The following case was presented by the pleadings:
Joseph W. Guilford made his will in the year 1837, and thereby appointed the plaintiff his executor, and died in 1840. The widow of the testator dissented from his will and has since married Lewis.
The testator left a son (G. W. Guilford) who is unprovided for, and was born after the making of his father's will. Lewis and wife, and the infant son (G. W. Guilford) have filed petitions in the County Court of Beaufort, to recover of the executor their distributive shares of the testator's estate, according to the several acts of assembly in such cases made and provided. The testator bequeathed as follows: "At the expiration of two years, I leave my negroes (except Dan) to be sold by my executor, and divided into three shares; one-third to George Guilford and Gulana Guilford, his sister; and the other two-thirds between Noah W. Guilford and Elizabeth *Page 130 Langly, equally." The testator further bequeathed the negro boy Dan to Alvana Morris, an infant, and says, "I wish my executor to hire him out, and apply the proceeds, or so much thereof as may be necessary to raise, cloth and educate said child. And if the said Alvana Morris should die before (169) she arrives at the age of twenty-one years, then the negro boy Dan to go back and be sold by my executor; and the proceeds to be divided between Elizabeth Langly," and others. The testator gave his executor a power to hire out the negroes for the two years, and to divide the proceeds of hire among the very same persons, and in the same proportions, as the slaves were directed to be divided at the expiration of the two years. The executor has sold the slaves as directed by the will; and the proceeds of sale are now in his hands ready for distribution. After making his will, the testator gave, by deed of gift, two of his slaves to his daughter Elizabeth Langly. The other legatees, under this clause of the will, insist, that she should bring the value of the said two slaves into the fund for division; as they say, she has been already advanced to that amount. Elizabeth Langly insists that the two slaves, given to her by her father, compose no part of the legacy of negroes, bequeathed to be sold by the executor, and the money divided among the four legatees as above described. Secondly, the guardian of Alvana Morris insists, that all the hires of the slave Dan belong to her: And that no part of his hire, during her life, is limited over to others, on the event of her dying before she arrives to the age of twenty-one years. The plaintiff, the executor, has brought all the parties interested in the above controversies before the Court. And he prays, that the trust fund in his hands, may be administered by the Court, according to the just rights of the said parties to the same. First. As to the legacy, "I leave my negroes (except Dan) to be sold by my executor, and divided into three shares." This is not a general legacy; it is not by law chargeable upon the whole personal estate undisposed of. It (170) is a specific legacy of all the negroes (except Dan) the testator owned at the time of his death; for, at that time, the will legally speaks. If a testator bequeath all the horses, which he may have in his stables at the time of his death, it is a specific legacy; or, "such part of my stock of horses which A shall select, to be fairly appraised to the value of £ 800," is a specific legacy.Fontain v. Tyler, 9 Price, 98; Richards v. *Page 131 Richards, 9 Price, 226; Wil. on Ex., 739. At the time of his death, the testator, Joseph W. Guilford, did not own the two negroes, Asa and Sally; he had given them before to Elizabeth Langly. And, although she is one of the legatees of "all my negroes," she is entitled to a share, as directed by the will, as if those two negroes had never belonged to the testator, and she is not compelled to bring their value into the fund to be divided, before she shall share.
Secondly. The testator gave the slave Dan to Alvana Morris, with the executory devise over to others, on the event of her dying before she arrived at twenty-one years of age. But all the hires of the said slave, during her life, go to her absolutely. These hires are not confined to so much as may be necessary to her raising, clothing and education. Those words in the will are only directory to the executor, how the testator wished the hires of Dan to be applied. He could not expect that there would be a surplus of hires after these objects had been accomplished. But he has declared in his will, that if Alvana Morris should die before her age of twenty-one, then the said negro boy Dan to go back and be sold by my executor, and the proceeds to be divided equally among G. W. Guilford, and others. No part of the hires, to arise during the life of Alvana Morris, are directed by the testator to accumulate upon any event whatever, and go over to the contingent legatees. The guardian of A. Morris is therefore entitled to all the hires of the slave Dan.
Thirdly. Some of the defendants have offered evidence dehors the will, tending to prove that the testator intended, (171) when he made the deed of gift of the two slaves to Elizabeth Langly, to alter his will, and charge her with the value of the same, in the division of the legacy of his negroes after his death. But that, if established, can not affect the construction of the will; for, if the gift of the negroes would not be a satisfaction or ademption of the legacy to her of a share of the negroes, an intention tomake a new will, and therein make her legacy so much less, can not diminish the legacy left to her in the present will.
PER CURIAM. DECREED ACCORDINGLY. *Page 132