IN EQUITY.

#### Turner, adm’r &c. v. William Whitted & Levi Whitted.

From Orange.

Testator devised a part of his estate to his wife and to his daughter Anne, and in case his wife should have another child, or be with child at his death, a portion of the same to such child, “ and if he should have no child at the time of his decease, or his wife should not be with child, or in case he should, at his death, have a child or children, and such child or children die before arriving at the age of twenty-one years, or without heirs lawfully begotten, then” over. Held, that the disjunctive or, shall be construed and, to effect the intent of the testator, and that such limitation is not too remote.

The testator, further, in the same clause of his will, adds, in disposing1 of the property, “ given as aforesaid to his child or children ; ij no such child or children, to be equally divided between his brothers W. and I,. &c.”

Construed, that this is a limitation upon the contingency of the birth of a posthumous child, and the existence or non-existence of his daughter Anne, at the time of his death ; and does not await all the limitations enumerated in the first part of the clause.

A direction in testator’s will that * ‘ his executors shall use all lawful means to have his slaves set free, either by the General Assembly or other competent authority,” held to be void, and they consequently result to the next of kin.

*614£t is a general rule with respect to the profits of real estate, that whir.* the fee is vested in a devisee, subject to be divested upon a contir. geucy, the profits which accrue from the death of testator until the divesting of the estate, belong to administrator of devisee

The bill staled, that one John Whitled died seised and possessed of a large real and personal estate, and by bis will, bearing dale .t3th of March, 1804, devised and bequeathed to Susanna, his then wife, a part of his real estate, three negroes, together with one half of the money on hand, and all the rest of his personal property, bis negroes excepted, reserving also sundry small pecu - niary legacies, afterwards mentioned in the will. That, by the will he also gave to his daughter Anne, all the residue of his lands and houses and six negrot a, viz. Jack, Hetty, Duncan, James, Stephen and Betty, together v, if h or.r-k.A of the money on hand, and one halt" of the re.st of his personal property, subject to certain small pecuniary legacies and reservations in the will expressed ; and thereby gave, in case his wife should have another cliild before his death, or prove with child at, the time of his death, to such child, certain parts the land and personal property before given to his daughter Anne $ hut if either such child or Anne should ■’ie before his or her arrival at Ml age, or without heirs lawfully begotten, the part and share so given, to the one so dying, sb'»nld goto the survivor; and by the will, the ter;tutor further directed that a certain nuJaiio slave named Fanny, should be emancipated an*) sei tree, and that his executors should use all lawful means to have her set free, cither by the General Assembly or other competent authority, and that his estate should, defray the necessary expense, but that his “ executors should not, on any pretence whatever, ever suffer the said Fanny to be removed out of Orange county and by the will, testaior further bequeathed, “ if he should have no child at tne time of his decease, or his wife should not be with child, or in case he should at his death.*615have a child or children, and such child or children die before arriving at the age of twenty-one years, or without heirs lawfully begot tea, that then and in that case, ids slaves Duncan, James, Stephen and Betty, aforesaid, should be emancipated and set free, in the same manner and under the same rules as before mentioned concerning Fanny 5” and the testator further devised and bequeathed, that “ in case he should die without a child, or that his wile should not be with child at the time of his death, or in case of the death of his daughter JStuie, before she arrived at full age, or without heirs lawfully begotten, lie gave to William Whitted, hie brother, his house and lot No* 9, in the town of Hills-boro’, and his negro Jack 5 and to his brother Levi Whitted, he gave two tracts of land in Orange county, one purchased from James Hogg, the other from F, Dunn.” And by his will, testator further gave “that part of the money on bond debts due to him, and money arising from the sale of his personal property, given as aforesaid, to his child or children j if no such child or children, to be equally divided between his brothers, William said Levi, and all the, interest of his lands in the western country, also to his said brothers, to be equally divided between them 5 and the negro woman, Hetty, to his brother Levi: Provided, that each of them, tlie said William and Levi, pay unto my father, William Whitted, senior, in trust, for the use and support of Samuel Bigelow,, the sum of £9.5, and the further sum of £ 25, in trust, for the above mentioned mulatto child, Fanny, to be paid to her when she shall arrive at full age | and provided further, that they, the said William and Levi, pay to Mary Bird, Hannah Harris, Elizabeth Holden and Susannah Thompson, the sum of £ 11C each, that is to say, the said William to pay £ 55 to each of them, and the said Levi to pay £ 55 to each of ’.hem, within the term of two years after my decease ; and in case of failure to pay the legacies aforesaid *616my father and si iters, within the time limited, then the property willed to the said William and Levi, shall be equally divided between them, the said William and and my father, for the purposes aforesaid, and my sisters Mary Bird, Hannah Harris, Elizabeth Holden and Susannah Thompson, share and share alike.”

