testator died in 1788, and Benjamin died in the month af September, 1796, underage, unmarried, and without issue, and that the complainants thereupon became entitled under the will of the testator, to the Rose Hill and Portroyal *estates;*the complainant, Maria, being the youngest child of the testator, who had attained : 21 years of age.

The defendant denies the right of the complainants to the crops and emoluments of those estates, till the death of Benjamin, the youngest child, in the year 1796. For as ha answered the description of the youngest child, he had the best right to them, until his death.

The defendant states, that with respect to Cole’s Island, it was devised by the testator, in the codicil to his will, to his son Daniel. But he also executed a deed, conveying Cole’s Island to trustees, in trust for testator’s son Benjamin, in case he lived ; but if he died, the same should go according to the codicil. The defendant submits that upon the death of Benjamin, under age, and without issue, the deed was cancelled, and that Cole’s Island went according to the directions of the codicil, to the said Daniel. But he being- dead, without issue, before the abolition of the rights of primogeniture. Cole’s Island became the pro-*23U -i’Olt *h*bk William pertyoihb two brothers, of the and the defendant Thomas. But tin.!. if the deed should be considerd valid and operative, the propeity would divisible among Benjamin’s legal representatives.

The defendant requests of the court that the complainant William Brailsford may be required to make a settlement of the estates of Rose Hill and Portrayal, on his wife Maria and her children.

The testator devised to his sons James and Nathaniel, the remander of his estate, real and personal, to be divided between them. And he gave his executors, “full power to act, do with, and dispose of the yearly product of his estate, for the benefit of his heirs abovementioned.”

Mr. Parker and Mr. Gaillard argued for the complainants.

The right of the complainants to the property is not questioned. The answer admits their right. But the intermediate profits, from-the death of the testator to the death of the son Benjamin, under age, when the estates vested in the complainant Maria, are denied to belong to the complainants. '

It is admitted that this depends upon the intention of the testator, and that if that intention is not clear, to pass the profits, they must go to the residuary devisees and legatees, or to the heir at law. But the intention is clear in this case, that the intermediate profits should go to the person who should ultimately answer the description of the youngest child who should attain 21 years of age, and be thus entitled to the estate itself.

It is manifest that the testator meant to dispose of his whole estate, for he says, “ as to all my worldly estate,” I give, &c. See Cowper, 356. The devise is to trustees for his wife; and at her death, to the.youngest child, who should attain 21 years. This is a contingent remainder, in the hands of the trustees, of a trust estate, co-extensive with the objects of the devise. The devise to the executors in trust docs not contain words of inheritance to them. But as it was to support an inheritable estate, it must .be *24co-extensive, to answer the purposes oi the creation of the trust. ' The trust goes with tut estate, however worded, tili contingency happened, on which it was to determine, court would even add words to make the trust coextensive with the estate. A trust may be in fee without the word heirs, or other words of inheritance. See 2 Stra. 798. 3 Burr. 1684. Even if a trustee be not named, the heir would be made a trustee by the court, to give effect to the intention.

But if it were not so, there was such a devise to the executors, as gave them at least a life estate; and the executor, Thomas HeyWard, surviving the contingency, kept up the trust, till the estate vested in Maria Heyward, on the happening of the contingency. That this was a contingent remainder is clear. See Fearne on remain, p. 3, 5th edition. See also, p. 230, 4th edition. The rule is, that the devise cannot be construed to be an execu-tory devise, if it can'take effect, as a contingent remainder. See Fonb. 97. In this case the free-held having vested in the trustee, it has taken effect as a contingent remainder.

The youth of the children, intended to be provided for, seems to have required that the trustee should take the legal estate for life, or until the contingency happened, when the estate was to vest.

The estate did not vest in the son and devisee, Benjamin *;*for when the remainder is limited to a person not ascertained, it cannot vest. See Fearne 458, 5t.h edition, and 467, 9. The estate was contingent, till it should be ascertained whether Benjamin should attain 21 years of age. He did not attain it, and the estate never vested in him.

The whole interest was transferred *to*the trustee, for the benefit of the person who should be entitled to take the estate. The produce therefore must follow it.

