
    Matthew Bryson, Adm’r cum test. ann. of William Bryson, Sen., vs. George Nickols, and others.
    Testator’s will directs, that after the death of his wife, his negro girl Fan is to be sold, and her proceeds divided among his five eldest children; but if his son Wil- ' liam choose he may keep Fan by paying to each of the said children one hundred dollars. And directs the residue of his estate to be divided among his five younger children: Fan had one child after the execution of the will and before testator’s death, and five after his death, and before the death of the tenant for life: — Held, that the increase of Fan before testator’s death, fell into the residuum: that a specific vested legacy in Fan, to take effect on the death of testator’s wife, was not given either to William, or (on his refusal to take her at the price fixed) to the elder children; but that this was a mere direction to divide the proceeds of Fan’s sale among the elder children, with a privilege to William of taking her at that time at a fixed price; and consequently, that her increase after testator’s death did not belong either to William (if he had elected to take her) or to the elder children,
    ‘ but fell into the residuum, and was divisible among the younger children. [*114] When there is a necessity for an executor or administrator to come into a Court of Equity to obtain its judgment, a counsel fee paid by him will be refunded out of the estate. [*121]
    Laurens. — Before Chancellor Johnston, July, 1834.
    William BrysOn, Sen , died, leaving of force his last will and testament, which contains the following clauses: “ It is further my will that after the death of my wife, that my negro girl Fan, if my son William think proper, is to be sold and the proceeds of her to be equally divided among my sons Matthew, James and Robert, and my daughters, Margaret and Agnes: but if William choose to keep the girl Fan, and not sell her, it is my will that he may, by paying to each of the above-named children one hundred dollars. It is also my will and desire that all the rest of my negroes that are not before named shall remain on the plantation as long as any two of my children shall remain single and live together, and also, all stock of every kind, household and kitchen furniture, and all other things necessary to keep up the plantation. And it is further my desire, and I leave it discretionary with my executors, hereafter- named, that as any of my children mai;ry, that they give them such property and things as they think fit and necessary for them. And it is my will, that as soon as my children be all married or break up living together, that the last-named negroes and stock and all the other property left on the plantation, shall be divided among my son William and my four youngest children; and I do hereby .vest my son William with the power to divide the property between himself and his younger brothers, and two younger sisters, as he may think fit and necessary; only it is my will, that if *any . of the negroes given and named to any one of my children, shail die before this division takes place, it is my desire that the loss be made up to them out of that property, and I give the same to them and their heirs, forever.” William and the widow were appointed executor and executrix, and qualified.
    After the execution of the will and before the testator’s death, the negro woman Fan, named in the first clause of the'will, had one child .named Milly; and after the testator’s death, and before the death of his widow, Jane Bryson, who had a life estate in her, Fan had five other children, all of whom remained in Mrs.' Bryson’s possession until her death.
    William survived his mother, and after the death of both, the plaintiff administered on the testator’s estate with the will annexed, and sold all the negroes.
    This bill was filed against all the parties interested, requiring them to present their claims to the Court, and asking the advice and direction of the Court as to the disposition of the moneys arising from the sale, according to a legal interpretation of the will.
    On the hearing of the cause, evidence was given, from which it seemed that William Bryson, after the death of his mother, refused to take Fan at the price fixed in the will.
    Johnston, Chancellor. I came to a decided opinion on this case, at the hearing, and regret I did not then pass a decretal order on it, and thus have prevented unnecessary delay. The legislature seems, however, to have required that decrees should be accompanied with the reasons of the Court. Intending to give my reasons with the decree, I took time for that purpose; and have, by an unusual and uncontrollable train of circumstances, been prevented from doing so hitherto, and even now must content myself with but an imperfect exposition of those reasons.
    There is no doubt but that the price for which Fan sold, must be divided among the five children o£ the testator, Matthew, James, Robert, Margaret and Agnes. Whether William, jun., did or did *not elect to purchase her, she has been sold by the plaintiff, in his L capacity of executor, and as I understand, the sale is not impeached, nor is there any objection to the 'payment of the proceeds to the persons I have named.
    It is conceded, that the child born of Fan, between the execution of the will and the testator’s death, did not pass with her, but fell into the residuary clause: of course the proceeds of that one are distributable among the residuary legatees, William Bryson, Henry Bryson, Hunter Bryson, and the testator’s two daughters, Jane and Polly.
