#### RICHMOND M. PEARSON, Adm’r, of MARTHA TENNESON v. JOHN TAYLOR

Martha Tennesson the first child that should be born alive of the. body of Dice after the time he was speaking, to wit: the date of his will, and that she would take such first born child whether born in the life time of the testator or after his death. Where a testator bequeathed his negro woman Dice to his daughter Betsey, and added “ the first born of Dice that is living hereafter to fall to Martha Tennesson,” it was held, that the intention of the testator was to give to

This was an action of trover for a negro slave, named joe tried at Davie on the last circuit before his Honor Judge . SETTLE.

The plaintiff claimed under the following bequest in the will of Caleb Webb, deceased — “ and to my eldest daughter Betsey, I will and bequeath forever to her and her heirs, one negro woman Dice, one horse beast, one cow and calf, one bedstead and furniture for the same, the first born of Dice that is living hereafter to fall to Martha Tennesson, three sheep and one saddle to Betsey.” It was alleged by the plaintiff that the slave Joe, for the conversion of whom this suit was brought, was the first born of Dice as described the will. There was testimony showing that there were other children born of Dice before Joe, but whether they were born before or after the date of the will, did not

His Honor instructed the jury that the will of the testator ^ not ta^e e^"ect bis death, and that no child of Dice bom alive during the life of the testator would satisfy the bequest; but if they believed that Joe was the first born j)jce; after the death of the 'testator, the plaintiff would be entitled to recover. The jury returned á verdict for the *61defendant, and the plaintiff, moved for a new trial upon the ground that the Judge ought to have charged the jury, that the plaintiff was entitled to recover, if Joe were the first born of Dice after the date of the will, though he were born in the testator’s life-time. The motion was overruled and the plaintiff appealed.

Dec. 1838.

Boyden and Cook, for the plaintiff.

D. F. Caldwell, for the defendant.

Daniel, Judge,

after stating the case proceeded as follows : — It seems to us, that the intention of the testator, was to give to Martha Tennesson, the first child that should be born alive of the body of Dice, after the time he was speaking, to wit, after the date of his will. The first child born alive of Dice, after the date of the will, would be a specific legacy; and if that child died, in the life-time of the testator, it would be the legatee’s misfortune. But on the contrary, if Joe was the first child born of Dice after the date of the will, the plaintiff would be entitled to recover hjs value, whether he was born before or after the death of the testator. We think the Judge erred when he said, that no child of Dice born alive during the life of the testator would satisfy the bequest.

The judgment must be reversed and a new trial granted.

Pee, Curiam. Judgment reversed.