The testator further directed that his executors, for the use and benefit of his child or children, should lend into good hands, on interest, the money on hand, and take bonds for unsettled debts due to him, and also lend out as aforesaid, all the rents received for houses and lands and negro hire, except so much as might be necessary for the support of his child or children, and to have the interest regularly paid and converted into principal once a year, and also immediately collect all Unsafe and doubtful debts, and lend the monies collected on interest as aforesaid. The Defendants, together with William Norwood, esq. were left executors, but the Defendants alone qualified and took into possession the personal estate, and also took the care and nurture of Anne, who was then an infant, and received the rents and profits of the real estate devised by testator to his child.

The bill further stated, that at the time of making the will, and at the time of testator’s death, he liad no child but Anne, and that his wife, Susannah, was not at the time of making the will, nor qt any time afterwards, enseint of another child by the testator. That Complainant, after the death of Jehu Whitted, intermarried with Susannah, the widow, who afterwards died intestate, and the Complainant became her administrator.

The bill further stated, that Anne died an infant, intestate, without issue of her body, or having ever had any, and letters of administration on her estate were also granted to Complainant, by virtue of which administrations, Complainant claimed to be entitled to all the personal estate bequeathed to Susannah and Anne, with the profits thereof, and the rents and profits of the land.

*617The büi further stated that the Defendants, for the purpose, of emancipating said slaves, threatened to remove them to some State or country, beyond the juno «ilcíioa of the Court, and prayed that they might be enjoined from removing the slaves, aud that they might give security for iheir forthcoming at the order c£ the Court, or otherwise that the slaves should be delivered to the Sheriff for safe-keeping $ aud also prayed the writ of subpoena. The Defendants in their answer, admitted the death of Jehu Whittod, aud that lie left a will containing the. devises and bequests act forth in the bill, that they had qualified as executors to said will j they further admitted the intermarriage of Complainant with Susannah, the widow, her subsequent death, us well as that of Anno, as charged in the bilk and that administration on both estates had been oommiMod to Complainant. $ that Susannah never had any child by the testator hut Anne$ that as executors they took possession of the personal estate of their testator, and were now, and at all times, ready to account. Further answering, they said, that long since they had settled wish Complainant for Susannah's share of the estáte, and annexed, as parí of tiioir answer, their general account of the estate of their testator, as also .in account of so much of the estate as was given to Anne, an account of the rents of veal estate and hire of negroes. The answer farther stated, that the Defirndant, iuwi Whit ted, was appointed by Orange County Court, guardián to Anne, and as suck took into his bauds, or because renponsiblc for her estate; and the account of Use guardianship up to the Court, after Anne’s death, made part of the answer. The Defendants admitted that the girl, Fanny, had been emancipated, as directed by the testetor, and as to the slaves, Duncan, James, Stephen and Eetty, Defendants submitted whether the event had not occurred which, according to the testator’s directions, had placed those ne-groes in the hands of the Defendants, iu trust, to mss *618their best endeavors to have them emancipated. Be-fendants further insisted, that the legal estate was in. them, and that neither the next of kin of Anne, nor her administrator in their behalf, had any right to claim them now, or under any circumstances which might hereafter occur. As to the negro Jack, the answer submitted whether lie did not, under the will, belong- to the Defendant, William Whitted.

As to the profits of Anne’s estate, Defendants sub mitted whether they did not belong to them, and go over with the estate, according- to the limitations of the will j and as Anne was dead, without issue, they submitted whether the personal estate of Anne did not, under the will, belong to them ; and as to Hetty, it was insisted that she belonged to the Defendant, Levi.

Taylor, Chief-Justice.

The limitations over of the real and personal property to the testator’s brothers, in the two first sentences of the eleventh clause of the will, are certainly valid, if the disjunctive word or is to be construed as the copulative and. Many cases have established the prop'.ety of so construing- it in wills of this kind, otherwis he property would be carried o ver, if the first devisee .ed under the age of twenty-one, though he had It ft • sue, when the intent of the devisor was, that both evt ..s should happen, the dying under twenty-one and without issue, before the estate should go over. So that, at the age of twenty-one, it was intended that the daughter should have the power of disposing of the estate absolutely, and of making what provision she pleased for her issue, if she should have any hut in the event of her dying before twenty-one, that her .issue should not be deprived of the inheritance. Therefore the limitations over, are not upon an indefinite failure of issue, but upon such events as must happen, if ever, within the time prescribed by law. To the cases quoted^ may he added the following decisions in this *619State. Dickinson v. Jordan J. Blount — (1 Murphey, 380.) Lindsey and wife v. Burfoot — (Ib. 494.) Abington v. Alston — (N. C. Term Rep. 310.)

