#### Carr vs. Crain et al.

A peremptory non-suit will not be ordered, without the plaintiff’s consent — Marlin $ Van Horn vs.Webb, 5 Ark. jS. 74, cited and re-affirmed.

This court will not pass upon the sufficiency oi the evidence to sustain the issue, uuless it appear upon the record, that exceptions were taken to it, by motion for new trial, or otherwise, and passed upon by the court below.

A bill of exceptions, setting out all the evidence, and the instructions of the court, to which exceptions were taken, and no other exceptions appearing, presents no ques. tion to this court, except those arising upon the instructions to which exceptions were taken.

J. T. having a lawful wife and several children by her, left her and cohabited with F. S. by whom he had several illegitimate children. By last will and testament, he devised certain slaves to F. S. for life and at her death to such of his natural children by her, and named in the will, as she should designate : she died without any desig. nation — Held that the slaves went to all the natural children, share and share alike.

Writ of Error to the Circuit Court of Perry County.

Replevin, in the detinet, for three slaves, Maria, and her two children, Jack and Winny, brought by Harris Crain and wife Martha, James, William, Alfred and Jeiferson Tucker, James Campbell and wife Melissa, Richard H. Burtram and wife Fanny against Ja’s Carr, and determined in the Perry circuit court, at the April term 1842, before Clendenin, judge.

Defendant filed two pleas, first, non detinet, to which plaintiffs *242took issue; second, property in himself, to which plaintiffs replied in short, and defendant j oined. The cause was submitted to a j ury, and their verdict was for plaintiffs. Pending the trial defendant took two bills of exceptions, from the first of which it appears :

The plaintiffs to maintain the issues on their part, introduced the will of John Tucker deceased, which substantially follows: “ In the name of God, &c., I, John Tucker, of Conway county, Territory of Ark., of sound mind, &c. &c., do make this my last will and testament : First, that my body be decently interred: Second, my just debts to be paid by my beloved companion Fanny Smith, and my natural son, James Tucker, by said Fanny, hereby appointed my executrix and executor: Third, I give and bequeath to my lawful wife Happy Trance (her mainden name) one dollar as all of that portion of my estate hereby intended to be conveyed to her, or such heirs of hers as may have been born since she left my bed and board: Fourth, to my daughter Elizabeth Lucas, by my lawful wife, one dollar and no more: Fifth, to the heirs of my deceased daughter, Sally Madlock, one dollar and no more: Sixth, to the heirs of my deceased son, Larry Tucker, one dollar each, and no more: Seventh, I give and bequeath to my companion, Fanny Smith, by whom I have seven children living, bearing my name (hereinafter named) during her natural life, and to be given by her to such of her children, hereinafter named, as she may think proper, the following property, to-wit: three slaves, one man named Louis, between 30 and 40 years of age, one woman, named Diana, about 31 years of age, and one girl, named Maria, twelve years of age, and the increase of said slaves. And I do further give and bequeath to my beloved companion, the said Fanny Smith, all my household and kitchen furniture of every description, together with three head of horses, to-wit: a sorrel horse, sorrel mare, and one bay horse, as her portion of my estate. Eighth, I give and bequeath to my beloved daughter Martha Crain, by my said companion, Fanny Smith, wife of Harris Crain, one slave girl, named Julia, aged about three years, and her increase forever, to her and her heirs as her portion of my estate. Ninth, I give and bequeath to my beloved son (by my beloved companion Fanny Smith,) James Tucker and *243his heirs the following, to-wit: half of my mansion tract of land on which I now reside with my family in Conway county, &c. also one slave boy, William, aged about nine, together with that portion of my estate that I have heretofore given him possession of, as his portion of my estate. Tenth, I give and bequeath to my son (by said Fanny) William Tucker and his heirs the following property, to-wit: first, the remaining half of my mansion tract of land, &c. also one slave boy named Jackson, about seven years of age, together with that portion of my stock heretofore put in his possession, as his portion &c. Eleventh, I give and bequeath to my son Alfred Tucker (by my beloved Fanny) and his heirs that fraction of land on which he now lives in the county of Pope ; one slave, named Wesley, aged about five years, together with one half of my cattle belonging to that plantation as his portion &c. Twelfth, I give and bequeath to my beloved daughter Melissa Titsworth (by said Fanny) and to her heirs one slave, Minerva, aged two years as her portion &c. Thirteenth, I give and bequeath to my beloved son Jefferson, (by said Fanny) and to his heirs that tract of land on which I have made a crop, lying in Pope county &c., also one slave named Richard, aged about twelve years, together with one half of the stock on said plantation as his portion &c. Fourteenth, I give and bequeath to my beloved daughter Fanny Tucker, (by my beloved companion Fanny Smith) and her heirs one slave girl, named Nancy, aged about two years, and her increase, as her portion. Fifteenth, and last clause of this my last will and testament hereby confirming each and every clause heretofore expressed, and in case any portion of my estate is not heretofore expressed or conveyed by this will, it is hereby made my will and wish that all debts due me by note or otherwise together with such other property as may have been omitted, be collected by my said executrix or executor and when so collected equally divided among my said seven natural children by my said beloved companion, Fanny Smith, giving each an equal portion of such effects as may have been omitted, to the entire exclusion of all lawful children that I may have had by my lawful wife, hereby requiring at the hands of my said executrix and executor, a faithful performance of this my last *244will and testament. In testimony whereof,” &c. The will was regularly probated and admitted to record before the probate court of Conway county 26th Nov. 1832.

