#### JAMES RICHMOND vs. SOLOMON VANHOOK & AL.

A testator bequeated to his wife a large amount oí real and personal property, for her natural life, and after her death to A. The wife died in the oí the testator: Held that the legacies to the wife did not lapse by her death, but that on the death of the testator they vested immediately in the remainder man.

Among other legacies, the testator bequeathed certain negro women and their children. They had children at the time of the execution of the will, and several born afterwards and before the death of the testator. Held, that these after born children did not pass under this bequest, but that they remained undisposed of by the will.

Some of these negroes undisposed of by the will had been placed by the testator in his lifetime in the possession of one of his sons, where they remained until the testators death — Held that there being only a partial intestacy, this could not be construed an advancement, so as to entitle such son absolutely to tne negroes on the testator’s death, under the provisions of the Act of Assembly, Rev. Stat. ch. 37, sec. 17. To constitute such an advancement, there must be an entire intestacy of the parent.

The testator bequeathed a desk with all that was in it — Held, that, by this bequest, all that was found in the desk at the testator’s death, whether there at the time of making the will or placed there subsequently by the testator, passed to the legatee.

The case of Jones v. Jones, Conf. Rep. 310, cited and approved; and the cases of Stallings v. Stallings, 1 Dev. Eq. Rep. 298. Hurdle v. Elliott, 1 Ired. R. 176. Ford r. Whidbee, 1 Dev. & Bat. Eq. 21, and Freemm v. Knight, 2 Ired. Eq. 75, cited and commented on.

Cause removed from the Superior Court of Law of Caswell County, at the Spring Term, 1845, by consent of the parties.

The bill states, that John Richmond died in the year 1841, having, in the year 1880, duly made and published his last willand testament, and which, after his death was duly proven, and letters testamentary granted by the proper court to the defendant Vanhook. By his will the testator devised as follows: “I give to my beloved wife, Mary Richmond, my dwelling house, all near out houses, and three hundred acres of land whereon 1 now live; also I give her one negro man, Gabe, one negro woman named Hannah, and one named Nicey and *582her children, and one named Isaac, and my chest and all that *n 1{> anc* a^ my household and kitchen furniture, and all alK* furniture, and three head of horses, and ten head of cows, and all my hogs and sheep, which property I give her during her natural life or widowhood, aud at her death, the above named property to return to John Currie Richmond;'’ that at the date of the will, Nicey had five children, and, between the date of the will and the death of the testator in 1841, she had five more. Elizabeth, one of Nicey’s children, before the making the will, had one child, and Frances, another cf Nicey’s children, had two children born after the date of the will, and Harriet had one born since.

The bill further sets forth, that by the 2nd clause in the will, the testator gave to the complainant, by metes and bounds, a part of the tract of land which by the first clause he had given to his wife for her life, and also several negroes, among whom were three negro women, to wit: Dinah, Suckey and Esther, each of whom nave had children since the date of the wilt. By the 3rd clause, the testator devises as follows: “ I give to my son, John Currie Richmond, the balance of my land not willed before; also 1 give him one negro woman named Sylvyand her five children ; one named Riah and her child; also I give him my desk and all that is in it.” And by the 4th clause, he gives the balance of his stock not willed, and his books, equally to be divided between his two sons, the plaintiff, James C. Richmond, and the defendant, John Currie Richmond; that Sally, the child of Riah, named in the 3rd clause, and Sylvy, have each since the date of the will, had several children. The bill further sets forth, that at the date of the will, the testator had two tracts of land, one of which was by the 1st and 2nd clauses, divided between the plaintiff and the widow ; and the other, by the third clause, was given to the defendant, John C. Richmond, and that he also had a large personal estate, which came to the hands of the executor, and most of which he had delivered over to the other defendant ; and among other things, was a large sum of money, consisting of specie and bank notes, all of which the defend*583ant, John C. Richmond, took possession of, claiming it as his, either under the first clause, giving to Mrs. Richmond the chest with all that is in it, or under the similar bequest in the third clause of the desk, directly to himself; that he claims the property real and personal, devised by the first clause to Mrs. Richmond for her life, because, she having died in the lifetime of the testator, the devise over to him became an immediate devise; whereas the bill alleges, that in consequence of the death of Mrs. Richmond, during the life of the testator, the devise to her became lapsed, and either sunk into the residuum, or the testator died intestate as to it. And that the plaintiff was entitled equally with the defendant to the property so bequeathed, they being the only children and next of kin of the testator. The bill then alleges, that the defendant, John C. Richmond, by virtue of the legacies to him, claims all the children of the negro women mentioned in the first and third clauses, bom since the date of the will, whereas the will gives none but those that were in being at the time the will was made, and that all such after born increase are subject to distribution between the plaintiff and the defendant, John C. Richmond. The bill prays an account of the estate, and that the plaintiff may be decreed to have one-half of the property bequeathed to Mary Richmond, and one-half of the negroes born since the date of the will, and of the money, &c.

