#### CELESTIA A. TILLMAN vs. ELIAS SINCLAIR.

A limitation in a deed, by 'a donor, of slaves to himself for life, “ and after his death, in the event of his having no heirs,” to his niece, is, by the operation of the act of 1823, 1 Rev. Stat. ch. 37, sec. 22, in connection with that of 1827, 1 Rev. Stat. ch. 43, sec. 3; or, by the former, and the principles of the common law, independent of the latter act, valid, and vests a title to the slaves in the niece, upon the death of the donor without children.

A bequest by a testator, “ in the event of his having no heirs,” to his niece, is good at common law, and vests a title in the niece, if the testator die without children.

This was an action of Detinue, for three negro slaves,' named Beck, Eli and Enos, tried before his honor Judge Bailey, at Montgomery, on the last circuit.

It was admitted that the defendant was in possession of the slaves in question, as the administrator of Howell Harris, Junior. The plaintiff claimed the said slaves under the following instrument, which was offered in evidence:

“ Know all men by these presents, that I, Howell Harris, *184jr.; 0f the county of Montgomery and State of North Carolina, for and in consideration of the natural love and affection which I have for my niece, Celestia Ann Tillman, daughter 0f j0hn and Eliza Tillman, do give, grant and convey to the said Celestia Ann Tillman, the following negroes, to wit: one negro woman by the name of Beck, and her child Eli; and one negro boy named Enos. The condition of this deed of gift is such, that the aforesaid negroes are to remain in the possession of him, the said Howell Harris, Jr., during his life time; and the monies arising from the hire of the said negroes, are to be collected for his use and benefit; and, after his death, in the event of his having no heirs, then, in that case, the aforesaid Celestia Ann Tillman to have and to hold the said negroes, Beck, Eli and Enos, against the claim or claims of all persons whatsoever. In witness whereof, the said Howell Harris, Jr. hath hereunto set his hand and seal, the I6th of November, 1836.

HOWELL HARRIS, seal.

Witness, Far. Martin,

Mart Harris.”

There Was a dispute, on the trial, whether this instrument had ever been delivered — as to which several witnesses were éxamined — but it is unnecessary to state their testimony, as all the points made on the trial were abandoned in the Supreme Court, except that relating to the construction of the instrument; as to which the defendant insisted that the limitation contained in the deed was too remote, and did not vest a title in the plaintiff. But his Honor, being of a different opinion, charged the jury that the instrument did vest a title to the slaves in the plaintiff. The jury returned a verdict for the plaintiff; upon which she had judgment, and the defendant appealed.

Badger for the defendant.

Mendenhall and Winston for the plaintiff.

Ruffin, Chief Justice.

We have bad no hesitation in adopting the construction of the deed in favour of the plaintiff.

By the act of 1823, 1 Rev. Stat. ch. 37, sec.- 22, a limita*185tion by deed of slaves to one in remainder, after a reservation to the donor for his life, is unquestionably good; because, had it been a bequest for life from another person to this donor, and then over, it would, in 1823, have been effectual. But it is said, that in the present case it is different, inasmuch as this is a limitation, not merely after a life estate in the donor, but “ after the death of the donor, having no heirs;” because, at the making of the act, a gift over by will was void, which was limited to take effect upon the death of a first taker “without heirs,” or “ having no heirs”; and this deed is not helped by the act of 1827", 1 Rev. Stat. ch. 43, sec. 3, for the reason, that the act of 1823 only makes good such limitations by deed, as were then good by way of executory devise.

We see no reason for thus restricting the operation of the act of 1823. It is a remedial and beneficial act, relating to limitations of a species of property, in which consists a large portion of the substance out of which our citizens make family provisions and settlements. It ought, therefore, to be construed with a liberality which will admit all those modifications of interest in the property, which the heads of families usually desire, and the interests of the whole family may require, as far as the words will allow the Court to go. The general purpose of the Legislature may be plainly seen. It was, to authorise whatever might be done by will, to be done also by deed. Why should it be supposed that the Legislature meant such things only as might, at that time, be done by will? If, afterwards, it was thought proper to render, by statute, a limitation by will good, which then was not good, for the same reason, while the act of 1823 is left in the' statute book, it would seem that the Legislature must wish, and have designed,- that a like limitation in a deed should operate effectually. There could be no motive for tying down the' law of 1823 to the very moment of its enactment. On the' contrary, the sound construction of the act seems to be, that only one thing is requisite to bring a case within it — and that is, that the deed should be “ thereafter made.” If it be, and’ at the time of the making of the deed, its provisions, if contained in a will, would in law be good, so shall they be in* *186the deed. Neither the object nor the language of the Legislature can be otherwise satisfied.

Then, applying the act of 1827 to this question, it puts it beyond doubt. The act does not, indeed, use these very words, “ having no heirs”; yet they are equivalent to those found in it, which are mentioned but as examples of a class of phrases then in the minds of the law-makers. As the means of ascertaining the event on which a slave is to go over, and the period within which that event must occur, if it occur at all, the effect of the act is to make the popular acceptation of all such expressions as those enumerated in it, their legal signification in future, instead of that which had previously prevailed: so as to give the thing to the first taker absolutely, if he leave a child surviving him; or, if the first taker leave no such surviving child, to give the thing then to the remainder man absolutely.

But without such a construction of the act, and supposing that of 1823 not to have within its purview devises rendered valid by subsequent enactments; yet we think the provisions of the deed before us might be supported, independent of the act of 1827, upon a principle of the common law. This disposition is by one not having a child at the time, and to take effect in default of heirs — not of a devisee or of any third person, but of the donor himself — it is plain from the fact, that the donee is stated in the deed to be the niece of the donor, that the term “ heirs” here means children, or issue, or heirs of the body. It is perfectly clear, when the limitation in a will is upon the failure of the testator'1 s own issue, that the intention must merely be to create a contingency, on which the legacy will take effect at the death of the testator, if there then be no issue. A testator means, in such a case, to say, this is my will on condition, or provided I leave no child of my own; but if I leave a child, then of course I shall not wish to give my property away from him, and this shall not be my will.” The cases upon this subject, from that of French v. Caddell, 3 Bro. P. C. 257, down to that of Sanford v. Irby, 3 Barn. & Ald. 654, are collected in 2 Pow. Dev. 567, Mr. Jarmin’s edition; find they clearly establish the rule here laid down.

*187Upon the other points stated in the record, the counsel for the defendant properly, as we think, yielded the case: and upon the whole, therefore, the judgment must be affirmed.

Per. Curiam. Judgment affirmed.