If the profits be not given to the youngest child, who attained 21 years, the v/iil of the testator will be defeated;for they were the peculiar objects of the concern of the *25testator in the devises under consideration. The .residuary devisees and legatees were not at all in view. They were abundantly provided for in the will, and the residuary clause in their favor, was to carry > any small undis-posed parts of testators estate, but not such a very large portion of the estate as this. '

The last clause in the testator’s will authorising the executors to dispose of the profits of the estate for the benefit of the devisees, shews the intc.nt, that tlje intermediate profits should be. improved for the benefifiof the de-visees, ultimately entitled to take under the-- will. The *hceredes facti,*were intended to be benefitted, and not the heir at law, or the residuary devisees and legatees. It is true there is no express devise of the profits to *them;*but. that is not .necessary. If .used, it would have been only evidence of intention to give, and when the intention can be collected without express words of bequest, it will take effect. It was so determined in the case of John Drayton and others, vs. the executors of Drayton, decided in this court* in which the intention of the testator- was collected from circumstances, and did not require ■ words of gift. So in Smith and Motte vs. Smith and others, determined in this court.

There is a defference between the real and personal estate, and complainants will be entitled, at all events to the profits at least of the personal estate, in case it be decided, that there was no disposition of them by the will. See 3 P. Wm’s. 300 note, Studholme vs. Hodson. •

Mr. Desaussuee and Mr. Ward, for the defendant .:

It is agreed that the intention of the testator must prevail *;*but it is to be collected from the expressions on the face of the will, or from the circumstances at the time of making the will; not from subsequent events. It is also agreed, that where an estate is given, and a charge is made on it, the court will presume an intention to give a fee to the devisee so charged, though there be no direct and express words giving afee.

*26Bui there is no appearance of intention in the will under consideration, to give the intermediate rents and profits to the complainant Maria. Examine all the clauses, and no such intent is discernible.

It has been labored to shew that the court will enlarge trust estaíeit0 supportthe remainders. Allowthis,but it does not decide any thing on the point now discussing ; for it does not follow that the court will enlarge the estate tobe supported.

As to supplying defective words and provisions, the court will be cautious of exercising such a high act of power. The defect must be apparent, and the intention plain. See 2 Bla. Rep. 1159. 3 Burr. 1626.

If the testator did not provide for the disposition of the rents and profits, on the death of the youngest child, before attaining 21 years of age, this court will not presume an-intent and supply the defect, without clear evidence of such intent. Now there is no such evidence in this case *;*the court will therefore permit the profits to- go where the law would carry them, to the residuary legatees, or to the heir at law.

On the death of the testator’s widow, to whom the estate in question was given for life, there was no person entitled to take the estate — none of the younger children had attained 21 years of age — the estate then could not vest. — > Could the profits then pass ? Certainly not.

When did Mrs. Brailsford’s right to the estate accrue and’ vest ? On her becoming the youngest child (by the death of others,) and on her attaining 21 years of age. Until the estate vested in her, she had no right to the rents and profits.

If implication be resorted to, in whose favor would the court raise it ? ' Surely in favor of the youngest child Benjamin, who had the *potential propinqua,*and not of Mrs. Brailsford, who had, only *potentia remotisshna*— for she ■was the third youngest child at the death of *testator;*and richly provided for by direct devises to her. She has by accident become the youngest child, who has attained 21 *27years of age ; and in that character takes most of the estates devised to. Elizabeth and Benjamin,- Shall she also have a presumed-intention, a voluntary implication raised for her, to give her the intermediate rents and profits, and place her abovdyll the children i It would not be reasonable t.o *An*on C' ■’

. Benjamin lived to nearly the ágél.of 21'years. He •surely,'whilst he answered the description of youngest child, wasbetter entitled to the rents and profits than Mrs. Brailsford. It was necessary for his subsistence and education — for though he bad another estate devised to him, that also was limited over ; and the remainder man claims the rents and profits of that estate also : so that Benjamin might have perished in the midst of abundance.

It has been contended that this is a case of contingent remainder ; but we insist that it is an executory devise.-— It .comes precisely within the definition of ah executory devise. The particular estate on which it was grafted' was determined by the death of the widow, before the youngest child attained 21 years; consequently before the estate could vest — there was nothing to support the remainder — it must be considered an executory devise; and if not vested, what could give a right to the rents and profits to the ultimate devisee.

