The plaintiffs claimed title under a paper writing, purporting to be the last will and testament of William Hicks, who resided in the state of South Carolina, and died there, in the year 1791. A copy of this writing, together with *Page 126 its probate, certified by the judge of the Court of Ordinary, where the same was proved, and accompanied by the testimonial of the Governor of the state of South Carolina, that the person giving the certificate was the proper person to take such probate, and to certify the same, was offered in evidence by the plaintiffs, and objected to by the defendant, upon the ground that it was not properly authenticated; but was received by the court. This will contained the following clauses: "Unto to my daughter Obedience I do give and bequeath one negro girl named Hannah, during the said Obedience's natural life, and after her decease, the said girl shall go to the said Obedience's children. Unto my daughter Frances I do give and bequeath one negro girl named Grace, and her increase, during the natural life of the said Frances, and after her decease, the girl shall go to the said Frances's children. Unto my daughters Elizabeth and Martha, I do give and bequeath one negro woman named Rose, and child, Flora, in the following manner — the said Rose and child, as likewise her increase, to remain in possession of my executors, to support my above named daughters, till the time that my daughter Martha shall be fourteen; and then she, the said negro, and her increase, shall be equally divided between my said daughters Elizabeth and Martha." Prior to the death of the testator, his daughter Frances had intermarried with Moses Knight, and had two children, to wit, Benjamin Knight, and Anna, afterwards married to Daniel McIntosh; and after the death of her father, the said Frances had four other children, to wit, John A. Knight, Elizabeth, afterwards married to Caleb Curtis, Frances, afterwards married to Cullen G. Britt; and Sarah Knight. Of these children, Benjamin and Sarah died in the lifetime of their mother, who died in May, 1828, about eleven months before the commencement of this suit. The action was brought in the names of the surviving children, together with the husbands of the females, and the administrators of Benjamin and Sarah Knight, deceased, to recover from the possession of the defendant, the negro girl, Grace, mentioned in the will of William Hicks, and some of the children which she had *Page 127 borne since the death of the testator. For the plaintiffs it was contended, that by the bequest in the will above-mentioned, to the testator's daughter Frances, she took a life estate in Grace and her increase, and that after the death of the said Frances, Grace and her increase became the property of the said Frances's children; but it was objected by the defendant, that the girl Grace only, and not her increase, was given to the children of the said Frances after her death; and his Honor was requested so to charge the jury, which he refused. The defendant objected also, that there was a misjoinder of plaintiffs, and moved for a nonsuit upon that ground, contending, that as Sarah Knight was born after the death of the testator, and died before her mother, no interest under the said bequest vested in her, and that consequently her administrator was improperly made a party; and that as Benjamin Knight also died before his mother, his representative was likewise improperly joined in the action, as one of the plaintiffs. This point was reserved by his Honor, and subsequently decided against the defendant. The defendant set up title to part of the slaves in question under a judgment and execution against Moses Knight, the husband of the legatee for life; and to the remainder under a purchase at a sale made by a trustee to whom the said Moses Knight had conveyed them for the purpose of securing the payment of certain debts; and it was contended for the defendant, that having acquired the possession of the said slaves legally, it was incumbent on the plaintiffs to show that they had made a proper demand before the bringing of their suit. To prove that such a demand was made, the plaintiffs introduced a witness, who testified, that in September, 1828, he went with John A. Knight, one of the plaintiffs, who said to the defendant, "I demand of you Grace, Juno, Beck, Wisdom, and Wesley," to which the defendant made no reply. For the defendant it was insisted, that as John A. Knight was not alone entitled, it was necessary that the demand should have been made by the authority or with the assent of all the plaintiffs, and that this must be shown in evidence to the jury; and his Honor was requested so to *Page 128 charge. The defendant then introduced testimony to show, that the slaves in question had been for many years in the possession of Moses Knight, who had kept and used them as his own; that they were generally regarded in the neighbourhood as his property; that at the sale made by the trustee aforesaid, one of the plaintiffs was present, and bid for one of the said slaves, and another plaintiff, in answer to an inquiry about the title, said, that he knew