#### WILLIAM P. FERRAND, Ad’r. &c. vs. JAMES W. HOWARD, Ex’r.

An executor or administrator has no rightto apply to a eourt of equity for its advice, when he claims the legal title, and another also claims the legal tie. The decision belongs to a court of law.

A testator in 1814 bequeathed certain negro slaves to his daughter A. for her life, and after her death to her son It., and “ should he die without lawful issue,” then over. Held, first, that the remainder over was too remote. Secondly, that the son dying in the lifetime of his mother, and leaving no father, his interest in the estate was to be equally divided between his toother and his brothers and sisters, both of the whole and half blood. Thirdly, that the husband of the mother, who had the life estate, having survived her, her administrator, must account to his administrator or executor for her share, after satisfying her debts, if any existed at the time of her death. Fourthly, that the husband, having kept possession of the slaves after the death ofhis wife, is bound to account with the estate of the son for the hires and profits after that time.

Canse removed from the court of equity of Jones County, at Fall Term, 1844.

The plaintiff as administrator of Kilby Jones Ferrand, deceased, filed this bill, praying the advice of the court, as to the distribution of the personal estate of his intestate. The facts appearing upon the pleadings are as follows :

Kilby Jones died in the year 1814, leaving a will; in which he bequeathed as follows : “ I give to my daughter Ann R. Ferrand two negro girls, "Venus and Comfort, during her natural life, and at her death to descend with their increase to my grandson Kilby Jones Ferrand ; and should he die without lawful issue, the same is to belong to my son Nicholas H. Jones, with all their issue, to him, his heir's and assigns for ever.”

The legatee Kilby J. Ferrand, was the son of the legatee Ann R. Ferrand, by her marriage with-Ferrand. By a former marriage,-Ferrand, the father, had several other children;. who are made parties defendants in this suit. By the marriage with his wife Ann R., he had also several chil*382besides Kilby Jones Ferrand; who are likewise made defendants. After the death of the husband Ferrand, Mrs. Ann K. Ferrand married Joseph Whitby, and by that marrjage she had also several children ; who were all, it is admitted, born in the lifetime of Kilby Jones Ferrand, except Joseph C. Whitby. And as to the period of his birth, the biU states and he insists, that he was born or was in ventre sa mere at the death of Kilby J. Ferrand, while some of his brothers and sisters allege in their answers that he was not then in esse.

Kilby Jones Ferrand died intestate and without ever having had issue, leaving surviving him his mother, then the wife of Joseph Whitby, his brothers and sisters by his father’s first marriage, his full brothers and sisters, and also his sisters by his Mother’s second marriage ; and it is a point of dispute, as before mentioned, whether Joseph C. Whitby, his maternal half-brother, was not then in esse.

At the time of the death of Kilby Jones Ferrand, the negroes, bequeathed by Kilby Jones as aforesaid, with- their increase, were in the possession of Joseph Whitby, the husband of the tenant for life, and so continued until her death. After his wife’s death, Joseph Whitby also retained possession until his own death ; which happened some short time before this bill was filed. They were then delivered by Whitby’s administrator to the present plaintiff, who had administered on the estate of Kilby J. Ferrand, and claimed them under the limitation in his grandfather’s will.

Nicholas H. Jones, to whom the ulterior limitation is made in the will, survived Kilby Jones Ferrand, and then died intestate ; and Edward S. Jones administered on his estate.

The bill is filed by the administrator of the intestate, Kilby Jones Ferrand, against the administrator of Nicholas H. Jones, and against the administrator oí Mrs. Ann K. Whitby, and the administrator of Joseph Whitby, and against the full brothers of the intestate, and the half-brothers on the part of his father, and the half-brothers and sisters on the part of his mother, and the administrators of such of them as have died *383since Kilby J. Ferrand. It states, that the intestate owed no debts and that the plaintiff is desirous of distributing his estate and will be ready to do so, as soon as it can be ascertained what constitutes the estate to be divided, and among whom if is to be divided. But upon those points the bill alleges the plaintiff is put to a difficulty in several particulars. The first is, that the defendant Edward S. Jones claims from the plaintiff the negroes and their increase, under the limitation to his intestate Nicholas H. Jones, on the event of the death of Kilby J. Ferrand without issue : whereas, the plaintiff insists that the limitation to Nicholas H. Jones is too remote, and that those negroes vested absolutely in Kilby J. Ferrand and now form part of his estate. A second doubt is, whether the mother of the plaintiff’s intestate was entitled to a distributive share of these negroes, as one of his next of kin ; and if so, whether that should go to her children or to the administrator of her surviving husband, Whitby. A third doubt is, whether, if Joseph Whitby’s administrator be thus equitably interested in the negroes, he ought not to account for the profits of the slaves from his wife’s death until they were delivered to the plaintiff. And a further doubt is, whether Joseph C. Whitby be entitled to a distributive share of the estate.

