#### *John A.*Donald, *Administrator de bonis non of Robert Gray vs. Charles Dendy.*

1. Where a testator, in his last will, used the term, (in relation to a bequest of slaves,) “ I will and bequeath Sarah, *and all her marease*” — the (term, all her increase, was held to refer only to such children of the slave Sarah, as were born after the making of the will.

2. Parol evidence is only admissible to explain a latent ambiguity. If a testator devises his estate to a person, or class of persons, by name or description, and it should turn out that there is no person of the name, or that will answer the description, parol testimony may be introduced, to explain to whom the testator intended the bequest to be applied; for there is a latent ambiguity, which, if unexplained, would render the will inoperative. Whatever is necessary to explain the ambiguity of the legatee, is equally applicable to an ambiguity in the description of the legacy itself.

*Tried at*Abbeville, March, 1840, *before*Butler, J., *whose report of the case is as foliotes:*

Trover for negroes, Sarah. Ann and her infant child.

These negroes were sold at sheriff’s sale,' under *fi.fa.*against West Donald, and bought by defendant. Sarah Ann is daughter of Annis, the daughter of a negro woman by the name of Sary. The right to Sarah Ann depends on the right to Annis, and, as it is contended, the right to 'Annis depends on the history and title to Sary; so that it will be necessary to go far back to get at the history and true title to Sary.

*124Robert Gray, the alleged intestate, married *about*’96, or perhaps before, Nancy, the daughter of Alexander Donald. At the time of the marriage, Alexander Donald lived in Chester, and Robert Gray in Fairfield. After the marriage, Alexander Donald *sent Sary*to his daughter and son-in-law, who *shortly*afterwards, removed to Abbe-ville, bringing with them Sary. Not long after the removal, and perhaps in connexion with it, Alexander Donald moved to Abbeville, and lived there till his death, not far from Robert and Nancy Gray. Before A. Donald’s death, which happened in 1803, Sarah had *a*child, called Annis. Whilst the parties lived in Fairfield, Sary had been *spoken of in the*family, as “ entailed” property, and not subject to the debts of Robert Gray, and she was so spoken of in ‘ Abbeville, before and after Alexander Donald’s death.

Alexander Donald left a will, by which he appointed John Donald, his son, and Andrew Gray, his son-in-law, his executors. Among other clauses in the will, is one to this purport — giving to his son-in-law and daughter, Robert Gray and Nancy, during their joint lives, and to the survivor of them, and at the death of the survivor, to the children of the marriage, three negroes, Peter, Little Frank, “ Sary, and all her increase.” At the time, *Sary and Annis, her*child, were in the possession of Robert and Nancy; Frank and Peter went into their possession under the will; Sary (not Annis) being mentioned in the same clause.

Robert Gray died in 1811, leaving a widow and three children, viz. Mary Ann, who married West Donald, Elizabeth, who married James Donald, and a son, Robert Douglass Gray. His widow, Nancy, took out letters of administration, and had the personal estate appraised; two of the appraisers were John Donald and Andrew Gray. *Sary and Annis*were appraised, and returned in the inventory as the property of the intestate, but were never sold for distribution. • The widow held *them*till she intermarried with Charles Thompson, some time in 1812. After the marriage, she moved, with her husband, to Newberry, taking with her the negroes, Frank, Peter, Sary *and Annis.*Her husband, Thompson, died in New-berry, and she returned to Abbeville, bringing back the *125
      *aforesaid*negroes. While she was widow of Thomson,' she sold Sary and *some*of her children, Edy, Stephen, *and perhaps another ;*she retained Annis till her death.

In 1823, Nancy married Andrew Paul, and had the negroes Annis and others; Paul died in January, 1825. After his death, by some arrangement with Hill, the executor of Paul, the negroes were delivered up to the widow, as there was some legal question about their title; the widow also took *some*portion of Paul's estate, under the same arrangement. Some time in the summer of the same year, Mrs. Paul died intestate, leaving Elizabeth, who married James Donald, and Robert Douglass Gray, her children, surviving her. Mary Ann, who had married West Donald, died in 1820, leaving her husband and several children surviving her; *some*of the children are *yet*under age.