of no adverse claim to that of Moses Knight; and the defendant proved further, that two of the plaintiffs then held two of the children of Grace born after the death of the testator, as their own property, under titles acquired from Moses Knight, in his own right. From this the defendant contended, that as the plaintiffs claimed under a written instrument, they were presumed in law to be cognizant of its contents, and that therefore their conduct was deceptive and fraudulent towards him, and that they were thereby estopped from setting up a claim to the said slaves. His Honor instructed the jury, that as to the demand, if they were satisfied from all the evidence in the cause, that it was made by John A. Knight, under the authority and with the assent of the other plaintiffs, and the defendant did not then object to the authority, but held the slaves in his possession, it was a sufficient demand to sustain the plaintiffs' action: and as to the question of fraud, that although the presumption might be that every person who had a written title to slaves, knew of the existence of that title, and that although two or more of the plaintiffs might have been at the sale of the said slaves, and then expressed the opinion, that the title of Moses Knight was good, yet if the jury should believe that the plaintiffs were really ignorant of their rights, and acted honestly in what they said and done, they could not be chargeable with such a fraud, as to affect their rights. A verdict was rendered for the plaintiffs, and the defendant appealed. — It may well be questioned, whether the refusal of the *Page 129 nonsuit and of the instruction prayed for, brings before this court matters proper for its consideration. The will was made in South Carolina, and all disputes about its interpretation should be determined by the law of South Carolina. The court of this state do not know the law of other states, and a controversy respecting that law is ordinarily one of fact, which must be decided on evidence, by the jury, under the instruction of the court. State v. Jackson, 2 Dev. 563. The only exception to this principle, that we are aware of, is to be found when the plea of nul teil record is pleaded to a judgment, or other proceeding of a court of record in another state: when, from the necessity of the case, the court to whom it is exhibited must pass not only upon the existence of the supposed record, but upon its legal effect. Carter v. Wilson, ante, vol. 1, p. 364. It does not appear that any evidence was offered in this case of the law of South Carolina; but as the counsel on both sides have argued these points upon the construction of a will made in North Carolina, both assuming as a fact, that the law of South Carolina is the same with ours, we have examined the points, and shall declare our opinion upon them.
The objection of a misjoinder of plaintiffs seems to us unfounded. It assumes, that one of two constructions might be put upon this will. It assumes, that the word "children" either comprehends such only of the children of the testator's daughter, as were in being at the death of the testator — and if so, those subsequently born had no interest in the subject given — or it comprehends those who were in being at the death of the legatee for life, and in that event the representatives of the children who died in her lifetime — or at all events the representatives of Sarah Knight, who was born after the death of the testator, and died before the legatee for life — have been improperly joined as plaintiffs. We understand the rules applicable to words of this description to be well settled. Where a legacy is given to a described class of individuals, as to the children of A. B., and no period is appointed for the distribution of it, as the legacy is due at the death of the testator, and the two years allowed to the executor *Page 130 for settling the estate are given but for the convenience of the estate, the rights of the legatees are settled and determined at the death of the testator. Unless, therefore, something else appears in the will to indicate a different intent, the persons answering the description at his death, that is to say, the children of A. B. then in existence, or legally considered as then in existence, are alone entitled to the bequest. When the enjoyment of the thing given is not to be immediate, but is postponed to a particular period, as at the death of A. B., and there are no special provisions in the will indicating a different intent, then not only those who answer the description at the death of testator, but those who come into being after his death, and before the time when the enjoyment is to take effect, so as to answer the description at any time before that assigned for the distribution, are all entitled to take. In the latter case all are embraced, because no inconvenience can result from taking them in, and each one of the family of children is supposed to have been comprehended by the testator within such general words. If any thus entitled to take, die before the period of distribution, and there are no words in the will indicating an ulterior disposition of