    The contest is for the proceeds of the children born of Fan after the testator’s death. The five older children claim them under the clause of the will first recited in the bill; the younger children under that last recited ; and the representative of William, jun., claims them exclusively, setting up an election for William.
    I think the older children are not entitled ; that William is not exclusively entitled, whether he elected or not, or whether his representative has or has not a right now to elect him ; but that the younger children, of whom William is one, are among them entitled.
    The claim of the older children, and the exclusive claim of William, both stand upon this assumption, that there was a good specific bequest of Fan, and that, by force of law, carried with her such issue as she had after the testator’s death: That is, that at the testator’s death, Fan became a vested legacy, and a right in her thus settling in the legatee, she was thenceforth the legatee’s property, and her issue being issue of the legatee’s property, belonged also to him.
    In my apprehension, Fan was never bequeathed at all. My construction of the will is simply this: That the testator directed her to be sold, giving William a preference among the purchasers, and in case he bought, fixed the price. There was an obvious propriety in his fixing the price if William should be the purchaser, and neglecting to fix it if she should be exposed to public sale. — William was one of the executors, and if he should not avail himself of his preferable right to purchase, but expose Fan to sale, the biddings would determine the price. But if he chose to purchase himself, and not expose the property to sale, he being one of the executors, unless the testator fixed the price, one could not be fixed. There would be wanting the two minds which the *law requires to meet in a contract. The testator, therefore, chose to offer proposals forming his side of the contract, while yet alive.
    But, although Fan was not bequeathed, but a mere power to sell her was given, still, as the will gives the older children a right to the proceeds — a right which vested in them at the testator’s death, it was plausibly contended that all her after increase enured to the same right. This might prevail, if there was nothing to show that the sale was to extend to Fan, and to Fan only' — that the testator did not intend to include the increase in the sale.
    The sale was to take place at the widow’s death. The testator fixed a price. The subject of sale was Fan. Her value the testator could fix, because he knew her; but if he intended the increase to go with her, he could not have set a price, since he^could neither know whether she would have children, or how many, or the value of any of them. Would it have been tolerated that William should take Fan and a large family of children at five hundred dollars ? Would not every body have exclaimed against this as a gross and corrupt violation of the testator’s intention ? That “ a bargain is a bargain,” is the maxim of unfair dealers; but the law requires, “no bargain is good but a fair one.” Then, what William was to get under his purchase, is a fair measure of the rights of the older children. They have a right to the proceeds of that property, and that only, which he had a right to take at five hundred dollars. He was entitled to take, at five hundred dollars, the same property, neither more nor less, which, if he did not choose to purchase it, he was bound to expose to public sale. He was not bound to expose to public sale any thing which he had not a preferable right'to buy, and that at five hundred dollars. Would it do for the elder children to say by virtue of their interest in the proceeds, “ if William buys, he is only to get Fan, because he gives but five hundred dollars, but if others purchase, the increase shall be included in the sale ?”
    My opinion then is, that the younger children are entitled among them to the proceeds of Fan’s issue, born after the testator’s death.
    The parties may, however, very well have entertained doubts on the proper construction of this will. Therefore, 1 shall direct that the costs be paid rateably out of the three funds arising from the sale of Fan, of her issue in the testator’s life, and of her issue after his death, before those funds are distributed agreeably to this opinion ; *which p*,, * funds must-be accounted for, if required, before the Court. L
    Let the foregoing opinion stand for the decree of the Court.
    An appeal was taken on the part of the testator’s five elder children, and a motion made before this Court to modify the decree of the Chancellor on the grounds :
    1. That Fan is bequeathed to the five elder children, and the increase follows the condition of the mother.
    2. That the younger children having no interest in Fan, can have no right to her increase born after the death of the testator.
    3. That William Bryson, jun., having failed at the proper time to make his election to keep Fan at the price fixed, the right of the elder children became vested, and William’s administrator cannot now set up his right to elect.
    And the executor appeals on the ground : That he should have been allowed for a counsel fee of the estate, for having this case brought before the Court for its adjudication.
    
