
    
      George J. Myers, ex'or. vs. Mary H. Anderson et al.
    
    Where testator, by his will, gave certain slaves to his son, “so long as he may or does live,” and after his death to be equally divided between his two daughters “during their natural lives,” and after their deaths “to be the absolute property of. the issue of their bodies for ever,” the Court held, that after the death of the son, the daughters took only a life estate, and that upon their deaths, respectively, their issue took as purchasers.
    All the authorities agree, that if the limitation be to the heirs of the body, or issue, and to their heirs, this constitutes them purchasersas it shows an intention to give them an estate, not inheritable from the first taker, but an original estate, inheritable from themselves as a new stock of descent.
    If the estate limited to heirs of tire body or issue, be of a quality, or be given to be enjoyed in a way incompatible with the idea that they are to hold it in indefinite succession, (as if itbe given to them as tenants in common, or to be equally divided between them,) this takes it out of the rule in S/ieBy’s case; and the immediate heirs, or issue, take as purchasers.
    
      Before Johnston, Ch. at Marion, February, 1847.
    Johnston, Ch. This is a bill filed by the ex’or of Silas Anderson, who died in March, 1845, for the settlement of certain questions hereafter to be stated.
    The testator’s will bears date the third of October, 1844, in which, by way of providing for an afflicted and idiotic son, he bequeaths as follows :
    “Thirdly, I give and bequeath unto my son, Robert Lewis Anderson, the following negroes, viz: Nell and her children, Ben, Chap, Hannah, Jane, Daphne, Willis, Joe, Lofty, Stepney, and Bruerton, which several negroes I give and bequeath unto my said son, (Robt. L. Anderson,) so long as he may or does live. And after his death, I will and bequeath the said Nell and her children, (which she now hath, as before'named, or which she may hereafter have,) to be equally divided between my two daughters, Mary E. Brown and Margaret S. Brooks, during their natural lives, and after the death of the said Mary E. Brown and Margaret S. Brooks, to be the absolute property of the issue of their bodies, forever. And I do hereby appoint my beloved wife, Mary H. Anderson, the sole manager of my said son, Robert L. Anderson, and to keep the said Robert L. Anderson, and the said negroes, Nell and her children, so long as she, my beloved wife, may or does live.”'
    Mary E. Brown died about a month after the testator, leaving a husband, (who administered to her,) and five children, which husband and children are defendants in the case.
    Then about two months thereafter, the said Robert L. Anderson, (the afflicted son of the testator,) also died.
    No assent to the legacy of said slaves had been given by the executor, who had not as yet fully possessed himself of the assets of his testator, nor ascertained his debts.
    The following claims are set up, and to be admdicated in this suit:
    1. Mary H. Anderson, testator’s widow,claims the negroes for the term of her life.
    2. Margaret S. Brooks, and the administrator of Mary E. Brown, contend that by the terms of the will, an absolute title to said negroes vested in the said Margaret S. and Mary E., upon the death of Robert L. Anderson.
    3. The children of Mary E. Brown contend that they took as purchasers upon the death of their mother.
    1. The claim of Mary H. Anderson, the widow, appears to me to rest upon very slight foundation The words of the testator imply a mere intention to give her the custody of her son and his negroes to manage them for his advantage, without conferring any beneficial interest on her.. And this is more satisfactorily shewn by the fact that, in other clauses of the will, she is amply provided for by the gift of ten slaves; and a life estate in “ all my (testator’s) possessions of land.”
    2 and 3. There is great doubt respecting the legal interpretation of the will, as it relates to the quantity of interest-vested in Mrs. Brooks and Mrs. Brown. It is contended that upon the death of the first life-tenant, (Robert L. Anderson,) they took between them an absolute title to the property in question, by way of vested remainder.
    
      There is no doubt that the bequest to them is a good vested remainder; the only question is as to the quantity of interest given to them by the will.
    If obliged by the rules of law to extend in perpetuity the interest of these legatees, which is expressly given for life, and to declare that the interest which is given to their issue expressly “tobe their absolute property,” is no interest at all; —that the absolute property is not in the issue to whom it is given, but in the mother, to whom it is not given, but on the contrary expressly withheld: if I am obliged by the rule in Shelly’s case to do this, I shall feel that I am sacrificing the intention of the testator, as to which there can be no mistake.
    The argument here has not given me the opportunity to judge whether I am compelled by the authorities to go so far, and as, whatever may be my decision, the case will go up to the Court of Appeals, I shall conform my decree to the manifest intention of the testator, and declare that Mary E. Brown and Margaret S. Brooks take only a life estate, and that upon their deaths, respectively, their issue take as purchasers.
    It is ordered, that a writ of partition do issue, to divide the .said slaves with their increase into two equal shares, one of which is to be allotted to Margaret S. Brooks for life, with remainder over to the issue she may leave living at her death, -and the other to be equally divided among the children of Mary E. Brown.
    The costs to be paid out of testator’s estate.
    The defendants, Brooks and Brown, appealed from this de'Cree, on the ground that the limitation to the issue of Mary E. Brown and Margaret S. Brooks is void, and that on the death of Robt. L. Anderson, they took an absolute estate in the ne,groes bequeathed to them.
    G. W. & J. Dargan, for the motion.
    M’Iver, contra.
    
   Johnston, Ch.

delivered the opinion of the Court.

All the authorities agree, that if the limitation be to the heirs of the body, or issue, and to their heirs, this constitutes them purchasers; as it shows an intention to give them an estate, not inheritable from the first taker, but an original estate, inheritable from themselves as a new stock of descent. (4 Kent’s Com. 221.) The authorities also agree, that if the estate limited to heirs of the body, or issue, be of a quality, or be given to be enjoyed in a way incompatible with the idea that they are to hold it in indefinite succession, (as if it be given to them as tenants in common, or to be equally divided between them:) — this takes it out of the rule in Shelly’s case; and the immediate heirs, or issue, take as purchasers. (4 Kent’s Com. 221, 229, 230.) It appears to the Court, that the testator in this case, by the gift to the issue, not only of the property, or slaves, but of the absolute property in them, (a term importing the quantity of interest intended to be given) — has as affectually given them the fee, (so to speak,) as if the bequest had been to the issue and their heirs ; and that the gift of the absolute property, ox fee, rebuts the idea that he intended it to go in an indefinite succession.

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin, Ch. Caldwell, Ch. and Harper, Ch. concurred.

Decree affirmed.  