James Donald administered on the estate of Nancy Paul, and a division of *her estate*was made among her children and their representatives, or supposed representatives. Sealy Walker was guardian of Robert Douglass Gray, then under age, and received the share assigned to him. James Donald received his wife’s share; West Donald was present, and received a part, either for himself, or for his children. He received *Annis and Sarah Ann ;*they were sold *afterwards*for his debts. He died in 1834, *and*one of his sons, John A. Donald, administered on the estate of Robert Gray, deceased, *and*asserted his right as *administrator de bonis non,*to the negroes in question, upon the ground that they had never been legally disposed of in a due and legal course of administration. He now contends, that they are to be regarded as a part of the estate of Robert Gray, which, as it appeared by the evidence, has no creditors.

The various grounds of objection to the recovery of plaintiff, were taken below, that are now taken in appeal.

The first question in point of order was, whether Annis and her child passed under the will of Alexander Donald; if so, the plaintiff had no interest. My own individual opinion was, that Annis had passed under the will, under the terms of “ Sarah and all her increase.” The Court of Equity *had otherwise*determined, and I did not feel at liberty to question that decision.

*126The property was still in specie, and could be identified as *part of the estate of Robert Go-ay,*it never having been converted into any other form by Nancy, the administra-trix; nor did I think the marriage of Nancy could operate as a legal gift and transfer to the husband. She took the property *to have it administered*and disposed of according to law, and not having done so, it was subject to administration by the administrator *de bonis non.*If her letters had been revoked during her life time, this would have been unquestionable.

I left it to the jury to determine whether Robert Gray took Annis, subject to the future control of Alexander Donald. If so, I thought the property ought to go as Robert acknowledged it should go. The evidence on this point was not satisfactory, and in candor, I think the case was decided according to my notions of the law; and if I was wrong in any point, I was also wrong in this, for I rather assumed that the property was part of the estate of Robert Gray, fairly subject to the claim of his administrator, . and that he should recover the value of the ne-groes.

My judgment would modify somewhat the propositions made by defendant, but for safety to his rights, I admit that I overruled all his objections.

*Grownds of Appeal.*

*'*The defendant appeals, and moves for a new trial, because of misdirection of the presiding Judge, in overruling the following points, which were made by the defendant on the trial below, and which will be again urged in the Court of Appeals, viz.

1. That after collection of all the assets, and payment of all the debts of an intestate, the legal estate in the residue, in the hands of an administratrix, upon her death, goes to her representative, and not to an administrator *de bonis non*of the intestate ; and the remedy to compel distribution and account is at equity, and at the instance of the distributees, and not at law, at the suit of an administrator *de bonis non.*

*2.*That the legal estate in the chattels of an intestate, reduced by the husband of an administratrix to his pos*127session, vests in such husband, and will not, upon his death, survive to the wife, administratrix.

3. That Annis, mother of the slaves in question, is included in the disposition made by the will of Alexander Donald, of *“*Sarah and all her increase.”

4. That it was a question for the jury, upon the evidence offered, whether the terms of said will did not include Annis.

*5.*That independent of the will aforesaid, the acknow-ledgements of Robert Gray, that Sarah was “ entailed,” his long continued possession, in conformity with such ac-knowledgements, and the possession of his widow, with assertions of right on her part, and acquiescence on the part of the distributees of Robert Gray, all concurring in the same view of limited rights in Robert Gray, afforded presumptions sufficient to countervail the presumption of absolute title in Robert Gray, arising from his possession only.

6. That there is no distinction between Sarah and her children, all of whom were born after she went into the possession of Robert Gray ; and there was error in directing the attention of the jury to such a distinction.

7. That the acquiescence of West Donald and his wife, and of James Donald and his wife, in the exclusive enjoyment by the widow of Robert Gray, of all the slaves which Robert Gray had in his possession at his death, (if it does not incontestably establish a right opposed to the title of Robert Gray,) raises presumptions of assignments .and arrangements by each of the said husbands, in the lifetime of his wife ; and the subsequent fair distribution into three parts, may be well considered as conformable to these assignments and arrangements, so as to bar even all equity in the children of West Donald.

8. That the right of West Donald, being vested in the defendant by purchase, and the rights of James Donald and Douglass Gray, being vested in him by the statute of limitations, the plaintiff, at most, could recover only 2-9 of the value of the slaves.