      Irby and Galdwell, for the appellants.
    
      Young, contra.
   O’Nealu, J.

I agree with the Chancellor, that the negro woman Fan has been properly sold, and that her proceeds are divisible between the testator’s sons, Matthew, James and Robert, and his daughters Margaret and Agnes ; and that the child bom before the testator’s death is a part of his residuary estate, and is divisible under the residuary clause of his will.

I also agree with him that the increase of Fan, born after the testator’s death, but before the death of the tenant for life, constitutes another part of the residuary estate, and must be divided between the residuary legatees.

It is not, as I understand, pretended that William Bryson ever did elect to take Fan at the price or sum limited by the will; but if he had done so, he could not have acquired any right to the increase ; for, at a certain time (the death of the widow) he is allowed to buy Fan, if he chooses, for a given sum. Until he made the purchase by taking the slave and agreeing to pay the price, he could have no vested right in her which would entitle him to the increase.

*1181 *The five elder children, it seems to me, have proceeded under a J mistaken notion that Fan was bequeathed to them at the death of the testator, and the possession postponed until the death of the widow. If this had been so, then their construction of the will would have been right; but she never was bequeathed to them at all; her proceeds, when ■sold, were directed to be paid to them. But, if the bequest of the proceeds of the sale of the slave was equivalent to a bequest of the slave herself, still I think the plaintiffs would not be entitled to more than the specific slave.

■' The words of the clause, under which the five elder children claim, are : “ It is further my will that after the decease of my wife, that my negro girl Fan, if my son William thinks proper, is to be sold, and the proceeds of her to be equally divided among my sons Matthew and ■ James and Robert, and my daughters, Margaret and Agnes, but if William choose to keep the girl Fan, and not sell her, it is iny will that he may, by paying to each of the above-named children, one hundred ■dollars. ”

The first rule in the construction of a will is, that the intention is to have effect, if it can be clearly ascertained from the will and be not contrary to some known rule of law. Here the intention is perfectly clear, that the testator only intended that the specific slave should be sold, and the proceeds divided. This is manifest by his designating her as the negro girl Fan, and by the price which he fixed on her alone.

But, to entitle the elder children to the increase of Fan, the legacy in their favor ought to have given them a vested right in her from the death of the testator, to be enjoyed at the death of the tenant for life. The legacy is, however, purely future and contingent; it is a mere direction by the will that she should, after the death of the testator’s widow, be sold; but this was not even positive and peremptory — it was tp be so “ if my son William think proper if he thought proper he might take her himself, by paying to the elder children one hundred dollars each. These . provisions made the legacy of Fan (if it can be so considered) purely contingent: no one under the will had a fixed right as a legatee to her. She might be sold by William, or he might keep her ; and until the death of the widow, and he had decided which course he would pursue, the will was wholly provisional. “The distinction between vested and contingent legacies is, that a vested legacy, immediately on *1191 death of the testator1, attaches as a debt upon *his real or •J personal estate; whereas a contingent legacy does not attach upon either, until the contingency happens. In the first case, the legacy is debitum in prcesenti, solvendum in futuro ; but where the legacy is merely contingent, not constat, whether under the will the fund will' ever be charged with it.” 2 Bridg. Dig. Tit. Leg. sec. ix. par. 820. This rule applies more particularly to pecuniary legacies, but still its analogy will reach to specific legacies. For the question in both is, whether a present interest passes; if it does not, the legatee cannot have any right until the contingency happens. In this case, so far as the older children are concerned, the legacy before us is pecuniary and contingent: it is pecuniary, because it entitles each one to a share of the proceeds of the slave, in money; it is contingent, because its eventual payment depended upon the life of a slave, as the thing, whereby the fund was to be created. As was said by that eminent lawyer and good citizen, Mr. G-rimke, (whose early death South Carolina will long deplore,) in his argument of Taveau v. Ball, 1 M’C. Ch. Rep. 13 : “If the time of division be not the substance of the gift, it is only matter of regulation.” That applies to cases where there has been a gift to several, and a future time appointed for division — then, if the time of divison be not the substance of the gift, it only operates to regulate the division to be made. But in this case, the rights of the elder children are not to the thing itself, but that the proceeds of the slave, when sold, should be divided among them. The division is, hence, of the substance of the gift; and they can take no interest, until by law, or rather by the will, that division is to be made. The rule, as to the vesting of legacies, is very well stated in Bac. Ab. tit. Leg. E. 2: “ If a legacy be devised to one to be paid or payable at twenty-one, or any other age,” it is vested — the time being annexed to the payment, and not to the legacy itself; “ but if a legacy be devised to one at twenty-one, or when he shall attain the age of twenty-one,” the legacy would not vest until the legatee was of the' age prescribed. The application of this rule to the case before us, shows that the legatees now claiming had no vested right until the death of the widow. Eor it is a bequest to them, “after the decease of my wife.” This is a distinct clause from' that in which he had given her a life estate ; and her death is fixed upon as the commencement -of their interest: and the clauses do not authorize the construction that the estate for life and the remainder constitute together one gift; each is separate and ^distinct, and the testator, after his widow’s death, is to be regarded as then <- making a disposition of the slave.