It was argued that the clause in the will, directing the executors to make use of the rents and profits for the be* nefit of the heirs mentioned in the will, furnishes evidence of the testator’s intention, that the rents should accumulate in this instance, for the benefit of the ultimate devi-sees. But the clause will not support this exposition. It is simply a power to the executors to improve the income of the estate, for the benefit of those.respectively interested, according to their several interests. It is nothing more.

We must then enquire how the law disposes of the rents and profits, not disposed of by the testator, of an estate which is contingent, and cannot vest for many years. And it is insisted that the rents and-profits so undisposed *28of, descend to the heir at law. See 1 Vescy, senr. 268, 9. Hopkins vs. Hopkins. 1 Atk. 598. 2 P. Wms. 471, Pap ilion vs. Voice. Cases Temp. T'albot. 44, 51. In the case of Bullock vs. Stones, 2 Vesey, senr. 521, 2, it was decided that where there was a devise of real and per-estate, to the first son of A. when he shall attain 21 years of age, this was a good executory devise of the real estate *;*but that the mesne profits descend to the heir at law' — 'the profits of the personal estate accumulate. See also the cases of Garrick vs. Erring-ton, 2 P. Wms. 361, 2, 3,4. Also Carter vs. Barnardistone, 1 P. Wms. 505. Harris vs. Barns, 4 Burr, 2157. Gore vs. Gore, 2 P. Wms. 28. Heyward vs. Stillingfleet, 1 Atk. 422.

Where there is even a preceding estate limited, with an executory devise over of the real estates, the intermediate profits (between the determination of the first estate, and the vesting of the limitation over) will go to the heir at law, if not otherwise disposed of. Fearne on devises. 434, 512. 1 Atk. 581.

Where a testator devised his real and personal estate to trustees, and willed that the first son of A. should have the estate when he attained 21 years, and his heirs ; and that he should be well educated : A. had no son at testator’s death. Lord Chancellor Hardwieke decided that the intermediate rents and profits of the real estate, belonged to the testator’s heir at law ; but that the heir’s interest would determine on the birth of A’s son; because the education of that son was -to be paid for out of the rents. Fearne on devises, 4'35, 513.

It is obvious then, that if the provision for the application of the rents to the special purpose of education, which amounted to a disposal of them, had not been made, the mesne profits would have gone to' the heir. There is no-such disposition of them in the case under discussion.

These cases go very strongly to shew that the mesne profits of real estate, go in such cases to the heir at law, or residuary devisee. But it was contended that the rule was different as to the personal estate, the interest of which *29would accumulate for the benefit of the person ultimately entitled. There is doubtless a distinction in general cases — but the personal estate is so blended with the real this .case;- the negro slaves'are so essential to the produc-tivene.ss of the real estate, that it is -impossible to separate them; and the whole mesneprofrts'must go, Recording to the rule as to real estate. But in fact, the residuary clause in the will under consideration, puts an end to all these difficulties — for that clause carries with it all the property, real and personal of the testator, not otherwise well disposed of. See Fearne 515, 516, 517. Cases Temp. Talbot, 228, 145. 1 Vesey, senr. 485,490, 1. 2 Vesey, senr. 122, 3.

It seems quite settled that the interest of a contingent legacy, between the death of tenant for life, and the contingency happening, falls Into the residuum, and goes to the residuary devisees and legatees. See 2 P. Wms. 330, 489 ; also, 2 Atk. 473, Green vs. Ekins. 3 Bro. C. C. 58, Wyndham vs. Wyndham; 4 Bro. C. C. 144, 152, Shaw vs. Cunliffe ; 3 Atk. 101, Heath vs. Perry.

With respect to the settlement, which the defendant, the brother of Mrs. Brailsford, requires to be made, there can be no doubt that the court will order it to be made.' It is the course of the court, whenever a wife becomes entitled to new property, to require a new settlement, in whole or in part, according to the circumstances. And there is no reason for departing from that course in this case. See 2 P..Wms. 202, 639 ; 1 Fonbl. 88 ; 3 P. Wms. 12; 1 Vesey, senr. 558; 2 Atk. 420 ; 3 Atk. 20.

