James Stuart, late of the county of Caswell, died about the month of _____, 1854, having made and published a last will and testament, of which the following is a copy of the material parts, viz:
"1st. I loan to may daughter Frances A. Taylor, eight negroes, that is, Bill, Eliza, Stephen, Ellen, Atkinson, Lewis, Andrew and Eliza's baby, which has no name, with all their future increase during her natural life, for her sole use and benefit, and at her death, to the heirs of her body; and if at her death, she should have no children, nor grand-children, nor descendants *Page 121 from her body, then, and in that case, the property above-named, to go to my children then living, and the rest of my grand-children then living; and if none of my children should then be living, all the property I have loaned to my daughter Frances A. Taylor, my grand-children shall have such part as their mother would be entitled to were she then living.
"2d. The property I have heretofore loaned to my daughter Adeline T. Newman, six negroes, viz., Lewis, Martilla, Henry, Emily, Bob and John, I now loan to her daughter, Mary Allies Newman, during her natural life, for her sole use and benefit, and at her death, if she has no heirs of her body, all the above property that I have loaned her is to come back into my family, and be divided as above-named in my daughter Frances Taylor's property.
"3d. I loan to my daughter Mary R. Moore, five negroes, viz., Renben, Sarah, Elizabeth, Matthew, and William, with all their future increase, for her sole use and benefit during her natural life; but if she should leave no child or children, nor lawful heirs of her body, then the property I have loaned her to return back to my family, and be divided in the same manner as the above-named property I have loaned my daughter Frances A. Taylor.
"4th. I loan my beloved wife, Amy Stuart, all the balance of my negroes, with all their future increase, and all my lands and tenements, all of my stock of all kinds, house-hold and kitchen furniture, crop, c., plantation tools, c., during her natural life; nevertheless, my executor is to see that my lands are kept in good repair, and all moneys arising from said property I have loaned to my wife, after decently and plentifully supporting her, are to be loaned out annually, and the interest annually paid, and that loaned out again, and all the property I have loaned my wife, with all future increase, after her death, to be equally divided among my children and Mary Allis Newman, my grand-daughter; and if either of these heirs should die, leaving no lawful heirs of their bodies, then their part of the said property shall return back to my *Page 122 family, and be divided as I have provided for the other property I have loaned my children.
"5th. All the money I have on hand, or loaned out, my executors shall take in hand and loan out for ten years, and the interest collected annually, and that applied to the same use, and at the expiration of ten years, the money, with all the interest arising therefrom, shall be divided among my children, grand-children, c., in the same manner as the other property I loaned my wife.
"6th. All the property, negroes, c., that I have loaned to my children,c., and they have them in their possession, as long as they keep them, they are to pay all the taxes that is required by law for them; nevertheless, they are to be considered my property until such time as I have before stated."
Frances A. Taylor, named in the first clause of the will, died in the life-time of the testator, leaving children, Thomas and William K. Taylor; these, with Mary Allis Newman, and Mary R. Moore, now Mary R. Allen, having since inter-married with the defendant James M. Allen, are made parties defendant to the bill.
The bill is filed by the executor, asking the advice of the Court as to several questions that arise upon the different clauses of this will, about which there are conflicting claims among the several legatees, and some suggesting themselves to his own mind, which are of doubtful solution, and the decision of which may personally involve him.
1st. Whether he is to give to the several legatees immediate possession of their legacies, with an unqualified assent thereto, or whether, taken in connection with the 6th clause, wherein it is declared "the property is still to be considered as mine until such time as I have before stated," it may not be his duty to retain the possession and control of the property, and pay over to the legatees only the proceeds, or to give only a qualified assent, with the right reserved of taking possession of the property, as future contingencies might require.
2nd. A question arises between the children of Frances A. *Page 123 Taylor, and James M. Allen and wife, as to the meaning of the limitation over, and in the event that she should die without issue, the said children contending that the executor is to provide for the security of their contingent interest in such property.
3rd. Whether the expression "sole and separate use," c., gives a separate interest to Mary Allis Newman and Mary R. Moore, after their marriage, they being single persons when the will was made; or does the husband of Mary R. Moore, defendant Allen, take the property without incumbrance, jure mariti?