The case of Swinton v. Legare, 2 M C. C. Rep. 440, is a very clear authority in favor of the view that the elder children did not take a present interest. There the testator devised and bequeathed to his daughter Susannah Swinton, “during life, and after her death to be equally divided among the survivors of her children, to each of them share and, share alike, as they shall attain the age of twenty-one or marriage.” The question was whether all of her children living at the testator’s death, or only those who were alive at her death, would be entitled to take. It was held, that the legacy in remainder did not vest at the testator’s death in all Susannah Swinton’s children; but, at her death, it vested in those then alive. That case turned, it is true, upon the construction of the word “survivors,” but still the case is an authority for my purposes here. For, as Judge Nott in the conclusion of the case said, “being given to her during life, and after her death to be divided among her surviving children, it must necessarily relate only to those who were living at the time of her death.” So here, the bequest being after the death of the testator’s widow, that the slave Fan should be sold, and her proceeds be divided among certain persons, it follows that their rights arise at the death of the testator’s widow, and not before.

The case of Taveau v. Ball, 1 M’C. C. Rep. Í, if it has any application to the case, militates against the purposes for which it was cited. In it the Chancellor says, “the time of the division is not at all connected with the gift. The preceding clause had given these estates, absolutely to the sons, and gave a plain vested interest.” In the case before us, the clause of the will does not give Fan to the elder children absolutely, nor does it give them any plain and vested interest in her. The time of division here is directly connected with the gift; indeed, it depends upon the sale for division. If it had been impossible to make a sale, by the death or worthlessness of the slave, the gift to the elder children would have failed.

The case of Brailsford and wife v. Heyward, 2 Eq. Rep. 18, turned altogether upon the jntention of the testator, and has not the slightest analogy to the case before us.

So far, therefore, I am perfectly satisfied with the Chancellor’s decree; *•, and I have added these remarks, to those contained in his *decree, -* more to satisfy the parties than from any actual necessity requiring it to be done, in order to a correct understanding or decision of the cause.

But I think the Chancellor ought to have directed the counsel fee paid by the plaintiff to be refunded to him, in the same manner in which he directed the costs to be paid. There seems to have been a necessity for the plaintiff to come into the Court of Equity, to obtain its judgment, as to the construction of the testator’s will. The case of Warden v. Burts, 2 M’C. Ch. Rep. Í6, allows the counsel fee as well as the costs, where they have not been the result of the executor’s or administrator’s misconduct.

The Chancellor’s decree is in this respect modified, and in all others affirmed.

Johnson, J., and Harper, J., concurred.  