their interests, as to the survivors they are vested interests, and transmitted to their representatives. This was held in the case of Devisme v. Mello, 1 Bro. Ch. Ca. (appendix) 537, with respect to the interest of one in being at the testator's death, and dying before the legatee for life. On the same principle it follows, that this transmissible character is impressed on the interest of one coming into being after the testator's death, and predeceasing the legatee for life. But this conclusion does not rest on principle only; it has been sanctioned by several decisions. In Spencer v.Bullock, 2 Ves. Jr. 687, it was recognized as the established rule by the Master of the Rolls, though because of peculiar provisions in the will, he held the rule not applicable to the case before him; but in Taylor v.Langford, 3 Ves. 119, a case in point, he not only admitted the rule but applied it. Malim v. Barker, 3 Ves. 151. Middleton v. Messenger, 5 Ves. 140, and Walker v. Shore, 15 Ves. 124, are also direct authorities upon the point. *Page 131
We are also of opinion that construing the clause in question by the law of North Carolina, the Judge could not give the instruction which was asked for by the defendant. From the first settlement of our state, it has been a rule of property in limitations of slaves to one for life, with remainder to another, that the remainder carries the increase with the slaves, and vests the property thereof in him to whom the remainder is limited. Whether this rule was adopted in order to compensate the remainderman for the deterioration of the parent stock by age whilst in the service of the temporary owner; or was founded on customs and legal notions brought into the infant colony by emigrants from Virginia, who were among its earliest settlers — it has been held as one particularly convenient for making a future provision in slaves, always regarded as far more valuable and permanent than other personal property, suited to the exigencies of growing families. According to this rule, the increase of Grace, as appurtenant to, and in legal contemplation, a part of Grace, became the property of the ulterior legatees, subject to the temporary interest of their mother, unless it could be clearly collected from the will that the testatorexcluded the increase from the gift of the parent stock. Upon this will such an intention is not to be collected. It is true that the increase are mentioned in the bequest for life, and are not mentioned in the bequest of the remainder; but the expression of what the law implies is but superfluous; and the omission to mention with the thing given, that which the law annexes thereto, and considers as a part thereof, furnishes no reason to reject the legal sense of the gift. Besides, if the testator did not dispose of the increase in this clause, what did he intend should become of them? The first legatee, his daughter, could enjoy them only her life; for so he expressly declares — if not given to her children, then upon her death, they must fall into the residue, but this dead daughter is one of those to whom the residue is given. Is there not a moral certainty that he did not intend this? No aid is furnished in support of the construction set up by the defendant by a recurrence to the other clauses of the will. In a former clause a *Page 132 negro girl Hannah, is given to the testator's daughter Obedience for life, and after her death, to the children of Obedience, and the word "increase" is not used at all. In a subsequent clause, two negroes, Rose and Flora, are directed to remain in the possession of his executors, until his daughter Martha shall attain fourteen years of age, and then to be divided between his daughters Elizabeth and Martha; and in this clause the term "increase" is used both in the special and in the ulterior disposition. On a comparison of these clauses, it seems to us apparent, that sometimes the testator omits the term "increase," and sometimes inserts it, when in all he intends the increase to pass.
The other exceptions mentioned in the record, and not argued here, could not have been maintained. The instrument offered in evidence as the will of William Hicks, and its probate, were duly authenticated, according to the requirements of our act of 1802, (Rev. c. 623,) and therefore they were properly received in evidence. At the time when this suit was instituted, the defendant held and claimed the negroes sued for as his property, and therefore, no demand was necessary; but if a demand had been necessary, a sufficient one was fully proved, if the jury credited the testimony. The alleged estoppel was of no avail for many reasons. It is enough however to say, that a title in slave property cannot be made out by a parol estoppel. If any fraud were practised on the defendant by the plaintiffs, or any of them, he must seek redress as he may be advised; but such fraud transferred to him no legal title in the slaves. In the present case, however, the fact as to the supposed fraud was, and as we think unnecessarily, submitted to the jury, and by their verdict they have negatived it.
PER CURIAM. Judgment affirmed. *Page 133