#### *John K. Bailey and others*vs. *Wyatt Patterson and others.*

Testator bequeathed as follows: “I give and bequeath to my daughter M. B., one dollar; I also give and bequeath to *Hie hdrs of ha- body,*my negro girl Poll, at four hundred dollars; I give and bequeath to the said heirs of her body one-twelfth part of my clear estate, to be equally divided among them.” At the death of testator, M. B., who was then living, had several children, some of whom were *in esse*at the date of the will, and some had been born afterwards; *Held*that the bequest of Poll was not to M. B., but to her children living at the death of testator.

It is always open to inquiry whether a testator used the word 1 *heirs,’*according to its strict and proper acceptation,'or in a more inaccurate sense, to denote ‘children,’ 1 next of kin,’ &e.

Defendant, — though claiming as a purchaser, without notice, from the guardian of plaintiffs, — ordered to deliver up the slaves in dispute to plaintiffs and account for the hire.

*Before*DunkiN, Ci-i., *at Kershaw, June,*1850.

The following is the decree of his Honor, the Circuit Chancellor :

Dunkin, Ch. The will of Jacob Champion, deceased, bears date in 1826, and a codicil was executed in 1832. About this time the testator died, and administration, with the will annexed, was assumed under the authority of the ordinary, by George W. Champion.

The testator left some twelve or thirteen children ; one of the clauses of his will is as follows : *“*I give and bequeath to my daughter, Mary Bailey, one dollar ; I also give and bequeath to the heirs of her body, my negro girl Poll, at four hundred dollars ; I give and bequeath to the said heirs of her body one-twelfth part of my clear estate, to be divided equally among them.”

On the 21st November, 1834, James Bailey, the husband of Mary Bailey, and the father of the complainants, who are her children, was duly appointed their guardian, and gave bond as such. On the 26th November, 1834, James Bailey, as guardian, gave to the administrator, Champion, a receipt for “ Poll and her child Sarah Jane, bequeathed to the children of Mary Bailey by *157testator’s will.” He gave him a receipt as guardian, on the same day, for the hire of Poll up to that date ; and a separate receipt for *“*$213 94, in full of the legacy bequeathed to the children of Mary Bailey, by said will.” Mary Bailey on the next day gave a receipt to the administrator for *“*one dollar,” the sum in full bequeathed to her in her father’s will and testament.

Poll was nearly grown when the testator died; soon after she came into the possession of the guardian, she was regularly hired out by him; she was hired to the defendant for several years prior to 1841. On the 4th of March, 1841, he acknowledges, on a note of James Bailey to him, a receipt of $65 by the hire of Poll; sometime after this period, James Bailey became insolvent, and left the State, but at what particular time was not proved. Poll remained in the possession of the defendant, and she had, at the time of filing his answer, six children, whose names are set forth in an exhibit with his answer ; three of the complainants having become of age, applied to the defendant, as well in behalf of themselves, as of their co-complainants, for a delivery of the negroes, and an account of the hire — this being declined, the bill was filed on the 14th January, 1846.

The defendant, by his answer, admits that he is in possession of Poll and her children, whom he claims under ari alleged purchase from James Bailey, about the year 1841. He insists that, by the true construction of Jacob Champion’s will, an absolute estate in Poll vested in Mary Bailey, and consequently, that her husband’s title was perfect and indefeasible. He admits that he hired Poll from James Bailey for $65 per annum, from 1837 to 1841, but he denies that he hired from him as guardian, or that he knew that he held the negroes as guardian. It may be premised that there was no proof of any sale by James Bailey, or of any purchase by the defendant; but if James Bailey had a good title under Champion’s will, that enquiry might not be important in this issue, as he could hold by possession ; and if the complainants are entitled under Champion’s will, whether a sale was or was not made by their father, is, in my judgment, unimportant. But if the legal title had been in James Bailey, and *158')nly an equity in his children, I do not think the circumstances established, would in any manner entitle the defendant to the protection of a purchaser for valuable consideration, without notice.

But in whom was, and is, the legal title *%*

It is quite clear that, in a strict sense, no person can sustain the character of heir in the life time of the ancester, according to the familiar maxim *nemo est licores viventis*— but.it is always open to inquiry whether the testator used the word according to its strict and proper acceptation, or in a more inaccurate sense, to denote *‘*children,’ ‘ next of kin,’ &c. 2 Jarman, 13. The doctrine was very fully discussed in *Holeman*vs. Fort, (3 Strob. Eq. 66.) That was a gift by deed of certain slaves to “ the joint heirs of Jas. D. Hoof and Ann Hoof,” (both of whom were alive.) The deed was held to pass an immediate and absolute estate to the children of J. D. and Ann Hoof, living at the date of the deed; children subsequently born were excluded. It will be remarked in the will of Champion, that immediately preceding the bequest in question, the testator gives one dollar to his daughter Mary Bailey ; this circumstance is relied on in *Darbi-son*vs. Beaumont, (1 P. Wms. 230,) as indicating the sense in which he uses the words “ heirs of her body,” in the succeeding clause. In *Sipis*vs. Garrol, (1 Dev. and Bat. Eq. R. 393,) testator had, in a-previous clause, made a devise and bequest to Joel Sims, and he afterwards bequeathed the residue of his estate to “ Joel Sims’s lawful heirs.” Judge Daniel says, “ The testator takes notice that Joel Sims was alive at the making of his will; there can be no doubt, that the testator did not intend that the words ‘ lawful heirs ’ should be taken in their technical meaning, but he intended to designate a class of persons, who should take immediately on his (testator’s) death.” I think the words, *“ to*be divided equally among them,” also indicate that the words were used in their ordinary and not technical sense.

Those of the complainants who were alive at the death of the testator in 1832, are entitled to Poll and her issue; three of the complainants were in existence in 1826, the date of the will, and *159were of ago when the bill was filed. The Court infers from the evidence, that *Jacob*(the fourth child) was also alive in 1826, though he was not of age at the filing of the bill, and as the succeeding children, Polly and Nancy, were born at intervals of two years from the birth of Jacob, they were both alive at the death of the testator, in 1832. These six complainants are therefore entitled to the slaves, under the will of their grandfather.

It is, therefore, ordered and decreed, that the slaves mentioned and named in the exhibit of defendant’s answer, together with any issue thereof, since born, be delivered up, and that the defendant, Wyatt Patterson, account for the hire since the 1st of January, 1841.

The defendant, Patterson, appealed, on the grounds:

1. Because the defendant, Wyatt Patterson, purchased the said slaves from James Bailey, the guardian, without notice that he held them as guardian, and therefore his title to the said slaves is protected in Equity.

2. That by the true construction of Jacob Champion’s will, an absolute estate in Poll vested in Mary Bailey, and consquently the title of her husband, James Bailey, to the said slaves was perfect and indefeasible.

8. Because the sale of the said slaves was necessary for the support and maintenance of complainants, and the proceeds thereof were applied to that purpose.

Smart, for the motion.

*Clinton*cj- Hanna, contra.

*Per Curiam.*

We concur in the decree of the Chancellor ; and it is ordered that the same be affirmed, and the appeal dis ■ missed.

JohnstoN, Dunkin and Daugan, concurring.

*Appeal dismissed.*