Tiie construction of that part of this clause which disposes of the money on hand, debts due, money arising* from the sale of property, and the interest of the testator's land in Tennessee, is attended with more difficulty, owing to the introduction of the words, “if no such child or children.” Nor should I feel any insuperable obstacle to connect those expressions with all the contingencies bo distinctly enumerated at the beginning of the clause, were it not for the provisions at the end. For the pronoun mch, being a word of reference, would grammatically relate to the child or children, which had been previously described, via. living; at the testator’s death, or surviving him and dying without issue and under twenty-one years of age. Cut the supposition that the testator intended bis'brothers to have this pro» perty, in the event of his daughter dying without issue under twenty-one, is rendered inadmissible by Ids directing ids brothers to pay his sisters one hundred and ten pounds each, within two years after his death $ ami on their failure to do so, rdinitiing his father and sisters to participate w ith his brothers, equally, in the property. Such a provision woo’d be rational and perfectly consistent in the event of the testator’s dying without any child, for then hi;: brothers would become immediately entitled to (lie property ; but to compel them to pay the money at that time, or to give them and the others the property at that time, in case of failure, when his daughter might live for years afterwards, and U remained in uncertainty whether she would die under age and without issue, was a provision which could scarcely have entered into the mind of any man. The other legacies contained in the proviso, are alike inconsistent with the belief, that this part of tho bequest was to await all the limitations enumerated in the beginning *620of the clause. The provision for the support of Bigelow, payable as soon as any legacies can be demanded, at the end or two years ¿ the sum to be para to ¿ninny Ayag j.,0 at the age of twenty-one, and might become due while the daughter Anne was yet alive, who might after all have left issue and died under twenty-one, after the lapse of a Ion $ period from the time the legacy was payable ; or might have attained the age of twenty-one, and thereby have defeated the limitation over.

The consequence of this construction is, that of tire property left to his daughter Anne, part of it is limited over to his brothers upon any one of several contingencies happening: whereas the other part, viz. money, debts, the proceeds of the sales and the western lands, are given to them only upon one contingency, viz. “ if he has no such child or children,” and his daughter Anne, having survived him, the event has not occurred upon which they were to take. If this is the necessary construction of the will, it must prevail, although a good reason cannot be given why the testator should have made such an arrangement of his property. If I were making a will for him, I should, probably, have made all the limitations dependent on the same events. But, on the other hand, he might have had some reason for so doing, and he liad a right to dispose of his property as he pleased. Now, if he designed to make them different, he could have used no expressions more apt for the purpose than he has done, fie enumerates all tho contingencies when he gives the house and lot and Jack, to William; he repeats them, when he gives the two tracts of land to Levi; and if he had taken no further notice of them, the subsequent devises, in the same clause, would have been subject to them. The introduction of part of them only, when he disposes of the residue of the property, may, therefore, have been designed. It would be a dangerous latitude of construction, to say that the testator did not mean what ho said, unless wo *621eotiH rlcuriy collect it from t!¡e wLeüe wü!, moro especially as csscii a conclusion would veedor absurd aud scssschm all the provisor» which are dependent on the other eu

The direction in the tenth clause, as to the emancipation of the sla\cs, is void, according to the decision in Craven's case, they consequently result to the next of • i:i of Ihe testator.

With respect f., Hie profits of the. real estate, there is nothing in the will to take them out of the operation of Site ."enera! rule; that as the fee was vested isi Anne, subject to he dúesfed on her dying muder age and unmarried, the profits which accrued from the death of the testator until her death, belong to her administrator.

Hall, Judge.

The testator lias, in the first clauses of his v.iH, given Ids estate to bis wife, his daughter Anne, and to his posthumous child, in case any such should be born.

In the. 11th claque, he directs, as to pari of the properly before given away, that in case IwohcnM die v*ilh~ out child, or that his wife should not be with chíid atibe time of his decease, or in ease of the death of ids daughter Anne before she arrives to foil age, or without heir;-» lavs fully begotten, then he gives to his brothers Levi and William such property. There is no doubt enter-tainod but that this is a good limitation. The», as to another part of Ms estate, also before given away, namely, money on hand, debts due to Mm, money arising from sales of his personal property given to my child or children. If ¡to such child or children, then to be divided belvuvn my brothers William and Levi. In the former limitation, he uses very different words from those used in the latter ; he could not designate the child Ibas his wife might bo enseint of at his death, by any" particular Maine $ ho designates Anns by the term child, aud her and the child that might be bora, by the term children. *622jf 'rt0 [ia(| jia¿ no suc[1 c¡¡j]({ as Anne, and had given nvev ÜíC property upon the contingency of his not having a posthumous child, it would be a natural expression to gay y? no Slic|, child, tiien &c. In such case, the time was fixed when the event might be looked for, on which the contingency depended. No doubt, if there had been no such child in expectancy, having a daughter Anne, he might, and probably would, have used other words than those he has used, namely, if no such child; because the child bo was speaking of was then in existence. But, I think, ho placed the contingency of the property going over upon the birth of a posthumous child, which must happen, if at all, , shortly after his death, and the existence or non-existence of Anne at the time of his death ,* and as she survived her father, I think the property vested in her. I cannot bring myself to a construction, that would refer the words, if no snch child or children, to the preceding devise, where words of limitation of a very different import are used in a devise of other property. The legacies afterwards given, to be paid in two years, harmonize with this construction ; •but would not suit one, by which the limitation in this case would be held good. I, therefore, concur in the opinion gives.

I concur also in the opinion given, as to the other points made in this case.

Henderson, Judge, concurs.