#### Erwin and others v. Kilpatrick and others.

v I From Rowan. J

The increase of slaves, bom during the life of a legatee for life, belong to the ulterior legatee, who is the absolute owner.

This was a petition, filed in the Court below against the defendants as executors of the last will of William Erwin, deceased.

The petition stated, that the petitioners were the daughters of the testator, who having made a last will and testament, died, and that the defendants proved the will and *457assumed the execution thereof. That among other he-quests, the will contained the following:

, , ., , . . . “ If my wife cease to be my widow by marriage, it is my will, that she shall have her bed, and her choice of one horse, and a fifth part of the household and kitchen furniture, hut to have no further claim to the use of my negroes. In this case, or at her death, it is my will that my son Joseph shall have my negro named Isaac, and my son John shall have Jack and Lyd his wife, requiring of him some care of and attention to such of his sisters as may remain unmarried.”

The petition further stated, that after the death of the testator, and during the life of his widow, the slave Lyd had issue two children Alfred and Yerdy, after which the widow died; that the testator’s son Joseph is dead without issue, and that John Erwin claims the negroes. The petition then insists, that the negroes Alfred and Yerdy were undisposed of by the will, and prays that the defendants may be compelled to make distribution among the petitioners and John Erwin, the surviving children of the testator.

The answer admits all the facts set forth in the petition, and submits to the Court whether the petitioners have title. The defendants in their answer then allege, that they put the negro slaves into the possession of the widow according to the will, and she retained the possession, and they insist that by thus leaving the property with the person entitled to the life estate, they have discharged their duty as executors, and are not liable to- be called upon by the petitioners in the character of trustees.

John Erwin the son being also made a defendant, answered, claiming the negroes Alfred and Yerdy (the children of Lyd horn during the life estate of his mother) because he was by the will entitled to the mother Lyd after the death of the widow.

The cause coming on to he heard upon the petition and answers in the Court below beioreNASH judge, he ordered *458the petition to be dismissed; and the petitioners appealed to this Court.

In this Court the case was submitted by Mr. J. Martin Up0n former decisions that the remainder man was entitled to the increase. (1 Hay. 234.)

Taylor, Chief Justice.

Ever since the case of Timms v. Potter, the question arising in this case has been considered at rest; and it would he attended with the most mischievous consequences again to draw it into controversy. It has now become a fixed rule of property, that the increase of slaves, born during the life of the legatee for life, belong to the ulterior legatee who is the absolute owner. The judgment must be affirmed.

The rest of the Court concurring;

Judgment affirmed.