
    Mayo v. Carrington.
    [November, 1791.]
    (2 Am. Dec. 580.]
    Will — Construction—Residuary Devise — Case at Bar.— • A testator, before tlie year 1782, devised tbat bis executors should petition the legislature to emancipate his slaves; but if they should not be able to efflectit, he devised part of the slaves to A., and the rest of them, and all his other property, to certain relations: this was an absolute disposition of th’e residuum, and not a devise upon a contingency.
    Same — Same—“Ail His Other Property.” — The devise comprehended lands as well as personalty: for the mention of slaves did not restrict the bequest.
    Same — Same—Same.—The words, all his other property,, carried a fee in the lands.
    . William Mayo, as heir at law of Joseph Mayo, brought ejectment against Paul Car-rington and others, for a tract of land in Mecklenburg county; and, by a case agreed, it appeared, that the said Joseph Mayo, by ■his will, made the 27th of May, 1780, and proved th.e 10th of October, 1785, after ■ sundry specific devises of lands and chattels, proceeded *as follows, “It ■' is my most earnest request, that the gentlemen who shall- be named and appointed executors of this my last will, petition the general assembly for leave to set free all and every one of the slaves of which I may die possessed, on account of .their services to me whilst alive, and I entreat my said executors to leave nothing undone which may be requisite for obtaining the. manumission of the said slaves of which I may die possessed. But provide it shall not be in the power- of my said executors to get this act of humanity effected, (i. e.- to get the slaves of which I may die possessed set at liberty,) on that condition and no other, I give and dispose of the said slaves and my other property, which may remain after discharging the above legacies and devises, in the manner following, viz. I give and bequeath to John Tabb, esquire, ■of Amelia, and his heirs, forever, my two mulattoe women called Maria and Suckey, and my mulattoe waiting boy Bob. All the residue of mj1-slaves and other property, remaining after the discharge of the above legacies and devises, I give to be equally divided between the sons of Joseph Mayo of the county of Powhatan, the sons of William Mayo of Powhatan county, (son of Daniel,) and Paul, George, Joseph, Nathaniel and Mayo Carrington, sons of colonel George Carrington, sen’r of Cumberland county, the same to be to them and their heirs, forever. And I hereby appoint executors .of this my last will and testament, George Carrington, sen’r, Paul Carrington, William Mayo, son of John, and Miles Selden, esquires.” That the said George Carring-ton, sen’r, one of the executors named in the said will, having died without qualifying, the said Paul Carrington, William Mayo, son of John, and Miles Selden, the .survivors, renounced the executorship; and .thereupon, the-said Paul Carrington, Miles Selden- and Joseph Carrington, took administration on the testator’s estate; and sold the personalty, (except the slaves and specific bequests,) and applied the proceeds towards payment of his debts. That the said personal estate, not specifically devised, *was considerable, but was exhausted by the debts. That the administrators hired the slaves, and applied the profits to pay the unsatisfied creditors, and to maintain such of them as were helpless and infirm, leaving a surplus. That, in October 1787, the administrators procured an act of assembly for emancipating the slaves; which was carried into effect by a decree of the high court of chancery in November 1789. That the tract of land in the declaration mentioned, and another tract in Cumberland, (not specifically devised,) were the most profitable parts of the testator’s estate. That the testator owned three other tracts of land, to wit, one of 3000, and two others of 500' acres each. That the plaintiff, who- is the heir at law of the testator, is" the same William Mayo, son of Daniel, mentioned in the will: and that the defendants are the residuary legatees of the testator. The general court gave judgment in favour of the defendants; and the plaintiff appealed to the court of appeals.
    It was contended on the part of the plaintiff, 1. That the whole of the residuary devise was contingent, and depended upon the failure of the attempt to emancipate the slaves; for, if that succeeded, there 'was no devise of the residuum. 2. That, if the whole devise was not contingent, nothing but the personalty passed, as the slaves, being part of the devise, denoted that chattels only were meant. 3. That, if the lands were comprehended in the devise, no more than a life estate passed as to them.
    ' On the part of the defendants it was insisted, that the contingency was confined to the slaves only, and that the rest of the devise was absolute. That the whole undevised surplus passed, as the terms of the will were broard enough to include it. That the word property was equivalent to the word estate; and that the latter had frequently been held sufficient to pass the fee.
    Cur. adv. vult.
   *PENDLETON, President,

delivered the resolution of the court as follows:

The testator having made several specific devises, and being about to bestow the rest of his property, there was one species of it which he wished to exempt from the general disposition he intended to make of the residuum, namely, his slaves; whom he desired to manumit. .But as the law did not, at that time, permit emancipation, and it was uncertain whether application, for that purpose, to the legislature, would be successful, there was a necessity for some provision in case the effort should be disappointed. Accordingly, he directed that his executors should endeavour to procure an act of emancipation from the legislature ; but if the attempt failed, a specific bequest of part of the slaves was made, and the rest delivered to the same legatees to whom he gave the general residuum.

In this view of the subject it would seem to be unimportant with respect to the disposition of the surplus, whether the slaves were ever emancipated or n.ot, as they were not to lead, but to follow, the devise of the residuum.

It was said, however, that the contingency ran through the whole devise, and that the bequest was to depend upon the issue of the attempt to manumit the slaves: so that, if that failed, the residuum, of which the slaves were to be part, was to be divided among the residuary devisees; but, if it succeeded, no disposition of the residuum was made: And, therefore, as'the latter event had taken place, that the whole of the undevised lands descended upon the appellant as heir at law to the testator.

That view of the case, however, the court thinks is not sustainable. For no reason can be assigned, why the testator should leave the surplus entirely undisposed of, unless the attempt to manumit the slaves should fail. On the contrary, the residuary devisees were favourite relations, and he could have had no motive to disappoint them as to the whole subject, merely because the slaves might not, in event, belong to it. His primary object was to bestow the residuum; *and, whether the slaves would take the same course, was a secondary consideration with him. Accordingly, the bequest, as to them, is not so much a devise of the' property as of the possibility; part of which, if the emancipation failed, was to go to Mr. Tabb, and the rest to the residuary legatees, along with the general surplus.

What was said about the contingency, therefore, may be thrown out of the case: and then the question is, Whether all the residuum, both real and personal, passed by the devise?

The word property, we think, comprehends every thing that had not been disposed of. For, generally speaking, it is just as applicable to lands as to personalty; and there is nothing, in this will, to confine it to the personal estate. Including the slaves in the devise has not that effect. For it is not a bequest of the residue of the property followed with an enumeration of personal articles only; but the parts of the devise are kept separate and distinct, the slaves being mentioned first, and the other property afterwards : thus leaving the word property unrestrained, and to operate, according to the usual sense of the term.

It is equally clear that the whole interest in the lands passed. For that is the natural import of the word property; which is, at least, as comprehensive as the terms “all my estate;” “all my worldly substance;” or “all my real effects:” And each of these has been held to carry a fee. Cowp. 299, 355. But the case of Huxtep v. Brooman, 1 Bro. Ch. C. 437, is perhaps stronger. There the devise was, “I give and bequeath to Mary, daughter of Mary I-Iuxtep, and likewise to the son and daughter of Susan Topley, all the overplus of my money; and likewise beg of my executor, that he will pay, into the hands of the above children’s friends, all the money that is due to me on settling my father’s account. I give and bequeath, to them, all I am worth, except £2Q, which I give to my executor, Mr. Thomas Brooman.” The testator was entitled to a share, with his brothers, in a gavelkind estate which had ^descended from his father: And it was held by the lord chancellor, that the terms “all I am worth,” without other words to control them, passed the real as well as the personal estate.

That case contained a mixture of real and personal estate, and is very like the present, as the words “all I am worth,” are not more comprehensive than the words “all'my other property.”

The court is therefore unanimously of opinion that the judgment should be affirmed. 
      See Read v. Payne, 3 Call 225.
     