
    RICHARD J. MILLSAPS v. ARCHIBALD McLEAN, et al.
    
    Where one, by will,'gave all Ms slaves, equally to be divided among his four children, and afierwards, by deed of gift, gave two of them, by name, to one of his children, there is no rule of law preventing the donee of the two from coming in for an equal share of the residue.
    Where, on a petition for the partition of slaves, the County Court ordered that partition should be made in certain proportions, and appointed commissioners to make it accordingly, and on an appeal to the Superior Court, the order was reversed and the division ordered in different proportions, it was held that the Superior Court was not in possession of the whole case, by the appeal, and that a procedendo to the county court was proper.
    PetitxoN for partition of slaves, heard before Bailev, Judge, at the Pali Term, 1862, of Robeson Superior Court.
    Neill McLean, by. his last will, executed in 1846, gave to his wife, Nancy, her dower in his land, and among other bequests of personal property, he bequeathed to her, as follows : “ also, all my negro slaves, all my crop of corn, cotton, peas and potatoes, during her widow-hood, then, after that, to' Be equally divided between all my heirs. I also, will and bequeath to my two sons, Archibald and Daniel W. McLean, all my lands to be equally divided' between them.”
    Afterwards, to wit, in 1853, after the marriage of his daughter, Mary Aim-, with Eichard J. Millsaps, Neill- McLean, by a deed of gift, duly executed, gave to her,- two slaves, Calvin and Eose, which were of his estate when the above-mentioned will was written ;■ and to her son, Neill- Millsaps, a negro child, named Harriett. S’. J, Millsapps and his wife filed this petition in the county court of Ebbeson, against the above named Archibald and Daniel-McLean,-and another son, Nathaniel, alleging that she, with her three brothers, are the" only children of the testator, and that these petitioners are entitled to certain slaves, (naming them-,) as ten-ants in common, under the will of Neill McLean-:.
    The defendants in their answer to this petition, assert that' in making- the deed of gift, Neill McLean intended to give' lier the enjoyment of the share he designed for her under his will, and they insist that “'if the plaintiffs claim these slaves independently of the will, they will not be allowed their share of the other slaves named in the petition.”' They, therefore, .insist that Calvin and Eose shall be Brought into the common stock, and the division be made of equal shares in tbe whole stock.
    The County- Court gave judgment that the slaves, conveyed in the will'of Neill McLean, should be divided equally between tbe legatees; notwithstanding the conveyance by deed of gift to bis daughter,” and' commissioners were appointed to make the partition according to this decision. The petitioners prayed an appeal' to the Superior Court, and on the hearing of the cause in that Court, Ilis Honor reversed the decision of the County Court,-and ordered that the partition-be made as prayed by the-plaintiffs and a procedendo, from' which the defendants appealed'to-.this Court.'
    
      Shepherd and W. McL Mahay, for peti-fioners.-
    
      Leitoh, for the defendants.-
   PeaRSON, C. J.

We concur with his Honor. The slaves, which the testator had conveyed to his daughter, Mary Ann Millsaps, and her son, Neill Millsaps, did not constitute a part of his estate at the'time of his death, and do not come within the general description given in the will, and, of course, are not subject to partition among the legatees in remainder, after the death or marriage of the widow,

As the slaves are,not embraced in the will, the rule relied on by.the defendants, “one cannot claim under and against a will,” has no application. If these slaves had been named in the will, the point would have been presented. But they are not named, and do not come under the general description : so, the defendants have nothing to" rest their claim on except what they silppose to be a hardship — that Mrs. Mill-saps shall hold two negroes, under the deed of gift, and come in for an equal share of the negroes belonging to the testator at the time of his death. It may bethat Mrs. Millsaps thinks it equally hard that the sons of the testator should take all of his land and come in for an equal part of the slaves. Considerations of this nature are not matter for the Court. Its province is to determine the rights of the parties according to the legal effect of the deed of gift and the will, and that question is almost too plain for discussion.

The matter was presented in another point of view: i. e.s the gift to Mrs. Millsaps was an ademption of her legacy in-respect of the testator’s slaves. We can see no ground on-which'this suggestion can rest. The fact, that the testator does not name the slaves in his will, but gives, in general terms, “all'my negro slaves to my loving wife during her widowhood, then, after that to be equally divided between all my heirs,” is fatal to the suggestion of an ademption,; see the case of Gillis v. Harris, 6 Jones’ Eq. 267.

Shafner v. Fogleman, Busbee 280; Harvey v. Smith, 1 Dev. and Bat. 186; Morehead v. Atl. Railroad, 7 Jones, 500, which were cited and relied on to show errorin that part of the judgment directing & procedendo to the county court, do not sustain the position. The general rule is, “ when the judgment of the-county court >is final, so as to put an end to the case so far as that court is concerned, the superior court, ■having the case in its possession, will dispose ef-it finally, otherwise a jprocedendo will be ordered to the county court. There is this exception, i. e., the -Superior Court will always order a procedendo where the county co’urt has a peculiar jurisdiction — as in regard to the probate of wills and granting letters of administration ; Wallis v. Wallis, (ante 78).

In this case, the judgment of the County Court is not final, •so -as to put an end to the case so far as that Court is concerned, but it is interlocutory; it decides the question of law raised by the petition and answer, against the petitioner and directs a partition in pursuance of that instruction, retaining the case for the coming in of the report of' the commissioners for the final action of the Court. So, according to the general rule, a procedendo ought to have been ordered.

Pee CueiaM, There is no error.  