#### JOE C. NEWNAN et al v. ELIZA MILLER.

A bequest of slaves to a daughter, with a provision that if she should have issue living at her death, then to such issue, but if she should die without leaving lawfulissue, then over, was Held, upon her dying without leaving children, to be a good'limitation in remainder.

Action of detinue for certain slaves, tried before Osborne, J., at the last Spring Term of Davie Superior Court.

The only question, in this case, arises on the construction of certain bequests in the will of Maxwell Chambers, who died in 1809,, viz: “ I give and bequeath to my son, Edward Chambers, as trustee of my daughter, Ann Chambers, (wife of Henry Chambers, sen’r.) the five following negroes, (naming them,) to have ancl to hold to- my said son, Edward, in trust, and for the benefit of my daughter, Ann Chambers, and her heirs for ever. It is my wish and request that my son, Edward, will pay over to my daughter, Ann, the profits arising from the said negroes, semi-annually, for her support and comfort.” To which is added the following codicil: “ To express my intention, in the annexed will, I add this codicil: My intention- in the devise of five negroes, to wit, Beck, Mill and her three children, Louisa, Rachel and Abb, to my son, Edward Chambers, as trustee of my daughter, Ann Chambers, I wish- to be clearly and precisely understood. My intention is this: I give the said five negroes, to wit, Beck, Mill, Louisa, Rache] and Abb, to Edward Chambers, to hold in trust and for the sole- benefit of my daughter, Ann, to support her during her life, with the profits arising from the labor and hire of the said five negroes and of their increase, and if my daughter, Ann, should have lawful issue, or lawful heirs of her body, living at the time of her death, then I desire, will and order, that my said son, Edward, trustee of my said daughter, Ann, shall deliver and convey, absolutely, at the death of my said daughter, the said five negroes, and all their increase to the said lawful issue or lawful heirs, of the body of my said daughter, Ann, living at the time of her *517'death; and further, it is my intention, will and order, if my said daughter, Ann Chambers, shall die without leaving lawful issue, or heirs of her body, that then, and in that case, my ■said son, Edward Chambers, shall deliver and convey, absolutely, the said five negroes, and all their increase, in equal ■distributive shares to my own heirs, or shall sell the said five negroes and all their increase, and divide the money arising from the sale thereof, in equal-portions, among my said heirs.” It was objected here, that the legal title was in the representative of the trustee, but it was finally agreed by the parties, that all objection as to the parties be withdrawn, and that the cause should stand and be heard and determined upon the merits only. It was agreed further, that the slaves sued for, are the increase of some of those bequeathed in the above re■oited will, and that the plaintiffs are the only heirs-at-law and next of kin of the said Maxwell Chambers. It is further agreed, that after the death of her first husband, Henry Chambers, the said Ann married George Miller, -whom she survived, and that the slaves, in controversy, were allotted to the defendant as one of the next of kin of the said George, who has held them in that character ever since, and that the legatee, Ann, died about June, 1859, without leaving children or issue, 'living at the time of her -death. The question was, whether the limitation in remainder, after the death of Ann Chambers, was valid,-and it was agreed, that if it should be the opinion of the Court that sueh was the case, then judgment should be rendered in favor of the plaintiffs; otherwise the plaintiffs should be nonsuited. His Honor fro forma •declared bis opinion in favor of the defendant, and plaintiffs took a nonsuit -and appealed.

■Clement, for-the plaintiffs.

Jdadger and iBoyden. for the -defendant.

Manly, ¿T.

The single question, presented by the ease agreed, is, whether the limitation over of the-estate given to the daughter, Ann, upon her dying without issue, be -too re*518mote. The language used in the bod}1- of the will, confers upon the daughter an absolute estate in the property; but in the codicil, the testator explains, at large, his intentions as to> this bequest, and' upon the language of this explanation the case turns.

After mahing some contingent limitations to such children as Ann might leave, (into the validity of which it is not necessary for ns to enquire as she left no children) the testator proceeds to declare, “ if my said daughter, Ann Chambers, shall die without leaving lawful issue, or heirs of her body, that then, and in that case, my said son, Edward Chambers, shall deliver and convey, absolutely, the said negroes and increase, to my own heirs.”

"Without insisting upon the word “ leaving” as sufficient of itself to restriet the “ time” of the event, then in the mind of the testator, and fix it at the death of the daughter, (about which there might be some difference among learned authorities on the subject) a purpose thus to fix it, is perfectly clear to our minds, when the language of that part of the codicil,, which immediately precedes it, is considered. Having made provision for the daughter during life, the testator proceeds,. “ and if my daughter, Ann, should have lawful issue, or lawful heirs of her body, living at the time of her death, then, I desire, will, and order; that my said son, Edward, trustee of my said daughter, shall deliver and convey, absolutely, at the' death of my said daughter, the said negroes and increase, to> the said lawful issue, or lawful heirs of the body of my said-daughter, Ann,, living at the time- of her death.” Then,follows the clause which- has been already quoted, viz: “'and further,, it is my intention, will, and order, if my said daughter, Ann Chambers, shall die without leaving lawful issue, or lawful heirs of her body,, that then,” &c. . It will he pereived that a disposition- of the property is here made in two alternatives — -first, if the daughter should have issue, and second, if she should not: If she should have issue, li/oi/ng at herr death, then at her death, the property is to go to such issue living at her death: and if she should, die without lea/omg issue,, the» *519the property to be conveyed to my own heirs. If it be asked with respect to the latter part of the above clause, “ without leaving issue,” when ? can any one who has the reasonable knowledge of, or respect for the structure of our language, be at a loss for the answer ? The period of time, to which the mind of the testator was directed then, was the death of his daughter. He provides for children living at her death, and if she leave none, gives it over. Leave none when ? At her death; is the irresistible response.

In the connection in which we find the word lemmg, the other words “living at her death,” is an obviously grammatical elipsis, and there was no necessity for a repetition of it to make the sense clear. To avoid tautology, the testator seems to have dropped the phrase, “ living at her death,” and use a word, which he evidently regarded as synonomous.- Most men, indeed, would so regard it, and hold that the word lemmg, in its application to a subject like the one before us, meant separation from such things as had a present existence.

We are aware that refinements on the subject, have been occasionally at variance with common sense and grammar, but we do not think that any case can be found, where, in the midst of such a context, “ leaving” has not been interpreted as referring to persons then in being, and read leaving lAv-i/ng at her death. This subject has been so recently discussed in this Court, Newkirk v. Hawes, 5 Jones’ Eq. 265, that we shall not elaborate it further. That case, indeed, is considered as an authority in point.

It is the opinion of the Court that the limitation over to the testator’s own heirs is not too remote, but valid, and the contingency having happened upon which that limitation was to vest, the heirs are entitled. • This opinion makes it proper to reverse the pro forma judgment of nonsuit in the Court below, and to enter a judgment for the plaintiffs according to the agreement.

Per Curiam;, .

Judgment reversed.