BENJAMIN I. DUNLAP against THOMAS INGRAM and others.

A bequest of slaves, with a request that the legatee will permit them to have the result of their own labor, is a bequest for emancipation, and a trust in them results.

An undisposed of surplus of a testator’s estate, must he distributed among all the testator’s next of kin, although words are used in the will, manifesting an intention to exclude some of them from participating in his estate.

It is reasonable for a testator to say, when he makes a gift to one, that it is in bar of a claim the donee has, or may set up against him, and that the legatee must release the claim before he can have the legacy.

The course of the Court of Equity in respect to elections, is, not to compel a party to choose between the opposing interests, until they are in such a state as to enable the party to see on which side his interest lies.

"Where an interest is given to each one of a class of persons severally, upon a condition, that they respectively release a joint claim against the testator, it was Meld that each individual was to perform the condition for himself, and further, that a forfeiture arising from a nonperformance of the condition, fell into the undisposed of surplus.

Cause removed from the Court of Equity of Anson county.

Jeremiah Ingram, of Anson county, died in February, 1856, having made his will in December, 1853, ia which he made the following dispositions:

“Item 1st. My will and desire is, that all my negroes, in this'Stftte, be kept together and worked-onmy plantation, nn*179til the lease that Presley and Elizabeth Stainback have on my plantation shall expire, except such of them as I shall otherwise dispose of.

“ Item 2nd. I gfve to my brother, Ebenezer, my Leake tract of land during his natural life ; and at his death to be sold, and the proceeds divided among my heirs, as herein-after mentioned.

“ Item 3rd. I bequeath to the American Bible Society, the sum of six hundred dollars, to be paid within two years after the probate of my will.

“ Item 4th. The Missionary Society of the South Carolina Conference of the Methodist Episcopal Church, South, six hundred dollar.

“ Item 5th. I give to Riston H. Bennett, the sum of five hundred dollars, as his full share of my estate.

“Item 6th. I give to my nephew, Benjamin Ingram, son of Lemuel Ingram, deceased, the sum of five hundred dollars, as his full share of my estate.

“Item Yth. I give to my nephew, Presley N. Stainback, the sum of one thousand dollars.

“ Item 8th. I give to my sister, Elizabeth Stainback, the sum of one thousand dollars, in addition to an equal part of my estate.

“ Item 9th. I desire that the tract of land, on which I live, be valued at cash valuation, and that one of my legatees take it at that valuation.

“ Item 10th. My wish is, that all my land, in this State and in Mississippi, not otherwise disposed of, be sold, and the proceeds divided equally among the heirs of 'Willliam P. Inggram, all entitled to one share, and the heirs of Lemuel Ing-: ram, deceased, (except Benjamin Ingram and Riston li. Bennett) and entitled to one share jointly, and my brother Thomas, my sisters, Elizabeth Stainback and Hannah P. Dunlap, to receive a share each.

“Item 11th. My desire is, that all my negroes, in the State of Mississippi, (except Reuben) together with all the *180other property I may possess in that State, be disposed of, and the proceeds disposed of, as in item ten.

“ Item 12th. I give to my friend, Horatio Tyson, my negro Reuben, now in Mississippi.

“Item 13th. My will and desire is, that all my negroes in this State, except such as may hereinafter be disposed of, which I may die in possession of, be equally divided or sold, and the proceeds divided among the heirs of William P. Ingram, deceased, all entitled to one share, the heirs of Lemuel Ingram, deceased, (except Benjamin Ingram and Riston IL Bennett) entitled to one share, my brother, Thomas Ingram, my sisters, Elizabeth Stainbaclc and Hannah P. Dunlap, each entitled to one share. My further desire is, that if any of my negroes should have a choice of homes, they be valued at alow price, to such one of my legatees as they may wish to live with ; and that all the claims I hold against any of my legatees, of whatever date may be taken into consideration in the final division.

“ Item 14th. I give and bequeath to my nephew, JohnB. Ingram, my negroes, Edmund, Tempe, George, Dick and. Judy, in trust, with a desire that he permit them to enjoy the proceeds of their labor in all respects, in as full and ample a manner as the laws of the State will permit, and that they may have the use of a sufficient portion of my land in the Patterson tract, for making their support. I also give and bequeath to the said John B. Ingram my negroes, Niger and her children, John, Alexander, Washington and Franklin, in trust, with a desire that he will permit them to enjoy the benefit of their owm labor in as full and ample a manner as the laws of the State will permit, and that they be permitted to have a home on my plantation.”

