JACKSON JOHNSON and D. W. SILER, Executors, &c. v. A. J. OSBORNE and others.

“Where a testator directed that two of the shares, into which he divided his estate, “ shall be in negro property, which shall be designated by the executors to this willHold, that such legacies were demonstrative, and, therefore, that upon the emancipation of slaves the legatees thereof lost them, and could not look to other parts of the estate for indemnity.

Orisinal Bill, praying for instructions in regard to a will, filed at Spring Term, 1866, of the Court of Equity for Haywood county, when the cause was set for hearing upon bill and answer, and transferred to this court.

The complainants were the executors of Ephraim Osborne, deceased, and the defendants his legatees. The will consists of numerous items, and it appeared from it that, previous to its being written, the testator had divided his lands into several “ divisions,” which were duly numbered on a plat, filed with his will.

No further statement is deemed necessary, in order to understand the opinion.

*60No counsel in.this-court.'for the complainants.,

Bailey,„,for,'the. -defendants.

Pearson-, C.' JU

Ih.--the-4th..- item-of His-will/ the t.éstktor provides for raising- three shares-, to¡be allotted to.the chib-dren of his three-deceased daughters.-; such children t.o represent their mother-s. respectivelyeach set to take one share, and-the share of each set to, be assigned by drawing lots. »

The three shares- were to-be made u-p-as follows: “ Division, No. 3,” in the plat to which reference is made, was tn. make one of tlie shares ; “ the other two shall be in, negro, property, which shall be designated by'the executors-totliia. will.”

At'the death of the testator he-owned'many negroes, out ef which the two shares could have been made. But by the act of emancipation it has become impossible-to make the two shares in the manner directed by the testator, and the question is,,Does-the loss of these- tw.o,shares fall upon, the grand'-children named in this.item-, or-“ upon the estate-at large?.” by which we understand to-be meant, Shall the value of these two shares be made up out of other-funds in. the hands of the executors?

This legacy is demonstrative,.i. e., the species.of propectyof which it is to consist is pointed out by the testator, to w.it, a part of his negroes to he designated by the executors.' The legacy then is specific, and as the subject has been destroyed h.y the political death of the slaves, the effect is the same as if they had all died a natural death, and in that case it is settled that- the legatees must lose the legacy, and cannot look to the other parts of the estate for indemnity.

No further instructions are asked for, and as the legatees get only one of the shares, to wit, “Division No. 3,” and that one share can itself be divided in the manner directed *61by the testator, we presume thátvfhey will havemo difficulty in dividing it in that, or in sonae-other mode.

This opinion will be certified to the court below ; and the costs will be paid by the executors out of the assets of the estate.

.Per Curiam.

Decree accordingly.