#### William L. Thomas and others, *vs.*Lemuel Benton.

*Cheraws*

Heard before Chancellor Gaillard.

Devise of real estate to A. and the lawful heirs of his body, is in this country a fee conditional at common law, and on his death without issue, the land reverts to the donor, and descends to his heirs. A bequest’ of slaves to B. and the heirs of his body, with directions that the slaves should remain on testator’s plantation till B. married or came of age, and then to take his part, is a vested legacy in B. though he dies under age and unmarried, and is transmissible to his heirs. But the rents and profits from the- death of the testator to the death of B. went to t]ie hen's at law and- distributees of-thc testator.

JOHN Kimbrough, by his last will and testament, duly executed, devised and bequeathed to his grandson, John Augustus Benton, certain negro slaves, to him and the lawful begotten heirs of his body forever. Also, certain tracts of land, described in bis said will. He also devised and bequeathed as follows: .“I give unto my grandson, Lemuel Benton, certain negro slaves, (whom he names) together with all the increase of the said negroes, to him and the lawful begotten heirs of his body forever. Also, it is my will and desire, that the above mentioned negro slaves, given by me to my grandchildren, shall be and remain on the abo vein en-iioned plantations, under the directions of my executors hereafter mentioned, until such times as my grandchildren marry or come of age, and then to take their part.

The testator died leaving his said last will and’ testament in full force and virtue; and also leaving alive his widow Hannah, and his only child, the wife of Lemuel *18Benton the elder, (the defendant) who were his heirs set law, under the statute of 1791.

*17CASE X5X-

FEB’Y. 1809.

*18John Augustus Be;nton afterwards died, intestate and without issue, leaving alive his father and several brothers and sisters, who were complainants, and who claimed a part of the real estate.

The question made for the consideration of the court was,'what estate the said John Augustus Benton took in the real estate so devised to him, and who were entitled to the same on his decease.

Chancellor Gaillard, who heard the- cause, was of opinion, that the devisee took a fee conditional at common law in the said *land;*and that on his death without issue the same reverted to the donor and his heirs, and descended to Hannah Kimbrough, the widow, and to the only daughter of John Kimbrough, (wife of defendant) as his heirs at law.

Afterwards two other questions were submitted to the court on the clauses in the will of John Kimbrough bequeathing certain slaves to Lemuel Benton, jun. and stating his desire that the slaves bequeathed to his grandchildren shouldremain on his plantation, till they married» or come of age, and then to take their parts. The questions were, whether the slaves bequeathed to Lemuel Benton, jun. vested in him, as he died under age and without issue ? And next, who was entitled to the rents and income of the labor of the slaves, from the death of the testator to the death of Lemuel Benton, jun.

Chancellor James, who presided, stated, that the question on the first clause was, Did the negroes so bequeathed to the grandson, Lemuel Benton, vest in him in such a manner as to be transmissible to his heirs at law, under the act of 1791. On this question the judge stated, that it appears the said negro slaves did vest in interest though not in possession; and that whenever the words used in the will to bequeath personal property, are such, as in a case of freehold would create an estate tail, that according to a -well known ride of law, such personal property must rest absolutely in the first taker.

*19The question on the second clause is, Shall the product of the labor of the said slaves, whilst the said grandson lived, from the death of the testator, John Kimbrough, until the death of said grandson, go to the heirs at law of the said grandson, Lemuel Benton, or to Col. Lemuel Benton, the defendant, whose wife is heir at law to John Kimbrough, and also of the widow since dead. The product of the labor of the slaves appears not to have been disposed of by the will 3 but was left to accumulate until the grandson should marry or come of age: And this not being the case of a child, where the father would have been considered bound to provide for him, but of a grandson, I am of opinion, upon the authority of the cases cited, 2 Atk. 330, and 3 Atk. 101, that the product of the labor ■ of the said slaves must go to Col. Lemuel Benton, husband of the heir at law of John Kimbrough.

There was no appeal from this decree.