The testator appointed three executors, of whom the plaintiff alone proved the will. Lie afterwards executed the following codicil, dated April 8th, 1854 :

“ Whereas, in my last will, bearing date, &c., I have given and beqeathed to Riston H. Bennett, $500, as his full share of my estate, and to Benjamin Ingram, son of Lemuel, deceased, *181the sum of $500, as his full share of my estate ; and whereas, I have .given and bequeathed in my said will, in the 13th clause thereof, to the heirs of Lemuel Ingram, decased, (except Benjamin Ingram and Riston H. Bennett, who married Anne, a daughter of said Lemuel) one share jointly between them of all the residue of my estate, not otherwise disposed of in my said will, the said share being the one 5th part of the said residue ; now, being desirous of modifying my will, in respect to the aforesaid legacies, I do hereby alter the said legacies, and declare that it is my will and intention, that if the said Riston II. Bennett and his wife Anne, and the said Benjamin Ingram, or Samuel P. Ingram, Presley Ingram, Martin P. Myers, and his wife "Winny, Roland Crump, and his wife Sarah, and John B. Ingram, or either of them, who are the rest of the heirs of Lem. Ingram, deceased, shall prefer or set up any claim or debt or demand against me in my life-time, or executors, or administrators, after my death, for any matter or tiling arising from, or in any -way growing out of my execution of the will of the said Lemuel, deceased, as his executor, shall forfeit all right to his, her, or their legacies aforesaid, in my will mentioned, and all interest in my estate; and I do further declare it to be my will and intention, that my executors shall not pay to to the said Riston H. Bennett, or to Benjamin Ingrain, this legacy of $500, nor to the other children of Lemuel Ingram, their respective portions of the aforesaid share of the residue of my estate, bequeathed to them, until each one of them, applying for his legacy, shall execute to them a full release and acquittance of all demands, actions, and causes of action, which he may have against my representatives for, or on ac-r count of, any matter or thing arising from, or growing out of the execution of the will of the said Lemuel, by me, as his executor. And I do hereby ratify and confirm my said will, in every thing, except, in so far, as the same is hereby revoked or altered.”

The bill is filed, by the executor, against the American Bible Society, and the Missionary Society of the South Carolina Conference of the Methodist Episcopal Church, South, and *182against the specific legatees, and the brother and two sisters of the testator and their husbands, and against John B. Ingram, Riston II. Bennett and wife, and Benjamin Ingram, and the other children and heirs-at-law of the two deceased brothers, William P. Ingram and Lemuel Ingram, and prays to have the duties of the executor, and the rights of the several legatees, and of the next of kin, declared upon the following-points :

1st. Whether the bequests to the American Bible Society, and the Methodist Missionary Society, are valid, and ought to be paid by the plaintiff.

2nd. Whether the disposition of the slaves to John B. Ingram, in the 11-th item, for the purposes therein mentioned, is valid, and, if not, whether they, being- a part of the testator’s negroes in this State, pass with the others under the 13th item of the will, or go to the testator’s next of kin, including, or excluding, Benjamin Ingram and Riston IT. Bennett and wife; or whether they belong absolutely to John B. Ingram in his own right.

3rd. Whether the terms and conditions imposed by the codicil on the legatees, Benjamin Ingram, Riston II. Bennett, and the other children and heirs of Lemuel Ingram, in respect to the forfeiture of their legacies, if they should prefer a claim arising out of the testator’s administration of Lemuel Ingram’s estate, or refuse to execute releases, are valid, and ought to be enforced or not; and if yea, whether the preferring a claim or a refusal to release by one of them, would work a forfeiture by all of them ; or would only he, she, or they, thus claiming or refusing to release, incur the forfeiture ; and within what time must those persons accept their legacies and execute the releases.

4th. Whether the conditions imposed by the codicil, attach to the legacies to the heirs of Lemuel Ingram, given in the 10th and 11th items, as well as to those in the 13th item.

■ 5th. And should any forfeiture, in the whole or in part, be .incurred by any of those persons, what disposition is to be -made of the.legacy or legacies, thus forfeited.

*1836th. The bill states further, that, exclusive of the specific legacies and the negroes bequeathed to John B. Ingram, there is not a sufficient fund to pay the debts and pecuniary legacies, and prays directions as to the fund for their payment.

Ashe, for the plaintiff.

Winston, Sr., Osborne and Strrange, for the defendants.

Ruffin, J.

No observations are required on the first point, as the counsel for all the defendants agree, that the charitable bequests for religious purposes shall be paid.

