#### Thomas Southerland and Wife v. John Webb.

A, by his will devised his property to his two children, and if either of them died without leaving issue, the whole of his estate both real and personal to go to the survivor.

B, one of the children, upon a hill for an account against the executor of A, obtains a decree for a sum of money; in part performance of which, he accepts certain negro slaves which were not of the property of his testator. On the death of B, without leaving issue, the survivor is not entitled to recover these slaves-from a stranger to whom they had been bona fide sold by B.

Detinue for three negro slaves, tried at Edgecomb, Spring term, 1833, before Strange, Judge,-on a case agreed. The opinion of the court being for the defendant, judgment of nonsuit was rendered and the plaintiffs appealed.

The case stated that Miles Hardy made his last will and testament, and thereby devised lands and bequeathed specifically several slaves to each of his two children Henry and Harriet. In the said will there is the. following clause: “ It is however, my will and intention that if* either of my children aforesaid, at their death, should leave no issue lawfully begotten, that the wholé of my estate both real and personal should descend to the survivor. ” The testator appointed Christopher Dyfik-ett, executor of his will, who qualified and took upon himself the management of the estate. The executor died after making his will, and appointing William G. Ducket his executor, who qualified as such. Henry Hardy, one of the legatees under the will of Miles Hardy, filed his bill in equity, against William G. Ducket as executor of C. Ducket, who had been executor of Miles Hardy, for an account of the estate of Miles Hardy. And there was a decree in his favor for the sum of g 1344 66 with interest. Henry Hardy agreed to take slaves in payment of the said decree, and the slaves, for which this action is now brought, were delivered over by William G. Bucket to him in part performance of this decree. These slaves formed no part of the estate of 'Miles Hardy, but were delivered over as part of the estate of C. Ducket, in pay*246ment of the decree. Henry Hardy sold the slaves Iona Jide, and for a valuable consideration, to the defendant. jjenry ffar¿y i,as since died without leaving issue, and Harriet, his sister, who has intermarried with Sutherland Dow claims the slaves under the will of her father Miles Hardy.

Badger and Attorney-General for the plaintiffs.

Monlecai for the defendant.

Daniei, Judge.

The slaves mentioned in the plaintiff’s declaration, were not the property of Miles Hardy and therefore did not pass to the plaintiff Harriet, on the death of her brother without issue, under the executory devise or bequest contained in her father’s will. The slaves originally belonged to Ducket, and the value of them went as so much money in satisfying the decree that was obtained against Ducket as executor. The transfer of these slaves by Dueket to Henry Hardy, vested in the said Henry the absolute legal estate. The amount of the decree, perhaps did belong to the plaintiffs, after the death of Henry without issue; and her interest* in the said decree might have been secured to the plaintiff by the court at the time it was rendered. But the Superior Cqjirt of Edgecomb was trying the question of legal property, and had no power to substitute the slaves that were rendered by Henry in satisfaction of that decree, for the money itself. We therefore think, that the judgment rendered in the said Superior Court must be af-finnqd.

Per Curiam — Judgment aeeirmrd.