#### RODERICK CARROLL vs. JOHN HANCOCK et al.

A testator, after giving a woman slave to one absolutely, has a right to dispose of her children then unborn.

“Where a life-estate is given with a limitation over to a class, the matter is kept open until the termination of the particular estate, so as to include as many of the objects of tire testator’s bounty as possible;. It is otherwise where there is no particular estate..

This was a petition for the partition of slaves, heard before his Honor, Judge Person, at the Spring Term, 1856, of Pitt Superior Court.

William Haddock died in 1821,. having made his will, in which he bequeathed as follows: “ Item, I lend to my beloved wife, Martha Haddock, my dwelling-house and plantation whereon I now live, and three feather-beds and furniture; also the rest of my household furniture; also one negro woman named Ghane, and one boy named Moses, and all my stock of cattle and hogs during her natural life; and also my will and desire is, that after the death of my wife, for Zilpha Harrington to have the negro woman Ghane, that I lent to my wife, to her and heirs for ever; also, my desire is, that Chane’s increase, if she has any, to be given to Zilpha Harrington’s daughters after her decease.” ■

Chañe had increase, six children, after the death of the testator, and before that of Zilpha Harrington. Martha Haddock, the widow of William Haddock, died in 1830.

Zilpha Harrington died in 1855; her husband, Joab Harrington, had possession of Chañe and her children under and *472by force of this bequest, with the assent of the executor of William Haddock, at the time of her death.

The children of Zilpha Harrington, living at her death, were six daughters: Elizabeth, who intermarried with the plaintiff, Boderick Carroll, Martha, who intermarried with John Hancock, Penny, intermarried with Barnes Summerlin, Susan, intermarried with Allen Jackson, Mimesy, intermarried with Amariah B. Cox, and Nancy Harrington, a single woman.

Shortly after the death of her mother, Elizabeth Carroll, the wife of the plaintiff, died intestate, and he took out letters of administration on her estate. This petition was filed by him as administrator, claiming to be a tenant in common with the five other daughters of the testator.

The defendants answer, and deny that they are tenants in common with the plaintiff as the representative of his wife. They insist that, by the will of William Haddock, the said slaves were the absolute property of Joab Harrington, the husband of Zilpha Harrington, and they allege that the same have been conveyed, by deed properly executed, and for a valid consideration, to the defendants.

Upon consideration of the above case, his Honor declared it to be his opinion, that the plaintiff is a tenant in common of the slaves mentioned in the pleadings, with the defendants, and adjudged that he is entitled to partition as prayed.

Erom which judgment, defendants appealed.

JBrya/n, for plaintiff.

lUodmiam,, for defendants.

Pearson, J.

A negro woman is bequeathed to A for life, and then to B, and her heirs for forever. The “ increase” of the woman, “ if she has any,” is bequeathed to the daughters of B, after her death. The woman has six children after the death of the testator *, A dies, and B dies, leaving her surviving six daughters; one of them dies, her administrator claims *473to be tenant in common with, the other five, and prays for partition.

There can be no doubt that the testator, after giying the woman absolutely to B, had a right to dispose of her children then unborn. Pearson v. Taylor, 4 Dev. and Bat. 60; Nelson v. Nelson, 6 Ire. Eq. 417.

The suggestion, that “increase” has a broader meaning than children, and includes descendants to any indefinite future period, and so the limitation over is void to prevent a perpetuity, is not well founded. What negroes the daughters of B are to take, will be determined at her death, or at all events, at the death of the negro woman; so the limitation over must take effect within a life, or lives in being.

There is also no doubt that, at the death of B, the legacy vested in her daughters then living; consequently, upon the death of one of them, her estate was transmitted to her personal representative. It is well settled, that where a life-estate is given with a limitation over to a class, the matter is kept open, until the termination of the particular estate, so as to include as many of the objects of the testator’s bounty as possible. This can be done; because the tenant for life fills the ownership, and there is no necessity for ascertaining who constitute the class, until they are called on to take the ownership. It is otherwise when there is no particular estate, for then the call is made at the death of the testator, and those take who then answer the description.

The daughters being then tenants in common, the bill of sale, taken by the surviving five from the husband of B, did not have the effect of making the possession adverse.

Per Curiam.

Judgment affirmed.