There is no doubt on the second point, that the legatee, John B. Ingram, cannot hold the negroes, beneficially, as he takes them on an express trust. And there is as little doubt that the trust expressed is unlawful, as it is very plainly for the emancipation of negroes who are to reside here. The words in this will are much the same as those in the will in Sorrey v. Bright, 1 Dev. & Bat. Eq. 113 — in which, and in numerous other cases, it has been held, that the trust was void, and results. The fund would fall within a general residuary clause, according to the case cited, if the will contained such a clause. The codicil speaks of the residue of the estate having been given by the 13th clause of the will. But when that clause is looked at, it is seen that it does not give any thing as a residue of the estate. The only sense in which the testator could have called what is there given away, a residue, is, that he thought by the previous gifts in the will he had exhausted his estate, saving only as to those parts of it which he wfas disposing of by that clause. Having nothing else to dispose of but the negroes in North Carolina, he considered that in giving them he was giving the residue of what he was worth. But he did not give them as the residue of his estate, nor even as a general residue of his negroes, since by the exception in that item of such negroes as he might thereinafter dispose of otherwise, and by the subsequent disposition of some of those negroes, he turns the gift into one of'a special residue, if it be a residue at all. Indeed, upon the words “All my negroes in *184 this State of which I may die in possession,” it would rather seem to be a specific legacy than residuary. Nisbèt v. Murray 5 Ves. 150; Everitt v. Lane 2 Ired. Eq. 548. In either, as put, the negroes excepted, and afterwards disposed of for emancipation can never fall back into it, whether they are effectually disposed of or not in the subsequent part of the will. Those negroes only are given in the 13th clause which are not taken out of it; and those excepted turn out not to be legally disposed of, and, consequently, result to the next of kin.

The question then arises, on which the parties ask the declaration of the Court, which of the next of kin succeed to that surplus, and in what proportions? Naturally, they succeed to such an interest as next of kin do when there is a total intestacy. They take, because as to this fund, the deceased is intestate, and there is no other rule for the distribution of it but that furnished by the statute of distributions. In England, it formerly belonged to the executor, unless upon the will it was seen he was an executor in trust, as he was called ; and every executor is such an executor here since the act of 1789. It was contended, however, at the bar, that the terms in which the legacies are given to Benjamin Ingram and Bennett repel their claim, and that of the wife of the latter, to any part of this surplus; and the point was argued with learning and ability by the counsel for the other next of kin. Vet, it has failed to satisfy the Court of the correctness of the position, and our opinion is to the contrary. If the question concerned the Bennetts alone, it might be of some interest to enquire, whether or not the wife is within the terms of exclusion used in this will. But, as the opinion of the Court is, upon the general question, in favor of both Benjamin Ingram and the husband, Bennett, it is not worth while to consider the particular point respecting the wife. It was admitted in the argument, that the-exclusion of all the next of kin, would not defeat them of the surplus — though it was said the exclusion of one among two or more would be effectual as to that one. Now, the ground on which the,next of kin take, in the *185first case, is, that the testator has left the surplus undisposed of, and they must take, because there is no one else who can. Then, it is plain, they take by the law, and not by the will. The same reason applies as directly and conclusively where there is an exclusion of one of several next of kin, and the contrary doctrine is absolutely inconsistent with the nature of the fund, which is a residue undisposed of — not touched by the will, and left to the law alone. If, then, the exclusion of one be effectual, it must be because, by reason of the exclusion, there is a gift by implication to the other next of kin, and they take as general residuary legatees. The interpolation of such a general residuary clause upon implication is inadmissible upon any proper principle of construction. Such an implication could only be justified upon the clearest intention, and in this case, it is plain, the testator thought, he had given away all his estate, and the partial intestacy arises, as it generally does, from a defect in one of the dispositions from which a surplus arises, which was not in his contemplation, and about which he had, therefore, no particular intentions. Among the numerous cases adduced in the argument, there is but one directly in point — that of Vachell v. Breton, 1 Bro. Parl. Cases, 167. There, the testator gave ton shillings, each, to two children, whom he called the children of his wife, and who, it appears, were born (luring his separation from her, and he added to the gift the words “and no more,” and it was decreed that a surplus should be distributed amongst the testators next of kin, excluding the children. It may be observed on that case, in the first place, that the decree in the court of chancery was the other way; Vachell v. Jeffries, Pr. in. Ch. 169, and that no reasons are given for the judgment, and it does not appear that any one of the Judges gave an opinion. It seems to have been decided simply by a vote of the Lords. What influenced that body one cannot undertake to say. It may have been that the children were not deemed akin to the testator; for, although born in wedlock, they might have been bastards, if the separation was of a kind to exclude access ; or it may have been an act of arbitrary ex-*186elusion on account of an obvious suspicion of the imposition of spurious issue on the testator, without considering the question of bastardy in a legal point of view; or ma3r have been on the construction of the will. If the decision went on either of the two first grounds, it has no application here. If on the last, it seems to us not to be law, for the reasons alread3r given. The authority of the case is to be further doubted, because it has not been followed, as far as our researches extend, nor mentioned with approbation, by any Judge or respectable commentator. On the contrary, an undisposed of residue has alwa3rs been divided among all the next of kin, as in a case of total intestac3r, with the exception, only, as to hotchpot, and that because the statute which provides for it has only a total intestacy within its purview. Besides, the recent decision in Johnson v. Johnson, 4 Beav. 318, lays down the law in direct opposition to the case in the House of Lords. In that case, the testator cut off his widow and one of his daughters from any part of his property, and directed that they should not recieve any benefit therefrom; but he made no disposition of it. It -was held, nevertheless, that the negative words could not exclude one of the next kin, and therefore that the widow and daughter were entitled to their share of the residue. That such was well understood to be the state of the law in England, is dedncible from the recital in jthe modern statutes in that country, converting executors into trustees, (in respect of an3r residue not expressly disposed of,) for the persons who would be entitled to the estate under the statute of distributions, if the testator had died intestate. Our act of 1789, though not so much in detail, is the same in substance, in providing that the executor shall retain only Ins charges and disbursements, and that at the end of two years, all the estates remaining, shall be delivered and paid over to such persons to whom the same may be due by law or the will of the deceased. That due by the will is whatever the will disposes of, and that due by law is, necessarily, that not disposed of by the will, and is the surplus now under consideration. By what law is it due ? There is no other that can be meant but *187tlie statute of distributions. As, therefore, the next of kin. take in this case bylaw, negative words cannot exclude them, and they must all take. Although in Jones v. Masters, 3 Mur. Rep. 110, it was not the precise point before the Court in the action at law, yet the remarks of Judge Henderson, in alluding to it, incidentally, denote very explicitly his opinion on it. He said that although one could not claim as legatee under a will in opposition to the intention of the testator, yet there are many cases, where the next of kin take in express opposition to the words of the will; because they take under the law, and not under the will,' and their right can be defeated only by the substitution of some person to take in their place, and not by a declaration that they shall not take.

