
    JAMES M. DONNELL & AL. vs. JAMES MATEER’S EX’RS.
    A. devised to his daughter, then the wife of one of the plaintiffs, as follows: “ I give to my daughter M. one negro boy H.” and five others by name, “ to wait and serve her life-time, and after her death to her bodily heirs Held that, there being no words in the will to explain “ heirs” to mean children,” the legacy vested absolutely in her, and she dying soon after the death of the testator, went to her husband as her administrator.
    The testator also devised: “ I leave three hundred dollars in the hands of my executors, to pay out to her as they see that she needs, if my estate will afford it.” Held that this devise vested in her an absolute right to the three hundred dollars, and, though sho died a short time after the death of the testator, the legacy went to her husband as her administrator.
    A legacy to a son in law, does not, by virtue of our statute, Rev. Stat. eh. 122, sec 15, when the son-in-law dies in the lifetime of the testator, vest in the child of such son-in-law.
    Where there is a will and an undisposed of residue, in the division of that residue among the next of kin, nothing that has been advanced by the testator, either real or personal, in his iife-time, nor any thing bequeathed in the will, is to be brought into hotchpot.
    
    Cause removed by consent of parties from the Court of Equity of Rockingham County.
    James Mateer made his will on the 4th of April, 1844, and appointed his sons, “ Andrew and John, his executors.” At that time, and at the time of his death, 'which happened in May 1845, the testator had three children, namely, the two sons above mentioned, and a daughter named Margaret, then the wife of Joseph D. Watson. He had also a grand-son, James M. Donnell, one of the plaintiffs, who was the only child of the testator’s deceased daughter, Polly, by her husband Joseph Donnell. This grand-son and the three children, were the testator’s next of kin,
    
      The will contains the following dispositions amongst others: “I give to my daughter Margaret, one negro hoy, Harvey (and five others by name) to wait and serve her life time, and after her death, to her bodily heirs. Also, I leave three hundred dollars, in the hands of my executors to pay out to her as they see that she needs, if my estate will afford it. Item : I give to my son-in-law, Joseph Donnell, twenty-five dollars as a memorial.”
    By other clauses, the testator gave to his grand-sou, James M. Donnell, five negroes specifically, and the sum of $75 ; and to each of his two sons, he gave land, and personal legacies. He also gave legacies■ to his wife, and to several of the children of each of his sons, and of his daughter Margaret. The testator’s wife died before him, as also did Joseph Donnell, and some of the grandchildren, to whom legacies were given.
    The will has no residuary clause, and there are several slaves, and other personal property undisposed of, besides the legacies lapsed, by the deaths of legatees before that of the testator.
    The testator in his iife-time gave and conveyed to his two sons, the land devised to them respectively.
    Shortly after the death of her father, Mrs. Watson also died, leaving an only child, John H. C. Watson, and her husband surviving; and the husband took administration of her estate.
    The bill is filed by Joseph D. Watson, as administrator of his late wife, and'James M. Donnell the grand-son, against the executors and devisees, Andrew and John Mateer, and against John II. O. Watson; and it prays that the plaintiff, Watson, may be declared, entitled to the six slaves, and the $300 left to his intestate, and for the delivery and payment thereof to him ; and that the plaintiff Donnell may have a decree for the legacies to him, and also, for that of $25 to his father, which he claims, as representing his father. It prays also for an account, and distribution of the residue of the personal estate.
    
      Kerr and Iredell, for the plaintiffs.
    
      Morehead, for the defendants.
   Ruffin, C. J.

The pleadings raise several questions; but there seems to be no difficulty in either of them.

That, which is of most consequence to the parties, respects the disposition of the six slaves to Mrs Watson. It is a gift to her for life, and then •' to her bodily heirs.” That has been so often and so recently decided to pass the whole property to the first taker, as to leave, now, no question at all upon it. In Allen v. Pass, 4 Dev. & Bat. 77, there was enough in the will to enable the Court to see that the testator meant “heirs of the body,” for “ children,” and we gladly availed oui’selves of that circumstance, to uphold the disposition and intention of the testator. But there is nothing in the context here, to control the technical meaning of the term, “bodily heirs;” and therefore, we are obliged to receive them in that sense, as meaning that class of persons, who, by law, take property by inheritance or succession from another. Thus understood, they are not words of purchase, but of limitation, in dispositions of this kind, as well as in conveyances of land. The authorities were all consulted in the case of Ham v. Ham, 1 Dev. & Bat. Eq. 598 ; and, in Floyd v. Thompson, 4 Dev. & Bat. 478, the doctrine was re-affirmed, and the reasons given, why the Courts cannot receive such words in any other sense. There have been several other cases to the same effect, and one of them as late as the last term, that of Coon v. Rice, 7 Ired. 217. It must, therefore, be declared, that these slaves belong to the plaintiff Watson, as administrator of his late wife, and not to their son.

The next question respects the sum of $300, left in the hands of the executors, for Mrs. Watson. The executors contend, that it was not an absolute gift to her, but was intended for her personal comfort, if requisite for that purpose, in the opinion of the executors, and that, as she lived but a few days longer than her father, and had no need of any of the money, it sunk into the residuum. But we all think, that the condition annexed to this gift is, that it must be raised without interfering with any other disposition in the will. It is admitted, that may be done, as there is a considerable residue undisposed of, after answering all other purposes. This, then, becomes a gift at all events. The testator intended, perhaps, to entrust the executors with a vague sort of discretion, as to the time of payment, but not with the discretion of withholding the payment altogether. The daughter had an absolute right to demand the whole sum, at some time; and therefore it is a vested, and transmissible legacy, and belongs to the administrator.

The plaintiff, Donnell, claims that the small legacy of $25 to his father did not lapse by the death of the father, but survived to him, by the Act of 1816, and the answer of the executors yields, that the claim is well founded. But that is a mistake ; though being in the matter of law merely, it will not hurt. The act has within its purview a testamentary gift to a child only. Rev. St. c. 122, s. 15. Neither its words nor spirit take in a son-in-Jaw, or daughter-in-law. The reason, why the estate, given to a child, shall, upon the death of the donee in the life of the testator, go to the issue of such child, is, that the issue of the child, is necessarily the issue of the testator, and the Legislature presumed an intention, or, rather, a wish of the testator, that the issue should stand in the place of the original donee, rather than the gift should fail altogether, and that branch of the testator’s family be without a provision. But that cannot apply to a gift to a son-in-law; since that would let in issue by another marriage, strangers to the testator, to whom it cannot be supposed he would intend a bounty. This sum, therefore, is part of the residue.

Finally, the plaintiffs contend, that, in the division of the residue of the personal estate, the gifts in the testator’s life, and by his will, of realty and personalty must be brought in. But the contrary is most firmly settled as law. There is no hotch-pot upon a partial intestacy. The case of Norwood v. Branch, 2 N. C. Rep. 598, went only the length of saying, that upon the particular language in our statutes, there was a distinction between advancements of realty and personalty, and that devises of land must be brought into the division of the undisposed of land. But with respect to a personal residue, it has been always held, that it is to be divided equally amongst the next of kin, without regard to gifts, either in the life time of the testator, or by his will; and, indeed, it has been recently held, that the law is the same as to land not disposed of by the will. Cowper v. Scott, Pr. Wm. 119. Edwards v. Freeman, 2 Pr. Wms. 440. Watson v. Watson, 14 Ves. 318. Johnston v. Johnston, 4 Ired. Eq.9.

Per Curiam.

Decreed accordingly  