
    Charles S. N. Newell vs. James Newell et al.
    O. died, leaving various slaves by name to her different children, with certain limitations over ; M. N., one of the childreh and legatees, whose interest on her death without children was limited over, died childless, but disposed of slaves bequeathed to her, by will, to C. S. N.; the remainder-men sued C. S. N. in chancery for the slaves; who set up in his answer that the slaves bequeathed by 0. were not her property ; that they were the property of her husband, W. N., who died in 17S9, directing by his will, that his property, including these slaves, should remain in O.’s possession until their youngest child was thirteen years of age, when it was to be equally divided between his children and his wife; that this will had been burned after its probate; and by common consent of the legatees under it, O. was permitted to remain in possession of the property until her death in 1813 ; shortly previous to which she had made her will, bequeathing the property thus left in her possession to the children of herself and W. N.; her will was similar to that of W. N., except that she named the particular slaves for each legatee, and also made limitations over ; by common consent of the legatees her will was probated, and acted on by the legatees under it, each taking the negroes allotted to them ; on the trial these facts were sworn to by T. N. one of the legatees, and executor of O.’s will, who was a boy 16 or 17 years of age when W. N. died ; whose deposition was taken more than a half century afterwards ; who had executed his mother’s will, permitted his own rights to be barred by it, and who was the father of C. S. N., in whose favor it was attempted to set up the will of W. N.; held, that the evidence was not sufficient to set up the will of W. N., or overthrow that of the mother.
    A will made in South Carolina must be construed according to the laws of that state.
    0. died in South Carolina, and by her will bequeathed to her daughter Mary certain negroes and their offspring during her life, to her and the heirs of her body, and should she die without an heir, her part to go and be divided between all her brothers ; the daughter died unmarried, but by her will left these slaves to a son of one of her brothers: Held by this court, in view of and in accordance with the current of decisions in South Carolina, that the limitation in the will of O. was not too remote — that the brothers of M. N. would take to the exclusion of her legatee; it seems however that the representatives of a deceased brother would not be entitled to any share.
    
