*Laurens, Washington district.*

Heard by Chancellor Thompson.

#### John Ellis, *vs.*Stephen Shell, et al.

casb mxxy.

A bequest of a woman slave, to testator’s wife for life, and after her death to his daughter Jane, gives a vested interest in the slave to Jane. And the issue of the slave bom before the determination of the life estate, goes to remainderman, at the expiration of the life estate.

John Em,is, the elder, by his last will and testament, biarir.g date the 21st day of January, 1772, made *612the following1 bequest: *“*I leave to Mary, my dearly bo— loved wife, the land and plantation I now live on, and the mill; one negro woman slave, named Peg, during her life • and I also leave her all my stock of horses, cattle, hogs and household goods, debts, and a still, during her life, then to be equally divided among my children.”

*611JUNE, 1815.

*612A subsequent clause in the will is in the following words: *“*I bequeath to my daughter, Jane Ellis, one negro woman slave, named Peg, after her mother’s decease.”

John Ellis, the testator, died shortly after the execution of his will, intervening which occurrence, and the death of Mary Ellis, Peg had considerable increase. The complainant is one of the children of the testator, and claims his distributive shave of the said increase. Stephen'Shell intermarried with Jane Ellis, who are the defendants in this action.

There are two points involved in this case. The first is, at what time the legacy vested in Jane Ellis, and secondly, whether having an absolute and vested right to Peg, it follows as a matter of course, that she is entitled to her increase. With regard to the first point, I am of opinion, that Jane Ellis’ right vested absolutely, the mo-inent ol' the testator’s death, and that the life estate in Mary Ellis was nothing more than a postponement of the possession of the chattel in the person in remainder.

Writh regard to the second point, I am of opinion that the increase of a female negro, belongs to the person to whom the ancestor belonged. That Peg belonged to Jane Ellis, and of course her children did.

It is therefore ordered and decreed, that the hill ho dismissed with costs.

W. THOMPSON.

From this decree there was an appeal on the follow-, ing grounds:

First, — Because Jane Ellis’ estate in Peg, instead of an estate vested in possession or interest, was only a contingency.

*613Second, — The doctrine partus sequitur ventrera cannot be so applied to this case, as to convoy the increase of Peg to Jane Ellis, because the mother was not vested in her until after the birth of all the children of whom complainant claims distribution.

Third, — From the will of John Ellis, it does not appear to have been his intention to convey the increase of Peg to his daughter, Jane Ellis.

Fourth, — That the increase of Peg must be considered as intermediate profits accruing during the existence of the life estate of Mary Ellis, and before the vesting of the remainder, and therefore liable to be distributed among the heirs of John Ellis.

Fifth, — -That the increase of Peg should be divided, if not as the property of John Ellis, as the personal estate of his wife.

Gray and O’Neal complainant’s solicitors.

Mr. O’Neal, toreversethedecre&r — No absolute vested right in the daughter and devisee. — The words of the will are a mere direction to executors, not a positive bequest. See other clauses of the will.

Mr. Crenshaw — This is a vested remainder, but unimportant whether vested or contingent; for whether vested or contingent the contingency has happened. Fcarne on Rem. 4th Ed. 148. 2 Fónb. 371. 3 Atk.

If the tenant for life had a right to the increase, she gave the increase expressly, and delivered it to the person in remainder.

The sale was made by the remainderman with the consent of the tenant for life.

The appeal was heard by the Chancellors Desans-sure, Waties, James and Thompson, who unanimously affirmed the decree of the Circuit Court.