The Court concludes, therefore, that Benjamin Ingram and Bennett and wife, take their shares, of this fund, with the other children of Lemuel Ingram, as representing their father.

There is no reason for not putting the children of Lemuel Ingram to the election imposed on them in the codicil. It is reasonable for a testator to say, when he makes a gift to one, that the gift is in bar of a claim the donee has, or may set up, against him, and, that the legatee must release the claim, before he can recover the legacy. The election here goes to all the provisions in the will, in favor of Benjamin Ingram and Bennett, and the heirs of Lemuel Ingram ; for, although, the codicil recites only the provision made in the 13th clause, yet the forfeiture, upon preferring a claim arising out of the testator’s administration of Lemuel’s estate, is not confined to the legacies given in that clause, but it is added, “and all interest in my estate.’ The election of each one is to be made for him or herself, and does not affect any other. • The codicil is not, in every part, distinct on the point, but that is the effect as a whole ; for, in requiring releases, it directs that “ each one of them applying for his legacy, must release all demands he may have,” before the executor shall pay their “ respective portions,” and the forfeiture is of “ all right to his, her or their legacies aforesaidfrom which, the inference is, that the act of each is to operate on his several interest. ,

*188As to the time within which those persons are to execute releases, the testator, having limited none, it is to be determined by the general rule of Equity. It is the course of the Court not to put one to his election, until the estate is in such a condition as to enable the party to see on which side his interest lies ; for Equity does not put a surprise on persons in this situation, but leaves them to decide after an opportunity of comparing the value of their original rights with that derived under the will. Therefore, the executor has no right to call for an election until the accounts of the testator’s estate shall be so far made up as to satisfy the legatees on those points, and, indeed, if necessary for that purpose, the Court would, at the instance of either party, direct such an account in this cause. Newman v. Newman, 1 Bro. C. C. 186.

If any of the parties should elect not to take under the will, the legacies to those parties would also fall into the surplus, because the will does not, in case of a forfeiture, give the legacies over, nor in any way dispose of them, since, the gifts are not of the whole share to such of the legatees as may release, but they severally take a share of the fifth part and no more.

It arises from the nature of an undisposed of surplus in the hands of an executor, that it should be the primary fund in the payment of debts and pecuniary legacies, as the testator must always be supposed to intend that his legatees shall have their legacies without abatement, if there is any other fund for the satisfaction of creditors and general legacies. A surplus is such a fund, just as lands descended stand before those devised in respect to. charges on both.

Pee Curiam,. Decree accordingly.