A supplemental statement, which varies those statements of the report that are italicized, and adds to the report.

*128Robert Gray and Nancy were married before the period to which the memory of any witness extended; supposed soon after the revolutionary war; one of the witnesses remembered Sarah as far báck as ’96; she was then a young, woman, without a child, in possession of Robert Gray, in Fairfield, said to have come from Alexander Donald, but how, or when, unknown to the witness. She had one child, Annis, in Fairfield, prior to the removal in ’98 ; three other children, Essex, Edy, and Stephen, were born in Abbeville, before the date, of Alexander Donald’s will, in 1803, and one- child, Nancy, afterwards. All of these children continually remained with Robert Gray' until his death, except Edy, whom he sent to his son-in-law, West Donald, soon after West’s marriage, which took place the year after Alexander Donald died.

Robert Gray said, and Nancy Gray said, and it was talked of in the family, both in Fairfield and in Abbeville, before and after Sarah had children, that Sarah was “ entailed and after the death of Robert Gray, Nancy always claimed the negroes in her possession, as hers for her life, independent of all right in R. Gray’s estate. In speaking of Sarah being “ entailed,” one witness supposed that reference was had to a former will of Alexander Donald’s ; and another witness either supposed the same, or did not understand by what instrument she was “ entailed.”

Administration of the estate of Robert Gray, was granted to Nancy, 1st April, 1811, and *de bonis non*to the plaintifF, in July, 1839. Administration of the estate of. Nancy was granted in 1825, and the division took place the same year; but whether it was of her estate, or under the will, or some agreement, did not appear. In the inventory of her estate, the negroes are not included.

Little Frank, Peter, Edy, Essex, Stephen, and Nancy, are included in the inventory of R. Gray’s estate, as well as Sarah and Annis; the inventory signed by the appraisers, and not by the administratrix. And (except Edy, claimed by West Donald, and Sarah and Stephen, sold by Mrs. Thompson,) all of these negroes, with the issue of the females, attended Nancy in all her various changes, and were divided after her death.

*129Nancy took no part of Paul’s estate, except the negroes she brought with her.

The youngest child of Mary Ann Donald is now about 21 years of age.

The sale to defendant, was in February, 1829.

The Judge held, that the doctrine of election, which the defendant’s counsel endeavored to apply to the case, was unnecessary to be considered, as R. Gray, by his acknow-ledgements, shewed that the title of Sarah was not vested in him, so as to be exempt from the distribution made by Alexander Donald’s will; and then adverting to Annis, he left it as a question for the jury, whether R. Gray took Annis, subject to the future control of Alexander Donald.

James Donald and Robert Douglass Gray, have both left the State, with the negroes assigned to them in the division. The latter went in February last, and before he went, gave a bond, without security, binding himself to bring back the negroes, if plaintiff should recover.

The equity proceedings in the case of John A. Donald, administrator of Mary Ann Donald, and others, against Charles Dendy and others, were not in evidence, although the reported decree in that case was referred to as authority.

*Evidence offered to aid in the construction of the terms*“ *all her*increase,” *in Alexander Donaldls wiU.*

In the 2d disposing clause: Jenny had no children in 1803.

In the 3d disposing clause: Annikyhad children, not bequeathed, except as “increase,” which have gone with her.

In the 3d disposing clause: Linda had no children then born.

In the 4th disposing clause: No child of Sarah bequeathed, except as “increase;” she had four then.

In the 5th disposing clause: Lusa had children not bequeathed, except as children.

In the 7th disposing clause: Chloe had these children, Henry, Isaac, Linda, Little Frank, and Little Ann, all bequeathed in various parts of tire will.

In the 8th disposing clause: Little Ann had then no children.

The term “ increase,” nowhere added to any female when it could embrace only future increase.

No proof of any slave of testator not bequeathed specially in the will, besides those which it is contended were included under the terms “ all her increase,” or her “ children.” Specific bequests made of tools and beds, a mare, a still, and part of a cotton gin.

*130
      *Curia, per*

Dunkin, C.