The defendants by their answer admit the allegations of the bill, as to the will of John Richmond, and that the 1st, 2nd and 3rd clauses thereof are corrrectly set forth, that the names of the children bora to the negro woman named in the first and third clauses after the making are correctly set forth; they admit the death of Mrs. Richmond before that of the testator; deny that the legacy to her lapsed in consequence thereof • but assert that it became an immediate bequest to the defendant, John C. Richmond ; and that by the will, the defendant John C. was entitled, not only to all the negroes mentioned in the first and third clauses of the will, but also to all the increase born to any of the negro women since the date of the will. If in this construction they should be mistaken, the de*584fendant, John C. Richmond, then claims the children born betv/een the making of the will and the death of the testator, as an advancement; the testator having put them into his pos. sessjon <juring his life, and if they are not disposed of by the will, then as to them, the testator John Richmond died intestate. The answers further admit, that the defendant John C., with the consent of the executor, took into his possession all the stock of cattle, horses and sheep, as bequeathed in the first clause, and also all the money on hand, and bonds and notes. He claims the latter under both the first and third clauses, as they were kept by the testator in the desk bequeathed to him, and were there found at the death of the testator. The defendant Vanhook states, that he had handed to the plaintiff' the $150 bequeathed him in the 2nd clause of the will, and also the sum of $11 7-| his portion of the sale of the stock and books mentioned in the 4th clause, which he had refused, and that he has the money and is ready to pay it. An inventory is filed with the answers, which is alleged to contain a true statement of all the personal property of John Richmond, which came to the hands of his executor.

Upon the coming in of the answers, the parties mutually agreed that the Clerk and Master should take an account of the number of slaves born between the making of the will by the testator John Richmond and his death, their names and values; and also of the personal estate, other than the slaves which has come to the hands of the executor, and his disbursements.

The cause being regularly set for hearing, was sent to this court.

Morekead for the plaintiff.

Kerr and Norwood for the defendants.

Nash, J.

The facts in this case are not controverted ; and our only business is to put a construction on the will of John Richmond. It is contended by the plaintiff, in the first place, that by the death of Mrs. Richmond during the life of the *585testator, the legacy to her is either lapsed, whereby it falls to the residuum; or the testator has died intestate as to the property contained in it: neither proposition is true.

It is a general rule, that where a legatee dies before the tator, the legacy lapses. But there are several exceptions to it, all of which are enumerated by Mr. Roper in his Treatise' on Legacies; 1st vol. p. 320 to p. 341. The exceptions are' founded on the manifest intention, as apparent in the will of the testator, that it shall not lapse, but go to some other person. Thus in Eales and England, Precedents in Chancery, 200, the testatrix gave to B. three hundred pounds with a declaration of her will, that B. should give the £300 at his death or sooner, to his daughter C.' B. died before the testatrix, leaving C. surviving him. The court declare, that the legacy to B. did not lapse, but that C. took it on the death of the testatrix. And the bequest was compared to one made to B. for life remained to C., in which case, C.’s right to the legacy' could not be questioned. Here the bequest to Mrs. Richmond,in the first clause, is to her for life .only, with remainder, as' expressed in the third clause, to the defendant John C. Richmond. There is in fact nothing to lapse. The remainder' man is to take whenever the wife, Mrs. Richmond, dies. And' upon the death of the testator, John C. Richmond took all the' property, immediately, by virtue of the third clause' of the will.

The next question raised by the pleadings is, what négro'es' passed to John C. Richmond by the will. It appears that in the first clause, the testator gives Nicey and her children, and!' by the third, Sylvy and her jive children, and Riah and her' child. Both Nicey, and Silvy, and Riah, and her child, named Sally, have had several children since the making of the will, and before the death of the testator. The plaintiff alleges,- that, under the will, John C. Richmond can take none but those named in it, and who were in being when it was executed; and that the children and grandchildren, born be. tween that time and the testator’s death, ate not disposed of by the will, and that they either fall into the residuum, if there *586be oile, or the' testator has dic'd intestate as to them, and they are course to be divided among the next of kin, himself and the defendant John C. On the part of the defendant John C- ^ jg con(en(]e¿|í jf the will does not carry the after bom children, then it is a case of partial intestacy, and the testator having, in his lifetime, put them into his possession, it is, tinder the act of 1806, Rev. St. ch. 37, sec. 17, an advancement.

