The questions arising in this case, arise out of several provisions in the will of Moses Holmes, one of which is as follows: "I give and bequeath to my daughter, Sarah Miller, a negro girl, named Nancy, and a boy, named Robert, now in her possession;" another of which is as follows: "9th. In the event of the death of any of the negroes willed to my children above, it is my will and wish that the loser or losers shall have another `negro or negroes,' of equal value, from among the negroes hereinafter willed to my wife during her widowhood." *Page 251 Another clause, pertaining to this question, is as follows: 10th. "To enable my beloved wife, Anna, to live comfortably during life and widowhood, and for the purpose of raising and educating, in a suitable manner, my minor children, without any expense to them, I give to her all the balance of my negroes, my household and kitchen furniture," c., c. A codicil is added to this will, which is also material to the questions involved. It is as follows: "It is my will and wish, should either of my children have the misfortune to lose any of the negroes willed to him or her, that it shall be made up out of the negroes named as a balance in the 10th clause of the foregoing will, which has been given to my wife during her widowhood, and which balance, as named in the 10th item, I now hereby make subject to such contingencies as above named.2d. It is my further will and wish that all my lands and negroes, above willed, to my daughters — shall, after their or the death of either of them, go to their children, if they have any, and if they have none, then the land and negroes shall be equally divided among their sisters and brothers." Sarah Miller, mentioned in the above recited clause, was the wife of Michael Miller at the time the will was made. She died in the year 1854, leaving the plaintiffs, her only children, surviving her, and leaving her mother, Anna, mentioned in the 10th clause of the will, also surviving her.
The bill states that the boy, Robert, given to the mother of the plaintiffs, as above stated, died in her life-time, that she called upon the executor to make the substitution of another negro, as directed in the will, that he then refused, and still refuses, to do so; that, shortly after the death of Mrs. Miller, the mother of the plaintiffs, the girl, Nancy, also died, and that being advised, that the right for a substitution of another slave, passed by force of the said will and codicil to the plaintiffs, they demanded that he should make the same out of the slaves still in the hands of the testator's widow, Anna, but this he refused and still refuses to do.
The prayer of the bill is, that the executor may be compelled *Page 252 to sit over and assign to the plaintiffs, out of the slaves designated, slaves of equal value with those that died.
The answers contest no fact mentioned in the above statement, but the defendants, who are the executor, the widow, and the children, being legatees and next of kin of the testator, say that Robert, the slave, mentioned in the pleadings, was very sickly, and finally died of consumption, that he was, in fact, worth little or nothing when he went into the widow, Anna's, possession. They controvert the legal positions assumed by the plaintiffs, and deny that they are entitled to the substitution prayed for. The claim of the plaintiffs is, as we think, fully sustained by a fair construction of the will of their grandfather, Moses Holmes. Whatever interest in the slaves, or in any matter concerning them, which was given to the mother, was confined to her for life, and after death, was given to her children. As to the boy, Robert, the question is too plain to admit of argument. When he died, in the life-time of the plaintiff's mother, another slave of equal value, might have been, by the terms of the will, immediately substituted in his place, and then, upon the death of their mother, such substited [substituted] slave would have necessarily belonged to her children. Their right is not to be defeated by the delay of the executor to perform his duty. The case of the girl, Nancy, is somewhat more doubtful; but a fair interpretation of the language of the testator, will, in our opinion, give the plaintiff a right to have another slave substituted for her. The testator clearly intended, that whatever interest his daughter took in the slaves which he bequeathed to them, should, at their deaths, belong to their respective children. If, then, the girl, Nancy, had died in the life-time of the plaintiff's mother, another girl would have been substituted in her place, and would have devolved upon the plaintiffs, upon the death of their mother, *Page 253 as we have already decided, with respect to the boy, Robert. As Nancy survived the mother, the right to have another girl substituted in her place, passed with her to the mother's children, and upon the death of the girl, after the death of the mother, this inchoate right to have the substituted slave became perfect. To make this view more obvious, it will be observed that, in the 9th clause of the will, it is said that the event of the death of any slave given to either of the daughters, "the loser or losers shall have another negro," c. The loser or losers refer, in that clause, to the daughters alone, because the absolute interest is there given to them; but in the codicil, the interest in the slaves is divided, and a life estate only is given to the daughters, respectively, while the absolute interest in remainder is given to their children, so that the mother, in any particular case, or her child or children, may be the "loser or losers," at any time, while the slaves, from whom the substituted slave is to be taken, shall remain in the hands of the testator's widow — that is, during her life or widowhood.
The plaintiffs are, therefore, entitled to a decree for two slaves of the same value with Robert and Nancy, as such value was, at the time of their respective deaths, to be taken from among those given to the widow by the 10th clause of the will. It is said, in the answer of the defendants, that the boy, Robert, was sickly, and of very little value when he was put into the possession of the plaintiffs' mother, and that he ultimately died of consumption. This is neither admitted nor proved; but, if it were, we think that from the manifest intention of the testator to provide equally for his daughters, in slaves, the boy in question must be estimated as if he were ordinarily healthy, and of the average value of a boy of his age, size and qualities.
For the purpose of ascertaining this, there must be a reference to a commissioner, and the cause will be retained for further directions upon the coming in of the report.
PER CURIAM, Decree accordingly. *Page 254