The defendants have all answered and do not controvert the facts stated in the bill; except as aforesaid, that some of them do not admit that Joseph C. Whitby was in esse at the death of the intestate, while he insists, upon information, that he was.

J W. Bryan 4* Iredell for the plaintiff.

J. II. Bryan 4” Washington for the defendants.

Ruffin, C. J.

The bill cannot be sustained against the administrator of Nicholas H. Jones. The court entertains bills very liberally for an executor against those who claim under the will, and for whom he is trustee, for the purpose of settling the construction, where there is a fair doubt. But the present plaintiff does not stand in that relation to Nicholas H, Jones’ administrator. On the contrary, they both claim the *384legal estate in the slaves in remainder after the death of Mrs. Ferrand. It is not the case of trustee and ceslui que trust. x but purely of opposing legal titles. The plaintiff is m possess¿on¡ anc¡ sayS qla¡; this defendant sets up a legal title to the negroes, and he prays that the court of equity will determine, which of the two has the better title at law. There is no such jurisdiction. There is no occasion for it; for if the plaintiff has the better title, he may safely make distribution : ifhe has not the title, then, ifhe, and those for whom he is trustee, wilt only have patience for the short space of three years, he will get a title by the statute of limitations, unless the opposite claimant should sue at law, and in that case the question will be litigated in the proper forum. The bill must therefore be dismissed as to Edward S. Jones, and with costs. This would render it unnecessary to say anything on the construction of the will; but as the question is as plain as it can be, and it may be satisfactory to the parties, the court will give an opinion on it.

The first question put to the court is, whether the limitation over in the will of Kilby Jones to Nicholas H, Jones, is good in law? Answer: It is not good in law. It has been decided in numerous cases, both in England and this country, that such a limitation to take effect after the dying of another person “ without issue,” is too remote, and therefore void. The case of Gowler v. Cadby, 4 Eng. C. L. Reports, 163, cited by the defendant’s counsel, was a bequest of two terms for years in houses, to the testator’s daughter and her children, and in default of such issue, and in case of her death, to A. and B. The limitation over was held not too remote, because it was to take effect on his daughter’s dying without children. The words !! such issue” were explained by the antecedent word 11children.” That case is very distinguishable from the one now before us, which has no word or words in the clause, to tie up the words (“ and should he die without lawful issue”) to the time of the death of Kilby J. Ferrand.

Secondly, The vested remainderman, Kilby J. Ferrand, having died intestate without leaving father, wife or issue, in *385the lifetime of his mother, she is to be considered as one of his next of kin, and to take a share of his personal estate, with the intestate’s brothers and sisters of the whole and half blood, and the representatives of those brothers and sisters that were dead at the time of the death of the intestate. Rev. Stat. ch. 64, sec. 1. And as she died before her husband, Whitby, her administrator must account to his executor for her share after satisfying her debts, if any existed at her death.

Thirdly, Is not Whitby’s executor bound to account to the plaintiff for the rents, hires, and profits of the said slaves, as Whitby kept possession of them after his wife’s death, up to his own death? We think that he is; as Whitby kept possession of the slaves, and used them after the death of his wife. The slaves belonged to Kilby Jones Ferrand, immediately on the death of his mother. The account must be taken, making all just and equitable allowances to "Whitby's executor for the raising and maintaining the said slaves up to the time they were delivered over to the complainant.

Fourthly, Is Joseph C. Whitby, the half-brother of the intestate, K. J. Ferrand, entitled to a distributive share of the personal estate of K. J. Ferrand, as he was born (as is alleged) after the death of the intestate ? He states in his answer, that he is an infant, and that whether he was born or in esse before or after the death of the intestate, he is ignorant. If he was born before, or in ventre sa mere, he is entitled to a share ; if not, he is not entitled. And an enquiry must be made by the master, to ascertain whether he was born, or inventre samere at the time of the death of Kilby J. Ferrand.

The plaintiff must pay the costs to Edward S. Jones out of his own pocket. The other questions have so little doubt in them, that we have been inclined to make him pay all the costs; but as the next of kin make no objection to the suit, we think those costs ought to be paid out of the fund.

Per Curiam, Decree accordingly.