We are of opinion, that, under the two clauses referred to, John C. Richmond took only the negroes mentioned in the will, and that all the children bom after the date of the will are (indisposed of by it. If there were a residuary clause, the after born slaves would fall into it; Jones and Jones, Con. Rep. 310. But the testator has created no residuum. The 4th'clause of the will is a special bequest of particular articles. As, therefore, there is no residuum,, the testator, as to the after botn slaves, has died intestate. The question raised by the defendant under the act of 1806, has never, until now, been directly before the court. But there can be but little doubt how it would have been decided, if it had been so' presented, as to-call upon the court for an opinion. In the case of Stallings against Stallings, 1 Dev. Eq. Rep. 298, the then Chief justice expressed an opiniou,. that,under the act of 1806, when a peuson puts a slave into the possession of his child, and suffers it to remain, there until his death, it will be an advancement to the child, not alone in the case of an intestacy properly so called, but also where, having made his will, he omits to dispose of that particular slave, which is a partial intestacy. In that case there was ho will, and consequently the question did not arise. It is but the opinion of a most respectable and reflecting judge, and entitled in the highest consideration; and wherever in subsequent cases it has been alluded to, it has always been so treated-. In the case of Hurdle and others against Elliott, 1 Ired. Rep. 176, the court, in delivering its opinion says, “the 'question we are now considering, as a general one, is a very important one, and requires much consideration.” The opinion does not profess to discuss and much less decide it, and yet, in a very few lines, the argument against the dictum, in *587 Stallings v. Stallings, is summed up, with a precision that leaves no doubt as to what would have been the opinion the court if they had then decided it. In commenting on the words, “ he or she dying intestate,” as contained in the act 1806, the court says, “the objections to the doctrine of a partial intestacy being within the act, are not few nor trivial.” It then enumerates some of them, as that the acts speaks of intestacy, without qualification; next the act speaks only of such gifts as may grow into advancement upon the death of the parent, and there is no such thing as advancement or hotchr potch in personalty upon a partial intestacy. Suppose a far ther put a negro into the possession of his son, and after by his will give the son the negro for life. Here, by the will, the testator dies intestate as to the remainder; is the son to tal?e the life estate under the will, and the remainder by way of advancement, in direct opposition to the will 7 Though the court does not decide the question, yet the reasons urged against it have an authority little less binding. They show the point had been well and maturely considered, and upon a review of them, wo consider them decisive. The court says, however, that the question is open to discussion, and they invite it. The counsel on this occasion has not favored us with an argument in support of his position.' Again : in the case of Freeman and Knight, 2 Ired. Eq. 75, the court strongly intimates its dissent to the dictum in Stallings v. Stallings. It is to be remarked, that, in both the cases of Hurdle v. Elliott, and that of Ford and Whidbee, 1 Dev. & Bat. Eq. 21, the court treats the question of bringing legacies into hotchpotch with advancements, ns one too plain to be argued or disputed. And yet hotch-potch, or accounting for what has been received from a parent by a child, lies at the foundation of the doctrine of advancement, equality being the object of the law. In a case then of partial intestacy, the doctrine of advancement cannot exist; property, put into the hands of a child by a testator, and not otherwise disposed of by the will, though remaining in the possession of the child at the time of the parent’s death, is still the property of the estate of which the *588testator has died intestate, and as such must be distributed unthe law among the next of kin.

We are of opinion that John Richmond died intestate as to a]j tjje negroes )3om af¡;er the making of his will and before his death, whether in the possession of the plaintiff or the defendant, John C. Richmond, and that they must be divided equally between the two next of kin. As regards the money, bonds and notes, which at the death of John Richmond were found either in the chest, bequeathed in the first clause, or in the desk bequeathed in the third, we are of opinion that the defendant, John C. Richmond, is entitled to the whole, whether put there by the testator at the time the wilt was made, or put there by him since. The bequest is of the chest and all in it — and so also of the desk.

Per Curiam, Decree accordingly.