      A decree, erroneous in allotting a portion of the property in controversy to one of the complainants, will not be disturbed on that account, unless the other parties complain of it.
    Where a party has slaves in possession to which he supposes himself entitled, but which are decreed to other persons, he will be liable to those who recover them for the reasonable hire of the slaves since they came into his possession; hut should have credit for the support of any of the slaves not worth their maintenance, and for physicians’ bills, if any, to be deducted from the hires.
    Appeal from the decree of the Hon. Robert H. Buckner, chancellor.
    James G. Newell, Charles Newell, Elias Newell and William Newell, as heirs and devisees of Fereby O’Sullivant, deceased, late of South Carolina, filed their bill against Charles S. N. Newell and Thomas N. Newell, claiming title to twenty slaves in the possession of, and claimed by the defendant, Charles S. N. Newell. They allege that Fereby O’Sullivant, possessed of a large number of slaves and other property, published her last will and testament in writing, in which she divided out, and devised her property to and amongst her children, consisting of the complainants, of John Newell, since deceased, of the defendant Thomas Newell and Mary Newell, deceased ; to the latter, she made the following devise : “Item, I give and bequeath to my daughter Mary, a negro wench named Cate, and her child, Mary, also a negro boy named Daniel to her and the heirs of her body, and the said Cate’s offspring during her life, should she die without an heir her part to go to or be divided between all her brothers.”
    After distributing her slaves by name to her children respectively, the will provided, that “ the abovementioned lots of ne-groes were to be appraised to their value by three freeholders, chosen by my (her) executors, and those that have got the most valuable lots of negroes to pay up or make good the deficiency to those that have not; so as to make all and every lot equal to each heir.” The will then made a distribution of the testatrix’s other personal property among her children; appointed her sons, Thomas Newell, John Newell and James Newell, her ex-editors. The will was dated the 10th of February, A. D. 1813, and the testatrix died about that time without having revoked or altered it, leaving her children, Thomas, Charles¡ William, Mary, John, James and Elias Newell, living at the time of her death. On the 29th of April, 1813, the executors proved her will in the ordinary’s office of the state of South Carolina, and in a brotherly spirit without the intervention of the law, impartially meted out to each heir and legatee the bequests, in conjunction with their brothers and sisters, the legatees, and heirs; and each of the brothers and sisters, legatees from that time, held and enjoyed the negroes allotted to each respectively, and their increase by virtue of this division, and that only. John Newell died before Mary Newell. The latter died unmarried and childless ; and was at the time of her death possessed of a large number of the thus bequeathed slaves and their increase; and not regarding the will of their mother, which enjoined a division of the estate of each of her children upon the death of such child without issue, of all the estate and its increase so devised as aforesaid among her children, did before her death, on the 25th of September, 1838, make her will in writing, and thereby bequeathed to the defendant, Charles S. N. Newell, all of her negro property so devised by her mother, and their in-•erease, seventeen in number.
    The will of Mary Newell was probated, and letters of administration with the will annexed granted to Thomas Newell, who, on the 5th day of April, 1841, by the probate court of Jasper county in this state, was discharged from his administration on his producing to the court a receipt in full for all the property mentioned in the will of Mary, from the defendant Charles.
    Thomas Newell got possession of the negroes on the death of Mary, on the 25th September, 1839; and continued the same until the discharge from his son ; since when Charles has had possession.
    The services of said negroes since the death of Mary were worth $1800 per annum. That said negroes were family ne-groes, and of peculiar value. Charges combination and confederacy, &c. The bill prayed that the negroes with their increase, should be equally divided among all the heirs of the said Fereby O’Sullivant, and that defendants should account for their hire since they had had them in possession.
    The answer, of Charles S. N. Newell admitted the will of Fereby O’Sullivant, but denied that the property mentioned in its devises did pass and vest the title in the manner prescribed by the same; because he has been informed in the first place, that the said Fereby O’Sullivant at the time of making the will was a feme covert, her husband being then living; and in the second place, the negroes mentioned did not belong to her, but were the property of the children of her first husband, William Newell, the grandfather of respondent, and father of complainants, and the defendant Thomas Newell and of Mary Newell, deceased; that said William Newell (the elder) did on the 11th day of September, 1789, in the state of South Carolina, having first made his will, by which he directed his property when the youngest of his children should arrive at the age of thirteen years, to be equally divided between his children and his wife; but before that time to be kept together for the support of the family; which will was duly proven and recorded in South Carolina, but together with other records was subsequently destroyed by fire; that respondent was further informed and believed that after the death of the said William, the property remained with the widow until her intermarriage with Charles O’Sullivant, when the executors being apprehensive that O’Sul-livant would waste and destroy the property, made an arrangement with him, by which they paid him for such portion of the estate as he was entitled to in right of his wife; and he went off, and never more had anything to do with the estate. That thereafter the estate remained with the said Fereby O’Sullivant until her death, after which the devisees under the will of the said William Newell, seeing that the will of the said Fereby O’Sullivant directed an equal partition of the property, they divided the estate in the manner pointed out in that will, and in conformity to the will of William Newell; but as the respondent was informed and believed the property mentioned in the will of Fereby O’Sullivant was not claimed by virtue thereof, but by virtue of the will of William Newell, deceased, and of the amicable partition made; that neither Mary Newell, nor any of the other devisees ever at any time by a partition or by any other means, gave up their right or the property of their father, or agreed to take a less estate than the fee in the same, or gave their assent to the limitation of the same to them and the heirs of their bodies, and upon failure of such heirs to their brothers and sister or either of them. But the property upon the partition and division, was taken by each in fee without any limitation whatever.
    The answer was made a cross-bill. On this point, the answer stated further that respondent was advised, even if Mary Newell, under a mistake as to the power of her mother, had taken the negroes under the will of the mother, yet when the facts were ascertained, she would not be bound by the limitations of the will, but would take the property as devisee or dis-tributee of her father.
    That complainants misconstrued the will, even if Fereby O’Sullivant had a right to devise the negroes; the devise to Mary Newell was so framed as to create an estate tail in the negroes devised, if they had been real estate, but being personal property the fee was vested in the first taker; but if this was not so, yet the limitation over was too remote, and void, and the fee was in Mary Newell. John Newell died since the death of Fereby O’Sullivant, but left children who are yet living, and the limitation (if any,) of the negroes in contest, being, in the event of the death of said Mary Newell without issue living at the time of her death, to her brothers, the children of John Newell should be complainants or defendants.
    The other allegations of the bill, were admitted in substance by the answer.
    Thomas Newell demurred to the bill; his demurrer was overruled.
    By leave of the court, complainants filed an amended bill, making the heirs of John Newell, deceased, parties defendant, and offering to yield them an equal claim in the negroes.
    
      Complainants in answer to the cross-bill deny that Fereby O’Sullivant, at the time she made her will, was a married woman. Deny that the negroes in controversy were the property and estate of the children of the said William New-ell. State that they were the property of Fereby O’Sullivant, at the time of her death, and at the time of making her will; and that she had full right and absolute authority to will the same in the manner she did; and deny the allegations of the cross-bill on the subject of William Newell’s will. They state that after their mother’s death they all agreed to take under the provisions of her will; and each took the respective negroes devised to them. That three disinterested sworn commissioners, freeholders, by the consent of all the heirs, were chosen to appraise and value each one’s portion of the slaves devised by the will of their mother. The commissioners did value them, and compensation was given by mutual consent to those whose nogroes were the least valuable, and each one’s portion thus made equal to the others. And the rest of her property, being personalty, was divided out among the •heirs, about the same time, all under her will, and no others. That since then all the heirs continued to hold their respective portions, claiming under the will of their mother; and hearing of no other claim, by or through any other source, until it was set up by said Thomas Newell, of late years, about the time of the death of Mary Newell, with the design of procuring a handsome fortune for his only son, Charles.
    The defendant, Thomas Newell, testifies in his deposition, that the will of the father of the complainants and defendant, Thomas Newell, and of said Mary Newell, and grandfather of the defendant, Charles S. N. Newell, made the same disposition of the negroes devised by their mother, Fereby O’Sullivant, as that made by the will of Fereby O’Sullivant, the mother, except that the father’s will did not name the particular slaves allotted to each. That Mary Newell devised her title to the slaves in controversy, under the wills of both her father and mother. That after his father’s death, the negroes were permitted by the heirs and executors, to remain in the possession of Fereby O’Sullivant, until her death, for the purpose of raising the children, and supporting her. That all the heirs of his father, and his father’s executors, expressed themselves satisfied with the devise and division of the negroes, under the will of the mother, the said Fereby O’Sullivant, and let it rest. The remainder of the deposition sustained the statements of the defendant, Charles S. N. Newell’s answer.
    On final hearing the chancellor decreed in favor of the complainants, and the defendant, Charles, appealed.
    
