delivered the- opinion of the court.
There have been many questions of importance presented and discussed with ability by the respective counsel in this case:, which, in the view we have-, it is unnecessary for us to notice.
The petitioner claims her freedom under the will of Ignatius Bright. The items under which the claim is preferred are as follows:
“Item.—I will and bequeath my negro woman Caroline, to be and go free at the age of thirty-six years old’, both she and her increase, she being at this time seventeen years old.
“Item.—I will and bequeath my negro boy Joshua, son of said Caroline, to be and go free at the age of thirty-six years he being at this time four months old.”
The petitioner is a child of the negro woman Caroline, and was not at the time of the filing of her petition, nor is she now, thirty-six years old.
The question then is, can the petitioner, so predieamented, *88be entitled under the will of Ignatius Bright, to her freedom? We think not.
The rule o.f construction which obtains in all cases is, that the intention of the1 testator must prevail, unless it be opposed t@> some principle of, or to the policy of the law. This being so,, we are then to determine- what was the intention of the testator, in this respect, as displayed in- that portion of his will which we- have given. It is contended on behalf of the petitioner that, the testator designed to manumit his slave Caroline- when she should attain the age of thirty-six years, and her issue when the-period arrived at which Caroline would be thirty-six years old. To this view we cannot assent. Did the first item which we have- quoted stand alone, there might5 be room, for ingenious, philological discussion as to the intention; of the testator; but, we think, when it is considered in connection, with the succeeding clause; the will of the testator becomes-manifest, and is, that-he designed to manumit Caroline- when she should become thirty-six years old, and, also, to manumit eadi and every of her children when they should respectively attain-, the same age, and not before. We are aware-that this-interpretation of the language is deemed opposed. to that given in Hart vs. Fanny Ann, 6 Monroe, 49, a case,.in its general character, much resembling the one before us. With all respect for the judgment of that learned court, we cannot admit its authority in this- instance.
In-the-case before us, wherever Caroline-or her child Joshua are mentioned by name, the age of thirty-six years is clearly and explicitly designated as the age at which each of them is to be entitled to her or his freedom, and from this circumstance but one- conclusion can be properly drawn, and that- is, that he had fixed in his m-ind the age of thirty-six years- as the proper age at' which each of his slaves should go free.- At the time- of the making of his will,, the proof shows Caroline had but one child,. Joshua, .who was then-four months old, and the testator, in framing his will, deals eo nomine with alibis slaves then in. esse, designating, in language beyond all-dispute-^ the age of thirty-six years as that at which each of *89them should be entitled to freedom. In the absence of all supposable reason for a different intention in regard to children thereafter to be born, we are forced to give such a construction to the first item of the will which we have quoted, as will conform it to what is the manifest intention of the testator in regard to Caroline and her child, living at the time the will was proclaimed. In doing this, we but indulge the privilege which, it is admitted on all sides, belongs to the court, to transpose the words of the will, so as to make them read in a manner conformable to what appears to be the general and predominating intention of the testator. All the difficulty of interpretation which the first item presents, grows out of the location in it of the words, “both she and her increase.” Situated as they are in the sentence, the latter clearly is susceptible of two meanings, of the correctness of each of which much may be said; but by transposing these words, so as to introduce them after the word “Caroline,” the whole instrument is made consonant in all its parts, and the wish of the testator effectuated. These words, thus transposed, would make the clause read as follows:—“ Item. I will and bequeath my negro woman Caroline, both she and her increase, to be and go free at the age of thirty-six years old, she being at this time seventeen years old-”
In thus translating the will of Ignatius Bright, we give to it not only the meaning of the testator, as we understand it, but also observe the policy of the State as indicated in its legislation. The proof in the cause shows, that Caroline had ether children than the petitioner and Joshua. It is but fair to suppose, that the testator contemplated that Caroline would have children up to the period fixed for her manumission, and it is equally just to suppose, that in regard to the children born within a period near to the time designated for her manumission, that he did not design to cast them unprotected upon the world. The 13th section of the act of 1796, ch. 67, forbids the manumission of any slave who shall not be, at the time of manumission, “able to work and gain a sufficient maintenance and livelihood; “and the Court of Appeals, in *90Hamilton vs. Cragg, 6 Harr. & John., 18, have recognised the binding force of these words of inhibition on the acts of testators. We are clearly of opinion, that the petitioner is not now, nor was she entitled to her freedom at the time of the filing of her petition. And from this it necessarily follows, that we dissent from the circuit court’s ruling in regard to defendant’s second prayer. This view dispenses with the necessity of our noticing the other points.
Judgment reversed and no procedendo awarded.