In *ex parte*Higham, 2 Vesey, 579, Lord Chancellor Hardwicke refused to order the whole of the wife’s property to be paid to the husband, though she was in court and desired it. So in cases Temp. Talb. 43 ; though there are some cases to the contrary, see 2 Atk. 67.

One of the reasons given for the courts of law not exercising jurisdiction over legacies is, because they have not power to compel settlements as the Court of Chancery can. 5, Term. Rep. 690, Beeks vs. Strutt.

*

 See 1st Vol. of the. Reports in Chancery in S. Carolina, p. 324 5,

*30Chancellor Rutledge

delivered the decree of the Court.

The cage before us is upon the construction ofthe follow* jng clauses in the will of the testator, D. Heyward, who was the father both of Mrs. Brailsford, the complainant,

■“ I will to my son Thomas, and my brother-in-law, T. ' ' *J*. 7 *J '*. Gignilliat, in trust for my wife during her natural life, m )jeu 0f jjer dower, the use of my house and lot in Charleston, with all the furniture, &c. belonging, tp the same; my house wenches, Rose and Precilla, &c. my plantation or, tract of land, called Sandy Hill, containing 764 acres, together with all the slaves, stock and plantation utensils, thereto belonging; and at her death, I give the plantation, with the negroes, stock, &c. thereon, to my youngest child, that shall attain to the age of 21 years, and his or her heirs forever; and my house and lot, slaves, &c. to the next youngest child, that shall attain to that age; and in case my youngest children die before they attain that age, if they should.leave lawful issue, they shall inherit; also one mulatto carpenter boy, named Will; and the above legacy to be clear of any incumbrance of my debts.”

“ I will to my sons, T. & W. in trust for the usé of my daughter Eliza, during her natural life, the following lands, slaves, stock, &c. (described in the will,) and appurtenances thereto belonging; and at her death, I give the land to the male heirs of her body, &c. and in case of no such heirs, then I give the lands and slaves to my youngest child, that shall attain to the age of 21 years.

The testator died some time after making his will, leaving five children in minority, viz.'James, Nathaniel, the complainant Maria, Elizabeth and Benjamin.

This widow died in 1788, Elizabeth died soon after him, (the testator) under age, and without issue. Benjamin is also dead, under age, and without issue, whereby the plantation, negroes, &c. devised to testator’s wife, for lif;, and the estate devised to Elizabeth, became the property of the complainant Maria, by the devise thereof in *31the above recited clauses, she being the youngest child who has attained tbe age of 21 years.

For complainant, it was contended, that by virtue of the trust estate given to the defendant in the first instance for the life of the first taker, the estate limited to the child who should first take, should be construed a contingent remainder, and the trustee considered as holding the estate, together with the rents and profits, for the benefit of such child, until the estate vested: but that admitting such limitation not to be a contingent remainder, but an execu-tory devise, yet the complainant was entitled to the profits, it being evidently the intent of the testator, and might be collected from the will, that they should accumulate for' the benefit of the devisee, in whom the estate., should ultimately vest. On the other hand, it was insisted for defendant- that this Was an executory devise.- That the trustee had only an estate for the life of the first takers *;*and upon their deaths (if it were not for the residuary clause) the profits of the real estate would descend to the heirs at law, until the contingency happened, and the profits of , the personal estate would accumulate and be an undisposed-part of the estate, tobe divided according to the statute.But that by virtue of the residuary clause, the residuary legatees must take the whole, it being therein given to them.- In support of thi3 doctrine, a, number of cases were cited by defendant’s council, which were not controverted t but in reply, it was insisted, that the intent of the testator must prevail.

To whom the profits of the estate belong, since the death of testator’s widow and his daughter Elizabeth, is the single question to be considered.— With regard to the defendant, it is of little consequence ; his interest is no way concerned in the *determination;*for if they do not belong to the complainant,.they will go to the residuary devisees and legatees, Nathaniel and James Heyward.

