#### LOVELESS DOGGETT et al v. DAVID MOSELEY.

Where a father gave slaves to his daughter by will, adding this phrase,. “ which I intend for the said N. or her issue,” she having, illegitimate issue-at the date of the will, but no-legitimate issue, and died without having bad-legitimate issue, it was Held that such illegitimate offspring could not come in under the term issue, there being nothing else to show that they were-thereby meant; but that the mother took an absolute estate, which went to her husband, surviving her, jure maritú

Time elapsing while a party was a resident in another State,, while tire act of 1852 was in force, was Held not to operate a bar under the statute of limitations,- though that act was repealed before the statute of limitations was pleaded.

Action of detinue for slaves, tried before Heath, J., at the-last Eall Term of Eutherford Superior Court..

Tbe plaintiffs and defendant botli claim under the- will of Busbrod Doggett, which was made in tbe year 1829-. The clauses of said will,, material to the- questions considered by tbe Court, are as follows :

1st. “ In the first place, it is mj will that my beloved wife, Susannah Doggett, shall be well provided for. I therefore will and bequeath unto her first, the-following-slaves, (mentioning four by name; also a tract of land and other personal’ property,) and at her death, the negroes and their increase;, together with tbe land and other effects-devised to her, to be-equally divided between my children; then living, or their issue; at the same time reserving the- first child, the said Jiuney may have for Busbrod Doggett,, the son of my son Bichard, for him to have and receive whoa he arrives at mature age.”

“ Item 2nd. I will and bequeath to my daughter, Sarah Wilmoth, one negro girl, named Selah, together with a mare and cattle, that she has heretofore received, all of which I estimate at two hundred! and1 eighty dollars, to her sole use or her issue.

“ Item 3rd. I will to my daughter, Nancy Mosely, the tract of land whereon she now lives, supposed to be 56 acres; also. *588one negro girl, named Hamette, ahorse and cattle that she has received ; I estimate the whole at $430, which I intend for the said Nancy or her issue.

“ Item 4th. It is also my will, to give to my daughter Elizabeth, one negro girl named Rachel, with my lots and improvements in Rutherfordton, together with thirty acres of land contiguous to the town, on the east side. I estimate the whole at $580, which I intend for her own proper use, or her issue.

“Item 5th. I give and bequeath to my daughter Martha Butler, one negro girl named Jude, one hundred acres of land where she now resides, to be laid off in a square on or joining the lower south line — twenty dollars worth of cattle. I estimate the whole at. $520 ; which I give for her use and her issue, or the use thereof of her issue, which is intended to be distinctly understood as relates to wha-t I have willed to each of my daughters.”

The action is brought for the recovery of the female slave Iiarrietfe and her six children.

The plaintiffs are the illegitimate children of Nancy Moseley, born in 1820 and 1822, while she was living at her father’s house, and were well known to him at the time of the making of the will, in 1829. The legatee, Nancy, was married to the defendant, Moseley, in the year 1823, and died in the year 1854. She always lived near her father, and was a favorite child. She never had any children after her marriage with the defendant, and 1-eft no other issue than these illegitimate children (the plaintiffs.) The defendant has had possession of the slaves eversi-nce the death of his late wife, and before that had possession, with her, from the year 1829 up to the period of her death.

The plaintiffs removed to Tennessee in 1833, and have resided there ever since.

The plaintiffs offered to prove that Bnshrod Doggett was himself a bastard, which was ruled out by the court, and plaintiffs counsel excepted.

It was contended, by the plaintiffs, that under the 3d. clause *589of tbe will, the slaves in question are limited to them as the issue of Nancy'Mosely.

A verdict was taken for the plaintiffs, subjee-tto the opinion of the court on the plaintiffs’ right to recover at all, with leave to set aside the verdict and enter a nonsuit, provided,, he should be of opinion against the plaintiffs right.

His Honor, afterwards, on consideration of the point of l.aw reserved, ordered the verdict to be set aside and a nonsuit entered.

Ed/ney and J. J. Woodfin, for the plain-tiffs.

SI'wpp, Amry and Logan, for the defendant.

Rattle, J.

The cjaim of the plaintiffs to the slaves in controversy, is founded on the following clause in the'Avill of Eushrocl Doggett, “ I will to my daughter, Nancy Moseley,, the tract of land whereon she now lives, supposed to be fifty-acres, also one negro girl named Harriette, and horse and cattle she has received. I estimate the whole at 430 dollars, which I intend for the said Nancy or her'issue.” The plaintiffs are the natural children of the testator’s daughter Nancy, born before- her intermarriage with the defendant, Moseley, and the slaves sued for, are the negro girl, Harriette, and her children, and the-question is, whether the above recited clause of the testator’s will admits of a construction,, which,, on the events that have happened, has vested; a title in the plaintiffs, so as to enable them to recover in this action.

