The only question in this case arises on the construction of certain bequests in the will of Maxwell Chambers, who died in 1809, viz.: "I give and bequeath to my son, Edward Chambers, as trustee of my daughter, Ann Chambers (wife of Henry Chambers, Sr.), the five following negroes (naming them), to have and to hold to my said son, Edward, in trust, and for the benefit of my daughter, Ann Chambers, and her heirs forever. It is my wish and request that my son, Edward, will pay over to my daughter, Anne, the profits arising from the said negroes semiannually, for her support and comfort." To which is added the following codicil: "To express my intention in the annexed will, I add this codicil: My intention in the devise of five negroes, to wit, Beck, Mill and her three children, Louisa, Rachel, and Abb, to my son, Edward Chambers, as trustee of my daughter, Ann Chambers, I wish to be clearly and precisely understood. My intention *Page 398 is this: I give the said five negroes, to wit, Beck, Mill, Louisa, Rachel, and Abb, to Edward Chambers, to hold in trust and for the sole benefit of my daughter, Ann, to support her during her life with the profits arising from the labor and hire of the said five negroes and of their increase; and if my daughter, Ann, should have lawful issue, or lawful heirs of her body, living at the time of her death, then I desire, will, and order, that my said son, Edward, trustee of my said daughter, Ann, shall deliver and convey, absolutely, at the death of my said daughter, the said five negroes, and all their increase, to the said lawful issue or lawful heirs of the body of my said daughter, Ann, living at the time of her death; and further, it is my intention, will, and order, if my said (517) daughter, Ann Chambers, shall die without leaving lawful issue, or heirs of her body, that then, and in that case, my said son, Edward Chambers, shall deliver and convey, absolutely, the said five negroes, and all their increase, in equal distributive shares, to my own heirs, or shall sell the said five negroes and all their increase and divide the money arising from the sale thereof, in equal portions, among my said heirs." It is objected here that the legal title was in the representative of the trustee, but it was finally agreed by the parties that all objection as to the parties be withdrawn, and that the cause should stand and be heard and determined upon the merits only. It was agreed further that the slaves sued for are the increase of some of those bequeathed in the above recited will, and that the plaintiffs are the only heirs at law and next of kin of the said Maxwell Chambers. It is further agreed that after the death of her first husband, Henry Chambers, the said Ann married George Miller, whom she survived, and that the slaves in controversy were allotted to the defendant as one of the next of kin of the said George, who has held them in that character ever since, and that the legatee, Ann, died about June, 1859, without leaving children or issue living at the time of her death. The question was whether the limitation in remainder, after the death of Ann Chambers, was valid, and it was agreed that if it should be the opinion of the court that such was the case, then judgment should be rendered in favor of the plaintiffs; otherwise, the plaintiffs should be nonsuited. His Honorpro forma declared his opinion in favor of the defendant, and plaintiffs took a nonsuit and appealed. The single question presented by the case agreed is whether the limitation over of the estate given to the daughter, Ann, upon her dying without issue, be too remote. The language used *Page 399 in the body of the will confers upon the daughter an absolute (518) estate in the property; but in the codicil the testator explains at large his intentions as to this bequest, and upon the language of this explanation the case turns.
After making some contingent limitations to such children as Ann might leave (into the validity of which it is not necessary for us to inquire, as she left no children), the testator proceeds to declare: "If my said daughter, Ann Chambers, shall die without leaving lawful issue, or heirs of her body, that then, and in that case, my said son, Edward Chambers, shall deliver and convey, absolutely, the said negroes and increase to my own heirs."
Without insisting upon the words "leaving" as sufficient of itself to restrict the "time" of the event then in the mind of the testator, and fix it at the death of the daughter (about which there might be some difference among learned authorities on the subject), a purpose thus to fix it is perfectly clear to our minds, when the language of that part of the codicil which immediately precedes it is considered. Having made provision for the daughter during life, the testator proceeds: "and if my daughter, Ann, should have lawful issue, or lawful heirs of her body, living at the time of her death, then I desire, will, and order, that my said son, Edward, trustee of my said daughter, shall deliver and convey, absolutely, at the death of my said daughter, the said negroes and increase to the said lawful issue or lawful heirs of the body of my said daughter, Ann, living at the time of her death." Then follows the clause which has been already quoted, viz.: "and further, it is my intention, will, and order, if my said daughter, Ann Chambers, shall die without leaving lawful issue, or lawful heirs of her body, that then," etc. It will be perceived that a disposition of the property is here made in two alternatives — first, if the daughter should have issue, and,second, if she should not. If she should have issue, living at her death, then at her death the property is to go to such issue living at her death; and if she should die without leaving issue, then the property to be conveyed to my own heirs. If it be asked with respect to the (519) latter part of the above clause, "without leaving issue," when? can any one who has the reasonable knowledge of or respect for the structure of our language be at a loss for the answer? The period of time to which the mind of the testator was directed then was the death of his daughter. He provides for children living at her death, and if she leave none, gives it over. Leave none when? At her death, is the irresistible response.
In the connection in which we find the word leaving, the other words, "living at her death," is an obviously grammatical ellipsis, and there was *Page 400 no necessity for a repetition of it to make the sense clear. To avoid tautology, the testator seems to have dropped the phrase, "living at her death," and used a word which he evidently regarded as synonymous. Most men, indeed, would so regard it, and hold that the word leaving, in its application to a subject like the one before us, meant separation from such things as had a present existence.
We are aware that refinements on the subject have been occasionally at variance with common sense and grammar, but we do not think that any case can be found where, in the midst of such a context, "leaving" has not been interpreted as referring to persons then in being, and read leaving livingat her death. This subject has been so recently discussed in this Court,Newkirk v. Hawes, 58 N.C. 265, that we shall not elaborate it further. That case, indeed, is considered as an authority in point.
It is the opinion of the Court that the limitation over to the testator's own heirs is not too remote, but valid, and the contingency having happened upon which that limitation was to vest, the heirs are entitled. This opinion makes it proper to reverse the pro forma judgment of nonsuit in the court below, and to enter a judgment for the plaintiffs according to the agreement.
PER CURIAM. Reversed.
(520)