The governing rule of construction in the case of wills, is the intent of the testator; and that intent must be *32collected from the whole will, *exnñsceribus*testamentó, so as to leave the mind quite satisfied about what the testator meant; and to construe conformably thereto, so far as it js p0ssible5 consistent with the rules of law. ' When sentences are doubtful or ambiguous the exposition must made according to the testator’s, intent, which lord, Coke calls the pole star, to guide judges in their determinations. In some cases equity will construe a will against express words, to make it take effect according to testator’s intent; and will reject inconsistent or contradictory words. How far a devisee or legatee, who is not entitled immediately to the estate, or thing devised, shall have the profits or interest in the mean time, depends upon particular circumstances. Lord Hardwicke observes, most' of them depend on the particular penning of wills; and hardly one case can be cited as a precedent for another. But if it be the case of a child to whom the testator gives the estate, the court will be astute to find out the testators intent, to give it effect.

This being premised, we shall proceed to consider the will of the testator. To shew that he meant to dispose of all his estate, he begins with declaring, that as to such worhUy goods as God had been pleased to put in his hands, &c. &c. he gave, devised and bequeathed to certain trustees for his wife’s life, and to other trustees for Elizabeth’s life, the estate in question; and at their deaths, (if Elizabeth should die under age, and without issue) the lands, slaves, &c. to his youngest child, that should attain the age of 21 years. The testator having amply pi-ovided for all his children in his will, but particularly his sons, and his two youngest children, who were the complainant, Maria and daughter Eliza, (for Benjamin was not then in esse) they appear, by the clauses under consideration, to have been the peculiar objects of his care, and to have been principally in his view; although by the singular manner of wording the first clause, Nathaniel has become entitled to the house and lot, &c.; and it is more than probable, testator did not contemplate that either James or Natha*33niel would take any share of the estate devised in these clauses; for, after having made a disposition of a very large fortune among his children, lest he may have omitted something, which was not improbable, he inserts the clause, giving to his sons James and Nathaniel, the remainder of his estate, real and personal, to be divided between them. The profits of the estate, which he had specifically devised, could not be considered as any -part of the residue; for that can only apply to such estates as he had at the time of making his will, and were not therein particularly disposed of. The, whole property, lands, negroes, &c. being blended and united together, and given to the respective devisees under certain limitations, the profits as naturally follow and belong to such devisees as the shadow follows the substance. If however there remained on the mind a scintilla of doubt respecting the testators intent, the last clause would remove it *compleatly;*for where he appoints his executors, whom he also nominates guardians of his children, he gives them full power to act, do with and dispose of the yearly produce of his estate, as they should think proper for the benefit of his heirs above mentioned. To effectthe testator’s intentions, the word heirs must be construed children; for -in the legal sense of the word, a man’s eldest son is his heir, and it is evident he could not mean him ; neither could he mean his residuary legatees, because they were not his heirs. The heirs then to whom he refers, can be no other than his children, the devisees respectively named in his will, for whose respective benefit, the produce of the estate he had given to each of them shouldbe appropriated. Suppose the son Benjamin had lived to the age of 21 years, would it be contended that he would not have been entitled to the profits of these estates, which are now in dispute ? Surely not. Nothing is more evident, that the defendant did not view the question formerly in the light it is now contended, than the circumstance of his giving up the house and lot, &c. to complainant and his wife, on the death of testator’s widow; judging as he did very naturally and justly, that she having *34an interest, although at that time contingent, would be m equity entitled to receive the profits, when the estate should vest, in most of the cases cited the testator disposed of a part of thé profits of the estates devised, particularly in Hopkins’s case» In the case before us, the testator *s sdenb as t0 tbe profits, but has devised the lands, slaves, &c. in general terms, which according to lord Colces notion of an <kc, would he sufficient to convey every ■ thing; and in the present case, we are of opinion, even without the aid of the last clause, would warrant the court in decreeing the profits of the estate to complainants. But that is so full, comprehensive and explicit, that we cannot hesitate to decree, and it is hereby ordered and decreed, that the defendant do account for the profits of the estates devised in the will from the death of the respective devisees, Mrs, Heyward and the testators daughter Elizabeth.