Which will defendant admitted to be valid and in full force. Defendant also admitted to the jury the following facts : That said plaintiffs Martha Crain, James Tucker, William Tucker, Alfred Tucker, Jefferson Tucker,' Melissa Campbell and Fanny Burtram were the identical persons named in said will as the children of said John Tucker and Fanny Smith: that said Harris Crain was the husband of said Martha: that James Campbell was the husband of said Melissa and that he married her since the death of said John Tucker: That said Richard H. Burtram was the husband of said Fanny and married her since the death of said John Tucker: That said slave Maria in the declaration mentioned was the same slave mentioned in the seventh clause of said will, and that said other slaves in plaintiffs’ declaration mentioned, to-wit: Jack and. Winny, were the children and increase of said slave Maria born since the making of said will and the death of said John Tucker. That after the death of said John Tucker said Fanny Smith in said will mentioned intermarried with said defendant James Carr, and that after-wards, to-wit: about the 12th February 1841, said Fanny Smith died intestate in this State Avithout ever having given said Maria or any of her increase to said plaintiffs or either of them, and without haying made any disposition whatever of said slave Maria or either of her said children. Defendant further admitted that he, defendant, retained possession of said Maria and her said children Jack and Winny, about one week after the death of his wife the said Fanny, and refused to deliver them to said plaintiffs though requested. That the hire of the slaves was worth five dollars per month. That John Tucker died in Conway county some time in Nov. 1832 : that about two years after his death said Fanny Smith married defendant in said county, and she died in said county about the 12th Feb. 1841. Defendant also admitted that he detained said slaves in his possession, and refused to give them up to plaintiff until they were replevied by the sheriff in this case: that said will was duly probated and recorded as aforesaid. Plaintiffs then ad*245mitted that said children in said will mentioned as the children of said John Tucker and said Fanny were the natural and illegitimate children of said John Tucker, which was all the testimony given in the case. Defendant then moved the court to instruct the jury to render a verdict in the case as in case of non-suit, which motion the court overruled, and defendant excepted.

From the other bill of exceptions it appears that after the evidence was closed, defendant moved the court to instruct the jury as follows: to-wit: “ If the jury believe from the evidence that John Tucker bequeathed the slave Maria and her increase (the slaves named in the declaration) to Fanny Smith during her life, with power to her to give the same slaves to the plaintiffs or such of them as she might think proper, and that said Fanny Smith after the' death of said John Tucker intermarried with the defendant, Carr, and died, never making any bequest or giving said slave Maria and her increase to plaintiffs or either of them, the jury must find for the defendant”— which instructions the court refused to give, and defendant excepted.

Defendant brought error, and assigns for errors, that the verdict is contrary to law: 2d, the court erred in refusing to direct the jury to return a verdict in favor of defendant below as in case of non-suit: 3d, in refusing to charge the jury as moved by defendant.

Cummins, for the plaintiff.

It is contended that replevin in the detinet would not lie in the present case, even if the plaintiffs below had title to the property sued for. This action can only be maintained where there has been actual possession in the plaintiff Pirani vs. Barden, 5 Ark. 11. 81. Trapnall vs. Hattier, 1 English’s R. 18. Sec. 39, Title, Replevin, Rev..St. 659.

