
    
      Thomas Dawson, Executor, vs. Richard P. Dawson and others.
    
    D. disposed of all his estate by will, and afterwards, by deed, gave all his real and personal property to “ my narnd children in my will, and I do acknolege (this day to be them and no others then those that .are narnd in my will, and the use ther in menshend.” This was a gift, irrevocable, of all that was covered by the will at the date .of the deed ; that is, of the whole estate, as then existing.
    It was a gift, in presentí, to take effect at the grantor’s death ; but, in the mean time, a trust resulted to the grantor for his life. Therefore, after-acquired property, if purchased with the piofits accruing after the <late of the deed, belonged to the grantor; but otherwise, if paid for out of the corpus.
    
    The will, referred to by the deed, was thereby fixed and rendered .irrevocable, so far as it became a part of the deed; but, as to the after-acquired property, its ^energy and revocability as a will were not affected.
    Bequests were made to children, provided that those, to whom negroes had .been advanced, “will bring forward such negro or negroes, with their issue, or .increase, tp the division, to be justly valued as their, or part of their respective and equitable portions of the whole.” Negroes so advanced, and since dead .without increase, are not to be accounted for: those sold by the legatee, so that, by his own act, it is unknown whether they are dead or alive, will be presumed alive, and rated at their probable value at the time of the division. The same of those sold by the sheriff.
    This case is bat a continuation of that of Dawson vs. Daw? .son, reported in Rice’s Eq. R. 243, to which the reader is referred. In obedience to the orders of the Court, as there star .ted, the Commissioner made a report, to which exception was taken by both parties. All the facts material to the points in this appeal are stated in the following decree of his Honor, Ch. Johnston, January, 1840.
    For the general history of the case I will refer to the decree ..of Chancellor Johnston, which was affirmed in the Co.urt of Appeals, at January term, 1839. The case comes up now on .exceptions to the report of the Commissioner, aüd I shall have occasion to refer more particularly to the facts connected with tthem. the other children of his father, Richard Dawson, the son of the testator, were illegitimate, and not entitled to share with him the legacy bequeathed to their father, who survived the testator, nor in the undevised estate.
    
      The defendant, Richard P. Dawson, excepts to the report, -on the ground, that the Commissioner rejected evidence, that
    