A petition was afterwards presented to the court for a re-. ^earing, and the same being granted, a re-hearing took place. and the cause wasagain fullyargued. Chancellor Rutledge afterwards delivered the opinion of the court as follows :

The defendant having applied for a re-hearing on the point respecting tbe right of complainants to call upon him for an account of the profits of the estate, to which they became entitled on the death of Benjamin Heyward, (son of the testator,) or that if held accountable, he might be allowed all advances made by him for Benjamin, over and above the income of Callewashee, (which was the estate devised absolutely to Benjamin,) to be deducted out of the income of the other estates ; that point not having been particularly urged at the former hearing; the court thought it reasonable and equitable to grant such re-hearing, (notwithstanding the decree to account,) in order to give the defendant an opportunity of making as full a de-fence on that point, as on those his counsel had made on the other questions in the cause. A re-hearing has accordingly been had, and the ingenuity of counsel has beer. *35exhausted, to evince that Benjamin was entitled to the income of those estates, from the death of the respective de-., visees, or at any rate to so much as was necessary tor his maintenance over and above the income of the estate, cifically devised to. him. In support of their arguments, a variety of cases were adduced, which though very good law, were not applicable to the present case, because they were either cases of vested legacies, or where parents had given legacies to children, payable at 21, without making provision for their maintenance in the mean time. • There is indeed one case, that of Bourne and Tynte, where the whole interest of the legacy was given the legatee, though not a vested legacy. In that case, however, it was a bequest by the father for an unborn child, and he directed that *SOI.*part of the interest should be paid to his wife, for the education of such child. The lord chancellor allowed the whole ■ interest, and declared that it was never the intent of the testator that the defendant should have any benéfit of the legacy, if a child should be born; which had happened. In most of the cases which have been determined here, provision was made by the court for the education and maintenance of the legatees, out of the estates devised to *them;*because the parents had not the means of supporting and educating them suitable to the estate they would be entitled to. In the case of Woodber-ry, the father was altogether unable to do it. In the present case, the testator, it is true, has made no particular provision- for the maintenance of any of his children: he has, however,.made specific devises to each of them ; .out of the profits of which, he certainly intended they should be maintained. The very estate now in contest, being particularly devised to his wife and daughter during life, and that to the daughter and to her issue afterwards, shews most manifestly that he did not contemplate that the child or children, who might thereafter become entitled to the estate, on the devise over taking effect, should be maintained out of those funds, because it was altogether uncertain when the persons to whom the estates were immediately *36devised, would die. To be sure, if there bad been no provision at all made for Benjamin, and if he had been left destitute, the court on the death of the first devisees would pave ma¿e a hard shift as the book expresses it, to make . *17*provision for him, and do what the father was bound to do? anc^ ought to have done, which was to provide necessaries for him; and therefore would have allowed somewhat out of the said estate for his maintenance. But because the court in such a case might have exercised their discretion, rather than that the child should have wanted bread, w.e do not think this case would warrant the exercise of such discretion, because the provision made for Benjamin by testator, (we must presume) he thought fully sufficient at that time *;*and could only have intended the devise of the estates in question, as an additional bounty to the youngest child, whomsoever it might be that arrived to the age of 21, in the event of the death of the first devisees, (the latter of them without issue.) Upon the whole, we are of .opinion, that the decree is correct as it now stands. It will undoubtedly be a very hard case, if the defendant should eventually be injured ; and it is a misfortune which the court may lament, but have it not in their power to redress ; not being warranted therein by precedents ; and there being no intention of the testator .expressed in his will, sufficiently apparent to authorize the .court to decree either the profits, or a maintenance to Benjamin out of these .estates. As to the question whether Benjamin had not an absolute estate in the negroes specifically bequeathed, and- therefore, (as was suggested by .complainants counsel,) defendant might be made whole out of that property, we give no opinion, it having been mentioned that a suit is now depending in this court on that subject.

Holmes and Parker, for complainants.

PesaussuRE and Foed, for defendant.

The defendant afterwards accounted with the complainants conformably to the decree of the court before the master.

*37The principal question before the master was, as to the allowance of interest on the annual balances in the hands of the executor, which the master reported to be due. Exception was taken to this part of the report, but was overruled.