In the arguments of the counsel,, several views- have been presented,, as to the meaning of the testator, in giving the girl, Harriette-, to his daughter, Nancy, “ or her issue.”' The counsel for the defendant contends that his intention was to make the bequest to his- daughter absolute,, provided she survived him, or to her issue-, in- the- event of her dying in- his lifetime-, and the counsel insists, that as- she survived her father, the legacy became absolute, and vested at -once in the defendant, as her husband, jwre ma/riti. This construction seems plausible, and is certainly aided by lights derived from other parts *590of the will. In the first clause, the testator, after giving certain land, negroes and other property to his wife for life, directs, that at her death it shall be divided “ between his children then living, or their issue.” Here it is manifest, that the children of'the testator, living’ at the death of their mother, were intended to take absolute estates in the shares devised and bequeathed to them, but if either of them should be dead, leaving issue, such issue was to take what his, her and their parent would have done had he, she, or they been then living. The word “ or ” was certainly used in a disjunctive sense, and cannot be supposed to have been used in the sense of “ and.” In the second and fourth clauses of the will, the bequests to each of the testator’s daughters, Sarah and Elizabeth, is to her “ or to her issue ” as in the case of the bequest to the plaintiffs’ mother, Nancy. From the use of the same terms in the second, third and fourth clauses, which he had employed in the first clause of his will, the in Fcrence is very strong, that the testator intended the same thing in each, which was, that the issue of either, or all, of his daughters should take, only in the alternative of her or their deaths.

The counsel for the plaintiffs insists strenuously this construction is inadmissible, and he contends that the disjunctive conjunction “ or,” must be taken in the conjunctive sense of ■“ and,” and in support of this argument, he relies strongly upon the phraseology of the bequest to the testator’s daughter Martha Butler, in the fifth clause, which is, “ for her use and Per issue or the use thereof of her issue, which is intended to be distinctly understood as relates to what I have willed to each of my daughters.” Here, it will be noticed that the word and” is used; but it is followed immediately by the expression “ or the use thereof of her issue,” which leaves it doubt■ful whether the testator meant to vary the meaning in that particular of the bequests to his daughters “ or their issue” in ■■the¡previous clauses of his will. But suppose that he did, and that “ or” is to be construed “ and” throughout, the enquiry 'is at1 once suggested, whether it will help the plaintiff’s case. ■A bequest to a woman and her issue., undoubtedly gives her *591an absolute estate when she has no children or issue during the life of the testator ; but if she has children or issue -when the will is made and at the death of the testator, she and her children or issue, may take absolute estates as tenants in common, unless there is something in the will indicative of an intention that she shall take as tenant, for life, with remainder to her children or issue. See Moore v. Leach, S Jones, 88, and the cases there cited. Here, there is no expression in the will, which can be construed to give the mother a life-estate only, and the consequence is, that if the the plaintiffs can claim at all under the description of issue, they must take as tenants in common with the defendant, who, by his intermarriage with their mother, became the owner of her share of the slaves. If such be their title, they cannot maintain the present action against their co-tenant, but their remedy will be a proceeding against him for a partition of the slaves thus held in common.

Wé have thus far considered the case as if the illegitimacy of the plaintiffs formed no objection to' their claim; but we are entirely satisfied, from an examination of the authorities, that the term “ issue,” as used in the clause of the will, now-before us, means legitimate issue only, and does not embrace the plaintiffs. Most, if hot all the English cases on this subject, are collected and analysed with his usual critical acumen by Mr. Jarman, in the second volume of his valuable work on "Wills. Among these cases is included that of Wilkinson v. Adams, 1 Ves. and Beame’s Eep. 460, in which the judgment was pronounced by the Lord Chancellor Eldon, assisted by Thompson, Baron, and LeBlanc and Gibbs, Judges., The result of Mr. Jarman’s examination is thus expressed : “ They (that is illegitimate children) are not objects of a gift to child/ren or issue of any other degree, unless a distinct intention to that effect be manifested upon the face of the will; and if by possibility legitímate children could have taken as a class, under such gift, illegitimate children ccmnot, though children, legitimate and illegitimate, may take concurrently under a *592 designatio personarum applicable to both.” See'2 Jarman on Wills, 155.

In the will, now under consideration:, there is- no- designation of persons applicable to- botli kinds of children,, and there is nothing upon the face of it, to indicate any intention, much' less a distinct intention, that illegitimate issue-was meant, and with- regard to the testator’s daughter, Nancy,, there was not only a possibility, but a strong probability, that at the time when the will was made, she might have legitimate issue to take instead of her bastard children. The word issue is used by the testator, in connection with his other daughters,, is precisely the same manner as it is with respect to his daughter, Nancy, and since, as to them, it undoubtedly means legitimate issue, it must have the same construction as to her..

The testimony’ offered by the plaintiff, to show that the testator was himself a bastard, could not have aided the Court in ascertaining his meaning, and was, therefore, properly rejected as immaterial.

The statute of limitations was- relied uponliy the defendant. It would, of itself, have afforded a complete defense- against the action, (if the claim of the plaintiffs bad been otherwise well founded) but for an act of Assembly, which was passed in 1852, anpl which was in force until the-first day of January, 1856-, when the Revised Code, in which it was omitted, went into operation. By that act it was provided,. “ that on the trial of any suits before any of the Courts of this State, the time, during which the parties to a suit shall not have been a resident, shall not be given in evidence in support of the plea of the statute of limitations.” See Act 1852, ch. 51, sec. 2, referred to in Phillips v. Cameron, 3 Jones, 390.. The defendant’s wife died in 1851, and supposing he had no title at that time-, his adverse possession of the slaves for more than three years before the suit was brought, would have given him one, but for the interposition of the act to which we have referred.. However, the defendant has no need to resort to any other defense than that which is furnished by the will of his wife’s *593father. Under that, she took an -absolute interest in the slaves, sued for, which became his j%t/re mariti.

Per Curiam,

Judgment affirmed.