      There is no question about the legitimacy of the defendant, Richard P. Dawson ; but his father had three other children, whose legitimacy was seriously questioned on the original trial, and the Chancellor remarks, that he was “ happy that the painful inquiry into the legitimacy of the three younger children of Richard Dawson, Jun., was not pressed. They will, therefore, be considered lawful children in after proceedings of the cause.”
    In support of this exception, it was stated at the bar, that the Chancellor was mistaken in supposing that Richard P. Dawson conceded the legitimacy of the younger children. However that may be, I think the evidence was properly rejected. The decree was imperative on the Commissioner, and if, as stated, there was a mistake, I suppose the correct mode of putting the matter right would be by petition to open the decree and let in the evidence.
    Samuel Dawson, another defendant, excepts to the report, on three grounds. 1st. That the Commissioner has reported that the negroes acquired after the date of the deed, as well as ¡the residue of his estate, passed by the codicil.
    By referring to the decree of Chancellor Johnston, it will be seen that on the 2d of May, 1820, the testator made and executed a last will and testament, by which he bequeathed specific legacies to all his children, of unequal values; and that on the 3d of June, 1821, he also executed a deed, which, in its legal efife.ct, gives to the children namd in his will, all his re,al and personal estate ; in which deed the following language is used, viz: “ And I do acknolege this day to be them and no others then those that are named in my will and the use itherin menshend.” On the 9th of August, 1836, he formally executed a codicil to his will, in which he made a very different disposition of his estate from that expressed in the will, especially in revoking large legacies provided for his sons, John and Richard, and their children; and after giving various specific legacies to his other children, and grand-children, the following clauses occur in the order in which they will be recited, viz:
    1. “ The residue of the property real and personal, devised and bequeathed, by my will aforesaid, to my sons John and Richard, and their children, not disposed of by this codicil, I give, devise and bequeath as follows:
    2. “ To my sons Thomas and Josiah, I give, devise and bequeath, the whole of the real estate, share and share alike, to them and their heirs forever.
    3. “To my said sons, Thomas and Josiah, and my daughter, Rebecca Ann M‘Kenzie, (formerly Dawson,) I give and bequeath the personal property, share and share alike, to them and their heirs forever.” Besides these there is no residuary clause in the codicil.
    Between the execution of the original will and the execution of the deed, the testator acquired some slaves, and be-tweenthe execution of the deed and his death, thirty-nine others; and two questions arise under this exception: 1st. whether the property acquired between the execution of the will and deed passed under the deed. And 2d. if not, whether that, and the property subsequently acquired, passed under the codicil; or whether, with respect to it, the testator died intestate.
    The decree of Chancellor Johnston is referred to as concluding these questions: but on referring to it there can, I think, be no question, that they are expressly reserved. I shall, therefore, consider them open. The judgment of the Court was, that the deed attached upon the will, so as to render it no longer revocable, and took effect in presentí. It could not, therefore, operate prospectively. One might, it is true, covenant on sufficient consideration, for the disposition of property to be subsequently acquired; but there is no such covenant in this deed. On the contrary, he acknowledges the property, “ this day to be them,” excluding the idea of its referring to a subsequent period. It is clear, therefore, that the property acquired after the execution of the deed, did not pass under it.
    The testator had given to his son-in-law, Samuel Maivin, seven negroes, and after the death of his daughter, (the wife of Marvin,) he took them back, contending that they were a loan. Marvin brought trover against him, and on the 17th April, 1821, recovered the value of the negroes, which the testator paid on the 20th of the same month; both being between the execution of the will and the deed. Six of the negroes and their issue are in possession of the executor; and the Commissioner has placed them in the list of negroes that passed by the deed.
    The verdict in the action of trover is conclusive that the property in the negroes was in Marvin. The verdict and satisfaction vested the property in the testator, and these being between the execution of the will and the deed, they fall into the class of property subsequently acquired, and are subject to the same rule.
    The other question is one of more difficulty. The terms, “ all my real estate, and all my personal property, and goods, and chattels,” used in the will, are certainly broad enough to cover any thing that he then possessed ; but it is given to the children named in the will, whose legacies are unequal. The will contained no general residuary clause. Besides, the gift is to the uses mentioned in the will, and the will contains no declaration of the uses of property subsequently to be acquired. The deed cannot, therefore, act upon it. The uncertainty as to the division of it, or the uses for which it was granted, are conclusive objections against it. The testator died intestate, therefore, as to all the property acquired after the execution of the original will. It does not pass under the codicil, for the clauses number two and three, although, when taken alone, they have the effect of general residuary clauses, so obviously refer to the property bequeathed in the will to his sons, John and Richard, that no argument could illustrate it. A different construction would operate as a revocation oí all the specific legacies.
    The second exception in behalf of Samuel Dawson, is, in substance, that the after acquired property ought to be charged with $4,800, which the testator is supposed to have had in his possession at the time he made the deed, and invested in the property; but there is nothing in this. There is nothing in the deed, or the will, which proposes to dispose of money.
    His third exception is that the complainant has not been required to account for the stock, and other perishable property, which the testator possessed at the time he made the deed.
    This involves the principle considered under the first exception, and must be governed by it. The complainant must account for this property as part of the undevised estate, as there is no disposition of it in the will.
    The complainant has also excepted to the report, 1st, because the commissioner has fixed the value of the advances to Richard Dawson, at the prices at which his negroes were sold in 1824 and 1828, instead of estimating them at their present value. 2nd. Because the commissioner has not charged the legatees with the value of negroes, advanced to them, who have died.
    The testator had, before the execution of his will, given, or as he has expressed it in his will, loaned to his children, ne-groes, in various numbers, and amongst them, ten to his son Richard, who sold one of them, who has been removed to ■ parts unknown. The rest were sold at sheriffs sale as his property, and most of them were purchased by the testator himself. Of those loaned to his other children, some have since died.
    In the 6th clause of his will, the testator gives to his sons Richard, Thomas, and John, and his three daughters, Jane, Providence, and Rebecca, all his personal property, negroes, horses, cattle, sheep, hogs, &c., share and share alike, “ pro- “ vided that those of the above named children, to whoml have “ loaned, or may hereafter loan, a negro or negroes, will bring “ forward such negro or negroes, with their issue or increase, “ to the division, to be justly valued as their, or part of their, “ respective and equitable portions of the whole.” And the questions propounded in the exceptions arise out of these circumstances.
    That the testator intended that the division of the property bequeathed, should be made with reference to the value of the negroes loaned, at the time of the division, is too obvious to admit of a doubt: they are required to be *• brought forward to the division, with their increase, to be justly valued,” and according to thé letter of the will, an ingenious mind might possibly raise a question, whether the neglect of the-legatee to bring forward those that are alive, does not deprive him of the right to participate in the division : but that is, perhaps, too narrow a view of the matter. It follows, how-ever, that the legatees are not bound to account for the value of those that are dead. The principal difficulty arises out of those that were loaned to Richard Dawson. It is not known where the negro which he sold is, or whether she is dead or alive, and it is, perhaps, his own fault, or necessities, that it is now impossible to ascertain her value with certainty. In this state of things, it ought.to be presumed against him, that the-negro is alive, and something like her present value may he’ ascertained by her age or description. The others are in the country, ¿nd there will be no difficulty in ascertaining their present value.
    In regard to those sold by the sheriff, it is urged that he ought only to account for the prices at which they were sold, particularly those purchased by the testator. If the negroes were sold for less than their value, the usual consequence of a sheriff’s sale, or if they have increased in number or value, as I infer from the exception, it is apparent that this rule would operate injuriously to the other legatees; as it would diminish their interest in the legacy, by the amount of the difference between the sales and the present value. The testator, as before shewn, clearly contemplated the present value, and that the negroes are not now the legatees’, is the result of his own imprudence, or misfortune ; and that ought not to be visited on the other legatees. I can make no distinction between those purchased by the testator, and strangers. In either case the effect is the same.
    The complainant’s second exception is, that the commissioner has placed the negroes acquired between the date oí the will and deed, among those that pass by the deed. This question has been already disposed of. The negroes must follow the same rule as the other thirty-nine acquired after making the will, and be distributed, as in case of intestacy.
    It is ordered and decreed accordingly.
    This decree was appealed from by all the parties.
   Curia, per