The plaintiffs below are admitted to be illegitimate children of Tucker. They could not therefore take property by descent from him, in other words, they were not his heirs. 2 Kent’s Com. 211. This rule of the common law never has been changed, except so far as to permit illegitimate children to inherit from the mother. Sec. 3 chap. 49, Rev. St.

*246Mrs. Smith or Carr had but a life estate in the property, and no one could take by descent from her by virtue of the above statute. Upon her death without an execution of the power in the will there would be resulting trust in favor of the legal heirs of Tucker, and the property would descend to them. 1 Lomax L. R. Pr. 184, 208, 209. Sugden on Pow. 237, ’8. Doe ex dem. Hayter vs. Join-ville et al. 2 East 95, Croft vs. Slee, 4 Ves. Jr. 60. Langham vs. Nemry, 3 Ves. Jr. 467. 2 Story's Eq. 416.

It is true that where a party takes property by will, with a power superadded to give it to such person as the party pleases, or a power of the like purport, the person would take an absolute estate in the property. For he would have as absolute dominion over it as could be bestowed. Bradley vs. Wescott, 13 Ves. Jr. 453. 4 Kent's Com. 320.

Words of inheritance were not necessary in a will to give a fee in real estate, where there was a clear intention expressed to give the absolute property. The above rule therefore applies as well to real as personal estate. Holdfast ex dem. Cowper vs. Martin el al. 1 Durn. Sf East, 411. Fletcher vs. Smiton, 2 Durn. Sf East, 655. Smith et al. vs. Berry et al. 8 Ohio R. 367.

But where there is an express limitation to the first taker, for life only, with a power superadded to give the property by deed or will to a particular person or class of persons, or without pointing out the manner of giving the property, to give it to a particular person or class of persons, or to such as tenant for life should select out of a particular class, (as was the case here,) then and in all such cases the first holder would take an estate for life simply, and no one could take by transmission from tenant for life, and could only obtain title by virtue of a due execution of the power in his favor. Reid vs. Shergold, 10 Ves. J. 370. 4 Kent's Com. 320, Croft vs. Slee, 4 Ves. J. 60. Langham vs. Nemry, 3 Ves. Jr. 467. Bull vs. Varday, 1 Ves. Jr. 270 notes. Holmes vs. Coghill, 7 Ves. J. 499. Wright vs. Atkins, Coop. 115. 3 Leon. 71. 4 Leon. 41. Burford vs. Street, 16 Ves. J. 135. Reith vs. Seymore, 4 Russ. 263. Sug-den on Pow. 119,120. 2 Story's Eq. 275, 415, 416, 417, 418, $ *247 note at'page 416, 417. Doe vs. Thorley, 5 East’s R. 456. Marlborough vs. Godolphin, 2 Ves. J. 61.

In such cases the testator manifests his intention to deprive the tenant for life of the power of applying the absolute property to his own uses; and by an exercise of the power to prevent the estate’s descending in the ordinary course. And the intention of the testator must prevail.

In some cases, indeed, where the testator points out specifically the property, and the persons to whom it is to be given and expresses his “confidence,” or “recommends,” or “requests” that the property should be so given, a trust will be created in favor of the persons indicated as beneficiaries; and they will thus be enabled to hold the property. Taylor vs. George, 2 V. fy B. 378. Peirson vs. Garnett, 2 Broun. 226. Paul vs. Compton, 8 Ves. Jr. 380. Pushman vs. Filiter, 3 Ves. 8. Martin vs. Keighley, 2 Ves. J. 335. Parsons vs. Baker, 18 Ves. Jr. Ft6. Cruroys vs. Coleman, 9 Ves. 323.

In such cases a court of chancery will aid a defective execution of a power, or carry out the trust, if no attempt has been made to execute the power. Cruroys vs. Coleman, 9 Ves. 323. Sugden on Pow. 174,175.

In these cases the courts proceed upon the ground that the testator intended the property to go in every event to the parties named as beneficiaries. Even if the present were a case of the above description it would not aid the plaintiffs below, for they would have to apply to chancery for relief, and could not assert their rights in a court of law as the above authorities conclusively prove.