In *Seibles vs. Whatley,*2 Hill C. R. 607, the bequest was of “ Nance and her increase,” The Chancellor who heard the cause on the circuit says, “the words used do not limit the increase given with Nance to future increase. Increase, as a general term, will, I suppose, include past increase as well as future, and extend to all the children of the slave.” But in revising this opinion, the Court of Appeals differed with the Chancellor, and say that “when the term ‘increase of slaves is used, it is the common understanding of men, that it refers to increase thereafter to be produced, and that they could not in any way construe them to relate to children born before the making of the will.” It is not, perhaps, so important what the rule is, as that it should be fixed. Since the case of *Seibles vs.*Whatley, the term ‘ increase,’ when used in a will in reference to slaves, must, as a general rule, be construed to include after-born children only. It is supposed that the term *'all*her increase,’ may make a difference. But supposing increase to have the established meaning of *after-born*children, all, is merely an expletive, and includes *all*her after-born children. Alexander Donald, the testator, died about 1803, and Robert Gray, the plaintiff’s intestate, in 1811. Much evidence was given as to Gray’s declarations, the condition of the parties, *&c.*But it is very questionable, whether such testimony is admissible under the circumstances of this case. In *Wish vs.*Kershaw, reported in a note to *Shearman vs. Angel,*1 Bail. Eq. R. 352, a question arose as to the admissibility of parol evidence, to explain the meaning of the term *grand-children. “*There may be a difference of opinion,” say the Court, “ as to the application of the rule on this subject; but there can be only one opinion as to the rule itself. It is very certain, that parol evidence is only admissible in such cases, to explain a latent ambiguity. If a testator devises his estate to a person or class of persons, by name or description, and it turns out that there is no one to whom the description properly applies, parol evidence may be admissible to shew to whom the testator intended it to be applied ; for there is a latent ambiguity, that is, an ambiguity ascertained by extrinsic proof, and which may, there*131fore, be explained by proof of the same sort; and which, if not explained, would render the will inoperative. But if there are persons answering the description, and evidence is offered to shew that the testator intended to include other persons, not coming within the description contained in the will, such evidence cannot be received, for there is no ambiguity to be explained, and the evidence is, in fact, offered for the purpose of altering the terms of the will, although there is nothing doubtful, either as to its construction or application.” What is here said of an ambiguity, as to the legatee, is equally applicable to an ambiguity in the description of the legacy itself. The testator bequeaths “ Sary and all her increase.” By the rule of *Seibles vs. Whatley,*increase ’ means after-born children. It is necessary always to resort to parol evidence, in order to ascertain to whom, or to what, the description applies. It is not shewn or suggested that.Sary, from her age, or from any other cause, might not have had after-born children. On the contrary, it is in proof that she had issue, born after the date of the will, and after the death of the testator. There is, then, no such latent ambiguity as would warrant the admission of parol testimony, in order to give a different meaning to the terms, from that which the Court has heretofore given. If the intention of the testator was different, such intention must appear by necessary implication, on the will itself. In *Shearman vs.*Angel, already cited, it is said to be the rule, that if there be a devise. “ to children,” this imports legitimate children; and that “ if the words are to be explained or enlarged, so ■ as to include the illegitimate, it must be done by clear expression, or necessary implication, on the face of the will itself.” Giving to the defendant the full benefit of this principle, the Court have examined the several clauses of the testator’s will. Nothing-more is said in relation to this particular bequest; and although plausible arguments were certainly adduced, from the language of other bequests, as compared with the situation of the property, it seems quite too strong an inference to say, that the intention of the testator to include Annis in the bequest of Sary and all her increase, appears “by clear expression, or necessary implication, on the *132face of the will itself.” But in the case of *Donald vs. M’Cord & Dendy,*Rice’s Eq. R, 330, the Court of Appeals in Equity, giving construction to the same clause of this will, held, that the terms ‘ all her increase,’ passed only the after-horn children, and that it was not distinguishable in principle, from *Seibles vs. Whatley.*That decision is not conclusive on these parties, nor in this Court. But if the correctness of that judgment were more doubtful, the Court would regard it as due to the satisfactory administration of justice, that the determination should not be disturbed. The motion is dismissed.

Wardlaw *&*Perrin, *for the motion.*

Burt, *contra.*

BENJ. F. DUNKIN.

We concur. David Johnson, J. S. Richardson, John Belton O’Neall, Josiah J. Evans,- R. Gantt.