Johnston, Ch.

On the former appeal in this case, it was settled, in conformity with the circuit decree, then examined, that Mr. Dawson conveyed of his real and personal estate, in possession at the date thereof, to the trustees therein named, to the uses of the will of 1820, being the particular will to which the deed referred. That the trusts declared were those in that will particularly specified ; and not those which the grantor might afterwards declare in any other last will.

That as the instrument referred to was a will, the trusts were evidently intended to take effect in enjoyment, on the grantor’s death; and, that as none were declared, in the mean time a trust resulted to the grantor himself, during his own life. There are some expressions of the circuit decree, affirmed on that occasion, which have been misunderstood. (See Rice Eq. Rep. 259.) The Court, in those expressions, did not intend to deny that a grantor might convey to a trustee, to hold according to trusts, to be afterwards declared by him, either by deed or by will, though the phraseology employed is quite susceptible of that construction; and, indeed, upon re-examining them, that seems to be the most obvious sense of the Chancellor’s remarks. The meaning, however, intended to be conveyed, was, that as the grantor, by his deed, made a present gift, through the intervention of a trustee, to such of his children already “ named” in an existing will, according to the uses “ therein” particularly '• described” and “ gave up all,” he could not be supposed to have entertained an impression that there remained with him a power to make after-wards, either by deed or by will, any other declaration of trust inconsistent with that then made. A recurrence to what was decided on the former appeal will enable us to dispose of the questions brought before us now. The deed conveyed the property. It conveyed all the property, real and personal, then held by the grantor, and of course, included that which he acquired between the date of the will and that of the deed.

The trusts in favor of the children were vested, but were to be enjoyed at the grantor’s death.

The intermediate interests resulted to the grantor himself, and entitled him to all the profits which accrued during his life.

If, therefore, the after acquired property was purchased with those profits, it was his own exclusive property; but, if purchased with the corpus of the trust estate, it belonged to the children named in the will at his death. It has been supposed that the will lost its character and energy by the reference to it in the deed, and became a deed itself and incapable of disposing of property acquired by Mr. Dawson after the date of the deed. This is a misconception. Although, in conformity with the language of the cases, it was said the will was incorporated with the deed and lost its ambulatory and revocable character; no more was absolutely meant, than that the reference answered the purpose of borrowing the terms of the will as if they were transcribed into the deed, so as to form part of that instrument, which was of a fixed and irrevocable character. The will, itself, retained its standing, and was as capable of operating upon any property not withdrawn from it by the deed, as it was before, provided it contained (as the will of 1820 did) general provisions capable of receiving and carrying such property. Certainly the deed did not revoke it. The only modification which it underwent was by the codicil, which, so far from being a revocation, was a re-publication of it. The will and codicils, therefore, must operate upon so much of the property acquired after the date of the deed as arose from the profits of the trust estate, and so much as was acquired by an application of the corpus of the trust estate must go under the deed.

With respect to the slaves loaned to Richard, and which were sold, the Court is satisfied that, however hard it may be, he was, by the terms imposed in the sixth clause of the will, bound to bring forward the slaves, and their increase, to be valued at the division, and that they must be set down at their value at the time. The former decree, as to the costs, must stand.

Colcock for the complainants; Petigrv, for the defendants.

The commissioner will be governed by the principles of this decree. The circuit decree now appealed from, is modified according to the same principles.

Harper and Dunkin, Ch., concurred.

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