On the contrary, however, where there is a mere naked power of appointment, there can be no transmission of property either at law or in equity without an appointment in conformity with the power. Croft vs. Slee, Reid vs. Shergold, 3 Leon. 4 Leon. Coop. Holmes vs. Coghill, Bull vs Vardey, before cited. 4 Kent’s Com. 320. Sug. on Pow. 119. 120. Notes 2 to Pigott vs. Bullock, 1 Ves. 479. Bradley vs. VYestcott, 13 Ves J. 453. Wright vs. Atkins, Tur. Sf Russ. 143. 2 Story’s Eq. 946, p. 275,415,416, 417.

It is contended that there was a mere naked power in this case, *248and consequently that there could be no transmission of property without an execution of the power. But in the most favorable view of the case for the plaintiffs below it could only be contended that the will created a trust in their favor. This would effectually defeat the present action.

Fowler, contra.

The court properly refused to instruct the jury to find as in case of non-suit.

First, because evidence had been given on both sides of the case. 4 Ark. R. 525.

Secondly, because the court had no legal right to give such instruction in any case — much less in replevin. Barrett vs. Forres-ter, 1 John. Cas. 247. Goodrich vs. Fritz, 4 Ark. R. 525. Martin et al. vs. Webb, 5 Ark. R. 74.

The other instruction moved for was properly refused also, because it is an abstract proposition not based upon the evidence or pertinent to the issues in the cause. Robbins vs. Fowler, 2 Ark. R. 143. State vs. Hand, 1 English’s R. 172.

As no objections were made to the sufficiency of the proceeding below, but those raised by the instructions which were rightly overruled; and no new trial was ashed, the plaintiff in error must in this court be restricted to the specific points raised there by his motions for instructions. All his objections to the form of the action under the statute are therefore foreign to the record. And even if they could be now used, they could not avoid if the plaintiffs below had legal title; because the possession of Carr’s wife was their possession. Danly vs. Edwards et al. 1 Ark. R. 443. Frier vs. Jackson, 8 John. R. 507. State vs. Hand, 1 English’s R. 172. Van Gorden vs. Jackson, 5 John. R. 467.

It is a well settled principle that in the construction of wills, the intention of the testator must be effectuated, as far as such intention is consistent with the rules of law. Jackson vs. Brown, 13 Wend. R. 440. Nicholl vs. Nicholl, 2 Black. Rep. 1162, in note. Woody vs. Walker, 3 Ark. R. 185. Griffith vs. Harrison et al. 4 Tenn. R. 748, 749. And in giving effect to such intention the particular shall be sacrificed to the general interest. 2 Bl. R. 1172 in *249 note 4 Ternii Rep. 748, 749. Seaward vs. Willock, 5 East 206, 207.

A testator devised to his wife the use &c. of his estate, real and personal, during her natural life, then to be equally divided between whoever his wife should think proper to make her heir and his brother. She died without a will and it was decided that by suffering her legal representatives to succeed her, she actually made them her heirs, as much as if she had pointed them out by will. Sherman vs. Sherman's Ex., 1 Wash. {Va.) R. 272.

In this case the seven children by the will took vested interests in the slaves to be divested only in the event of their mother so directing it under the will before her death; an act which she did not perform; and therefore the seven are the joint legal owners. Walker vs Moody, 3 Ark. R. 201, 203, 204. Coleman vs. Hutchinson, 3 Bibb R. 210.

Johnson, C. J.

The plaintiff in error, after the testimony was closed, moved the court to instruct the jury to find as in case of a non-suit. The power of the circuit courts to order peremptory non-suits was fully discussed and settled in the case of Martin & Van Horn vs. Webb, 5 Ark. R. 74. The court, in that case, fully recognized the doctrine laid down in 1 Pet. 471, Elmore vs. Grimes, where it was held that a non-suit could not be ordered in any case without the consent and acquiescence of the plaintiff. The plaintiff might agree to a non-suit, but if he do not so choose, the court cannot compel him to submit to it. The correct motion is, to instruct the jury that if the evidence has not proved a matter necessary to be proven, they must find for the defendant. This point has been repeatedly ruled by the supreme court of the United States, ánd is not now open to controversy. It is contended that the action is misconceived, and that the facts and circumstances of the case are not such as to sustain and support the declaration. We do not conceive that point to be raised by the record as the court below was not called upon either during the progress of the trial, or after the rendition of the judgment to pass upon it. If the plaintiff intended to object to the testimony upon the ground that it did not *250support the allegations, he should have made his objection at the time, or have moved for a new trial after the verdict was rendered against him. He did not elect to do so, but remained silent and suffered the evidence to go to the jury, and then moved the court to instruct as to its legal effect. The province of a bill of exceptions is not to draw the whole matter into examination again, but only the points to which it is taken; and the party must lay his finger on those points which must arise, either in admitting or denying evidence, or matter of law arising from a fact not denied, in which either party is overruled by the court. Under this view of the^case, it is not believed that the record presents the question, and consequently it would be idle to consume time in the investigation of it.

