The will is so imperfectly expressed that it is very difficult to put a sensible and consistent construction on it, and (89) one cannot be sure that a decision either way would be carrying *Page 69 out the intention of the testator. Indeed, we think it probable that the actual purpose in this case, if it had been expressed, or as it would have been expressed if the attention of the testator had been drawn to it, will not be effectuated by the construction which we are obliged to put on this disposition by the language used and the settled principles of interpretation.
As to the negro woman Penny, herself, clearly the decree cannot be supported. No doubt, she belongs to the plaintiffs; but she is their legal property, and may be recovered from the possessor in detinue. The assent of the executor to the gift for life to Mrs. Hurdle does not appear to have been in any manner qualified, and a general assent to the legacy to the first taker inures as an assent to the remainder-man, and the executor is no longer liable to the remainder-man. That is settled doctrine, and has been very recently acted on in Howell v. Howell, 38 N.C. 528, and Achesonv. McCombs, ibid., 455.
There is more doubt as to the three children; and, possibly, we may be disappointing the expectations of the testator as to the effect which he thought would be given to his words, while we are governed by his intention as expressed by his words. But we believe this case must be determined by the general rule, that "increase" means only the issue born after the testator's death. It may be carried back upon the apparent intent, so as to include issue born after the making of the will, or even that before, by any words of reference to a period from which the birth of the issue that is to pass shall be counted, as was stated inHurdle v. Elliott, 23 N.C. 177, and Stultz v. Kizer, 36 N.C. 538. But there is no such word of reference here. "All her increase" means, in this case, no more than "increase" per se. It is very clear that in the gift to the plaintiffs the testator meant to give only such negroes, namely, Penny and her increase, as were personally given to (90) their mother for life; and it is probable that he may have used that term "increase" because he thought that without it the future issue of Penny would belong to the daughter as tenant for life. Now, it is apparent that the two children, Harry and Kate, born before the will was made, are not given by it to Mrs. Hurdle for life, but are either given to her absolutely or fall into the residue. For the words are, "I give my daughter Clarissa all the property I have heretofore possessed her with,except Penny, which I lend to her during life." It is to be noted that the gift is not of such property as the testator had put into the possession of the daughter, and was then in her possession; but it is of all property which he had at any time before put into her possession, though it might not then be in her possession, but was in that of the testator himself. That is the operation of the word "heretofore," of itself. But that is confirmed by the exception of Penny, for it is the *Page 70 nature of an exception to take out of a disposition what, but for the exception, would pass by it. The testator thus gives us to understand that he knew that his daughter would have Penny, under the general terms of the gift to her of all the property he had theretofore put into her possession; and, therefore, since Penny alone is excepted, and not her two children then born, and that had been with their mother in the possession of the daughter, the conclusion logically follows that those two children cannot be embraced in the exception, but were left, under the operation of the previous disposition, in absolute property to the daughter. Indeed, it may well be supposed that while the testator was, in view of his son-in-law's imprudence, making some permanent provision for his daughter's children in the bequest of Penny and her subsequent issue, he thought it but right to leave to the daughter herself and her husband the two young negroes, not only as a provision of his bounty for them, but as justly their right in remuneration for (91) their care and nurture of them at their birth and for some years afterwards. If that be the correct view of the will, those two negroes still belong to the daughter's executor, as the executors of the father never assented to the legacy as regards them, and they were not reduced into the possession of the husband. But if that were not the correct interpretation of the clause, and Harry and Kate are not given in entire property to Mrs. Hurdle, then they are not given to her at all, as the gift to her is of Penny nominatim, and she only gets her increase as included in Penny herself, that is, such as should be born after the will went into effect upon the death of the testator. If Mrs. Hurdle was not to have them, we cannot think the testator meant the plaintiffs should, because the plaintiffs are to have nothing until their mother's death, and why postpone their enjoyment of these two slaves until that event, when the mother was to have no benefit from them? It is not natural that those two children should be separated from the mother in their infancy and kept as an unproductive part of the general residuum. Besides, the gift over to the plaintiffs is not upon their mother's death, whereas the residuum is to belong to the testator's widow for her life, and then be divided between Mrs. Hurdle and two other children of the testator. It is not necessary now to say whether those two negroes belong to Mrs. Hurdle's representative or fall into the residue of the testator's estate, as, in either case, the plaintiffs have no right to them. Still weaker is the claim to Kitty, who never was in possession of Hurdle, but was born after the testator resumed the possession of Penny, and remained in his possession to his death. Clearly, the plaintiffs' mother did not take that negro, either absolutely or for life, and unless she had taken in the latter manner the plaintiffs, as has been already mentioned, *Page 71 were not intended to take, as far as we can see; and they cannot take her under the term "increase" merely.
The decree must therefore be reversed and the petition dismissed; (92) and the plaintiffs must pay all the costs.
PER CURIAM. Reversed.