
    
      James Rogers vs. Thomas Randall.
    
    1. Testator died leaving three sons, John, William and James, and one daughter. By his will, he gave legacies to each of his other children, and to William, ten negroes, including all their future increase, to him and his heirs forever. In a succeeding clause, he declares, “ It is my will and desire, that if any of my said four children should die before marriage, without leaving lawful issue, then, and in that case, the share of property which I have given to them, or either of them, with all their future increase, is to be equally divided among the surviving part of them, and their heirs forever.” The several legacies were delivered to the children by the executors. William sold a girl to the defendant, who had no notice of the limitations in the will, and made an absolute title with warranty. John and Mary died, and afterwards, William, before marriage and without lawful issue, leaving James sole survivor of the four children. In an action of trover brought by him to recover the value of the property, it was held that the limitation over to the surviving children, was good.
    2.' The jury were bound to find the value and hire; they had'a discretion between the highest and lowest estimates.
    
      Before Wardlaw, J. at Horry, November Term, 1842.
    Trover for a negro woman, Lydia, and her children.
    John Rogers died, leaving three sons, John, William and James, and one daughter, Mary. By his will, dated in 1826, he gave legacies to each of his other children, and to William, ten negroes, including Lydia, and all their future increase, to him and his heirs forever. A succeeding clause is in the following words: “ Item — It is my will and desire, that if any of my said four children should die before marriage, without leaving lawful issue, then, and in that case, the share of property which I have given to them, or either of them, with all their future increase, is to be equally divided among the surviving part of them and their heirs forever.” The executors delivered their several legacies to the children. On the 23d,August, 1832, William, in consideration of $300, executed an absolute title of Lydia, then ten or eleven years old, with warranty, to the defendant, who had no notice of the limitations in the Will. John and Mary died, and on the first of March, 1838, William died, before marriage, and without lawful issue, leaving the plaintiff, James, sole survivor of the four children. In September, 1841, the plaintiff demanded Lydia and her children from the defendant, who refused to deliver them. Lydia had then two children, the oldest of which is now about four years old, and the other about two; a third has been born since the commencement of this suit. The estimates of value varied, the woman’s, at the trial, from $350 to $500; in 1838, from $400 to $600; the two children, from $200 to .$400. The hire of the whole was estimated by some, at $30 a year, and by others, at not more than the cost of good treatment. The presiding Judge overruled a motion for a nonsuit, and instructed the jury, in their estimate of damages, to consider the circumstances which should lead to the adoption of the lowest estimate within the discretion of the jury. The verdict was for plaintiff, $800.
    Defendant appealed, on the following grounds.
    
      First. — That by the true legal construction of the will of John Rogers, William Rogers took an absolute estate in the slaves in question, and that the limitation over, to the testator’s surviving children, was void.
    And for a new trial, on the following ground.
    
      Second. — That as defendant was a bona fide purcháser from- William Rogers, of the slave Lydia, and as there was no evidence of a wrongful conversion, nor of a demand, until 1841, the measure of damages should have been the amount of his said purchase, with interest from the time of the demand.
    Munro, for the motion,
    cited, on the first ground, Bailey Eq. 544; Id. 390; 2 Hill, 291.
    As to the question of damages, he contended that the jury should be limited to the smallest sum.
    
      Harllee, contra,
    cited Fearne, 698; 1 Hill, 154; Bailey’s Eq. 42.
    On the second ground, 2 Hill, 597.
   Ou,ria, per

WardlAw, J.

By the will of his father, William Rogers took, in the negroes bequeathed to him, a fee simple, subject to a ^imitation, by way of executory bequest, to such of his brothers and sisters as might survive him, upon the contingency of his dying without having been married, and without leaving lawful issue; the contingency is, in effect, the same as if it had been only, “ before marriage.” If it had been “ before marriage and without issue,” as it must necessarily have happened, if at all, within the lawful period of limitations, the generality of the expression “ without issue,” would have been restrained by the superaddition of “ before marriage,” which necessarily confined the event to his lifetime, or the instant of his death. In the case before us, even if the “and,” which is omitted by ellipsis, had been supplied by “or,” so that the contingency should read, “die before marriage or without leaving lawful issue,” it would, in effect, have been the same as if it had been merely, “die without leaving lawful issue,” and so, would not have been too remote in reference to personalty.

The jury were bound to find the value and hire; they had a discretion between the highest and lowest estimates. I have, perhaps, too little regarded the circumstances which should have inclined them to the latter, but there is no departure from the prescribed bounds, which would authorize the interference of this court.

The motions are dismissed.

O’Neall, Evans, Richardson, and Butler, JJ. concurred.  