The first motion is, that in case the jury believed from the evidence that John Tucker, the testator, bequeathed the slave Maria and her increase (the slaves mentioned in the declaration) to Fanny Smith during her life with power to her to give the same to the plaintiffs or such of them as she might think proper, and that said Fanny Smith, after the death of said John Tucker, intermarried with the defendant James Carr and died without making any bequest or giving said slave Maria and her increase ,to the plaintiffs or either of them, the jury must find for the defendant. This instruction was refused by the court, to which opinion the defendant below excepted and to save the same filed his bill of exceptions. The refusal of the court to give this instruction brings us to the main question involved in the cause and the one upon which it will necessarily turn.

The case of Shermer vs. Shermer’s Executors is strong in point. See 1 Washington's Rep. 272. In that case it was in evidence that John Shermer, by his will, devised to his wife the use and profits of his whole estate both real and personal during her natural life, and after that was ended, then the whole of his estate, exclusive of that already given to his wife to be equally divided between whoever his wife should think proper to make her heir or heirs, and his brother Richard Shermer. The wife died in 1775, a few days after the testator without making any disposition or appointment of her *251part of the estate. The executors sold the estate agreeably to the will and distributed one moiety thereof amongst the relations of Mrs. Shermer; for the recovery of which the suit was brought against the executors and distributees by the appellant, the son, heir and executor of Richard Shermer, the brother named in the will. It was there held upon that state of facts, that he did not give her a power to dispose, but to name the person or persons she might choose to succeed to her part, and that it was doing small violence to the words, even in their critical meaning to say that by suffering her legal representatives to succeed her, she has actually made them her heir or heirs, as much so as if she had pointed them out by an express devise. The court further said that the cases produced tended to prove that an express estate for life to the wife with a power to dispose of the fee, should not turn her estate for life into a fee. If the law would cast the property upon the wife’s relations in that case, for a much stronger reason would the plaintiffs in this succeed to the fee. In that she was authorized to select the party who should succeed to the fee, and that without any restriction whatever, but in this she was confined in her choice to one or more, all of whom were designated by name in the will of the testator. It is contended by the plaintiff’s counsel that this is a resulting trust, and that the moment the wife died not having executed the power of appointment, the estate resulted back and fell upon the heirs at law of the testator.

In deciding upon the legal operation of a will, courts look alone to the intention of the testator, and that intention is to be collected from the expressions therein used and from the relative situation of the parties, as well as the state and circumstance of each case. Can any doubt be entertained as to the intention of the testator in this case? It is perfectly manifest that he had discarded his lawful wife and that he entertained but little regard for her children. He could have furnished no stronger evidence of his entire want of affection for his lawful wife and children, than he has given in his last will and testament. The legacies of one dollar each are merely nominal, and must be conclusive evidence to every one that his object was to disinherit them, and to give his entire estate to Pan-*252ny Smith and his natural children. To say that the estate vested absolutely in Fanny Smith would not improve the condition of the plaintiff, as the defendants are her lawful heirs and would succeed to the inheritance.

We think that the plain intention of the testator is that one or all of his natural children should enjoy his property after the death of their mother, and that she having died without designating any one in particular, it is just and proper that it should be' distributed equally amongst them,, and that they should enjoy it share and share alike. We have examined this case in every light of which it is capable, and we can arrive at no other conclusion but that the testator intended Fanny Smith to point out and designate which of her children should take the fee, and in case she should fail to make such selection, that then they should take in equal proportions.

Under this view of the law we have no alternative but to affirm the judgment. Judgment affirmed.