4th. Whether Mrs. Amy Stuart has a right to work the negroes, land, c., and sell the crops, and after taking enough of the proceeds for her comfortable subsistence, loan out the balance herself; or is it made the duty of the executor to supervise these operations, sell the crops, and loan out the money?
5th. Whether the executor is to take in hand for accumulation, only the money "loaned out," or is it his duty to manage all the funds of the testator in the same way, irrespective of the source from which they may have arisen?
The defendants answered, not disputing any of the facts set forth in the bill, but each alleging his peculiar views of the several provisions in question.
Cause set for hearing on the bill, answers and exhibits, and sent to this Court. The bill is filed by the plaintiff, as the executor of James Stuart, for the purpose of getting the advice of the Court upon the construction of the will of his testator, and as to his duty in relation to several particulars which he mentions.
The first, second and third enquiries which he proposes, *Page 124 and upon which he seeks the direction of the Court, involve the same principle, and may be answered together.
There is no doubt that he may give his unqualified assent to the bequests contained in the first three clauses of the will. If the contingent remaindermen should have reason to fear that the slaves are, at any time, about to be carried out of the jurisdiction of the Court, they may take such steps as they may be advised are necessary to secure their interests. No trust to that effect is imposed by the will of the executor. The sixth clause clearly indicates that the legatees are to have the possession of the property — negroes, c.; and the qualification annexed, that "they are to be considered my property until such time as I have before stated," if taken literally, is senseless and void. A dead man cannot be considered the owner of property, and the expression is too vague and uncertain to be allowed the effect of conferring the title upon the executor, in opposition to the plain bequests of the legatees, contained in previous clauses of the will.
A contest between the remaindermen as to their respective rights, may be raised and settled by them at the proper time. The executor has nothing to do with it.
If the female legatees, Mary Allis Newman and Mary R. Moore, had been married women at the time when the will was made, the expressions contained in each of the second and third clauses, "for her sole and separate use and benefit," would have conveyed a separate interest to the wife; (Adamson v.Armitage, 19 Ves. Jr., 419; Goodrum v. Goodrum, 8 Ire. Eq. Rep. 313;) but as they were not, we can see no reason why they do not take the negroes and other property in the usual manner, and subject, of course, to the rights which the husband, whom either of them has married, or may hereafter marry, may acquire therein jure mariti. In the case of Miller v. Bingham, 1 Ire. Eq. Rep. 423, it was decided in this Court that, where property was conveyed to a trustee for the sole and separate use of a woman, then married, and she survived her husband and married again, she no longer held the property to her sole and separate use, but the whole interest *Page 125 in the personal property vested in her second husband. The case before us is not so strong, because, in addition to the fact that the legatees were, when the will was made, single women, there is no expression indicating a trust for them.
4th. The widow is clearly entitled to the possession of the property given to her for life, and, as an incident thereto, she has a right to sell the crops, and apply a sufficiency of the proceeds for the comfortable support of herself and family. What is not so needed she must lend out, from time to time, according to the provision to that effect in the will. That duty, in relation to the money arising from this source, is not imposed upon the executor in express terms, as it is with regard to the other moneys in the next succeeding clause. Hence, we conclude that the testator intended that his widow, who was to have the possession of, and a portion of, the profits arising from the land, negroes, c., should herself accumulate the balance for the benefit of the children, after her death.
5th. A fair construction of the fifth clause will vest in the executor, for the purpose of accumulation, all the money due to testator on any account. We can hardly suppose that he intended to die intestate as to any part of his estate, and money "loaned out" may, to prevent such an effect, very well be construed all other debts due him, as well as those created by loans made by himself. The period of accumulation directed for this fund, is ten years, without respect to the death of the widow. As she may die before the expiration of that period, the question whether the division should be postponed beyond it, may never arise, and it would be premature to declare an opinion upon it now. It is sufficient for us to declare, at present, that it is the duty of the executor to pursue the direction of the will for the accumulation of the fund for ten years from the death of the testator. If the widow shall be then living, the Court will then be prepared to give further directions, should any be desired. An account may be ordered, should the parties wish it.
PER CURIAM. Decree accordingly. *Page 126