#### SUSANNAH MATTHIS vs. JOSEPH RHEA.

Where a testator bequeathed as follows : “ I do will and bequeath unto my wife, Susannah, all my estate and effects remaining in my executor’s hands, after all my just debts are paid, the said property to be and remain my beloved wife’s during her natural life; she is not allowed to sell nor dispose of said effects in any shape whatever, agreeable to this my last will, with the exception of a negro boy child by the name of Larkin. I then further will, that at the decease of my wife, Susannah, command my executors to make an equal distribution of the said property between my five lawful heirs ;” and nothing further is said about Larkin •• HelAby the Court, that the absolute interest in the boy Larkin, passed to the widow Susannah.

This was an action of detinue to recover possession of a negro boy named Larkin, tried at April Term, 1841, of Wilkes Superior Court, before his Honor Judge Manly.

The plaintiff claimed under the will of her late husbandj William Matthis, a copy of which was produced on the trial, and is hereunto annexed. It was then admitted by the par-, ties, that the legacy of the slave in question was assented to by the executors of the testator, and that the slave went into the possession of the plaintiff, where he remained until a short time before the bringing of this suit; that he was then taken by the defendant, who detained him at the time of the bringing of the action, and still continues to do so.

The presiding Judge instructed the jury that the plaintiff was entitled to recover; that they should, in making up their verdict, estimate the value of the slave detained, and also assess damages for his detention, which would be measured by the value of his hire from the time he was taken by the defendant, up to the trial of the action. The defendant insisted, that the jury ought to assess only the value of the life estateofthe plaintiff, but the judge refused so to instruct the jury.

There was a verdict and judgment for the plaintiff, from which the defendant appealed.

*395Copy of the Will of William Matthis, referred, to:

. “February 1st, 1834. This my last will and testament, in the name of God, amen. Item, 1st. I, therefore, feeling my infirmities so sensible, showing me I must shortly drop into the way appointed unto man, into the grave, though being perfectly sound in mind, and in possession of my natural good senses, I do make this my last will and testament.— Item, 2d. I therefore recommend my soul to God, the giver of the same, and do request my body to be decently buried by my executors, at the expense of my estate. Division ; I therefore, for the love I have and bear unto my wife, Susan-nah, do will and bequeath unto her, all my estate and effects remaining in my 'executors’ hands, after all my just debts is paid, the said property to be and remain my beloved wife’s during her natural life. She is not allowed to sell or expose of said effects, in any shape whatever, agreeable to this my last will, with the exception of a negro boy child by the name of Larkin. I then, further will, that at the decease of my wife Susannah, command my executors to makean equal distribution of the said property between my five lawful heirs. My further will is, that my step-son, Joseph Rhea, shall have an equal share in the division of my land, and nothing else of my estate. I, therefore, feeling a confidence in the honesty of my friends, Benjamin F. Martin and Thomas Matthis, do appoint them my lawful executors, to execute this my last will, with full authority to do the same.

Signed and acknowledged in presence of

S. P. Smith,

Reason Bell. Wm. Matthis.”

D. F. Caldwell for plaintiff.

No counsel for defendant.

Gaston, J.

It seems to us clear, that it was the intention of the testator to bequeath to the plaintiff, the absolute property in the boy Larkin. To hold that he was excepted out of the gift to his wife, would be to make the testator die purposely intestate as to this boy, for unless he be included in this gift, there is not only no disposition of him during her *396life, but he does not fall within the disposition which is to ta^e effect at he1’ death, for that is manifestly confined to the same property, which in the previous part of the clause was bequeathed to her. To hold that the exception of Larkin is not from the entire restriction imposed upon the gift of the other property, but only from that part of the restriction which withholds the power of sale or alienation, would be absurd. No reason can be imagined for the testator expressly prohibiting such a power, as inconsistent with an interest for life in the other property, and cautiously providing that the prohibition should not attach to air interest for life in the boy. The only other interpretation that remains, is the one which we adopt, that the exception, with respect to the boy Larkin, is from the restriction imposed upon the gift of the other property, whereby that gift is reduced to an estate for life. The phrase, that “ she is not allowed to sell nor dispose of said effects in any way,” immediately following the wor^l| “during her life,” is obviously used out of abundant caution to declare the testator’s intent, that a life estate, and no more than a life estate was intended to be given in these effects, and both taken together, constitute the restriction from the operation of which the gift of Larkin was to be excepted. The position taken by the defendant, that the jury should have been instructed to find, not the entire value of the negro boy, but only the value of the plaintiff’s life interest therein,is predicated upon the supposition that the plaintiff had but an interest therein for life. As this supposition is deemed by us unfounded, we need not enquire, and therefore forbear to say, whether that position would have been correct or incorrect, had the title been such as was supposed.

Per Curiam, Judgment affirmed.