      Robert Hughes, for appellant.
    1. Thomas Newell was a competent witness. 2 Phil. Ev. (Cow. & Hill’s notes) Part I. n. 81, p. 81; 3 lb. Part II. p. 1520.
    2. His deposition proves conclusively the will and ownership of William Newell, and thus establishes the right in fee of Mary Newell, the defendant’s testatrix.
    3. Even if the mother owned the estate, her will vested an absolute estate; the limitation over was void. 2 Chit. Bl. Com. Part II. 80, n. 18.
    
      William Yerger, on the same side.
    
      John Battaile, for appellees.
    1. The answer of the complainants to the cross-bill of the defendants, being responsive thereto, is evidence; it denies the alleged will of William Newell.
    2. The appellant is estopped by the acts of Mary Newell from denying the ownership of her mother. An estoppel may arise from matter in pais, as entry and acceptance of an estate and the like. 1 Bouvier’s Law Diet. 376; 3 Bl. Com. 308; 2 Stark. Ev. 16, 17; 4 Peters’s R. 83-86 ; 2 Serg. & Rav/le, 508.
    3. Estates tail have never existed, or been known in South Carolina. See 2 Bay’s R. 397; 1 Bailey, 247; 1 McCord’s C. R. 91; 2 lb. 324, 326, 328 ; 4 Kent, 15-17. But though the words “ and the heirs of her body” are used in the bequest, the words “ during her life” are also used, and it by no means follows that this would be construed a fee tail at common law even. It is the uncertainty of the event, and the possibility that the fee may last forever, that renders the estate a fee, and not merely a freehold. All fees liable to be defeated by an executory devise, are determinable fees, and continue descendible inheritances until they are discharged from the determinable quality annexed to them, either by the happening of the event on a release. These qualified or determinable fees are sometimes called base fees,” &c. 4 Kent, 9, 10, 16.
    For distinction between qualified, determinable, or defeasible fees, and conditional fees, at common law, see 4 Kent, 9-11, 16; 2 Bailey’s R. 231; 1 Hill’s (S. C.) C. R. 267, a.
    
    Devises are to be construed as, if possible, to effectuate the entire intention of the testator, if that intention is not opposed to the policy of the law, against perpetuities, and to this all other rules of construction are subordinate. 2 Bailey’s R. (S. C.) 231.
    Whenever there are devises over, a fee simple conditional at common law, will not be implied, if the will is susceptible of any other construction, which will effectuate the intention of the testator. A fee simple, conditional at common law, will never be implied, unless the implication is a direct and necessary inference from the face of the will. Ib.
    Executory devises of personal property in a will, with limitations over, are now held as good, as such devises of real estate. Fearne on Contingent Remainders and Executory Devises, 401, 402, 471, 567, (note III.)
    Indeed, with respect to executory devises of personal estates, the court of chancery will lay hold of any words in the will, to tie up the generality of the expression of dying without issue, and confine it to dying without issue living at the time of the person’s decease. Fearne on Contingent Remainders and Ex-ecutory Devises, 471; 4 Dessaus. Eq. R. 337, 338, 340; 4 Kent, 281, 282, (note b.)
    
    4. The rule in Shelly's Case, that, “ When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 4 Kent, 215. 1 Preston on Estates, 263, does not apply. There can be no freehold estate in personalty. A freehold is an estate of inheritance, or for life in real property. 4 Kent, 23, 24.
    And this rule of construction is more liberally indulged in, in limitations of personalty than realty. 4 Kent, 281-283 (note b.)
    
    There may be a limitation over, by a will, of a chattel interest, after a life estate'in the same. 5 Johns. C. 21, 334, 349 ; 2 Bl. Com. 172, 173; 1 McCord’s C. R. 60, 78.
    An estate may be limited for a life or lives in esse, and twenty-one years, and the ordinary period of gestation thereafter, without .being liable to the objection of creating a perpetuity, for then all the candles are lighted, and are consuming together. 2 Thomas’s Co. Litt. marginal page, 646, top 762 — 766; Cruise’s Dig. 478; 2 Bl. Com. 174, 178; Randel on Per-petuities, 48, 49; Fearne on Con. Rem. and Ex. Dev. 430; 4 Yes. Jr. 227. And this principle applies to devises of personal as well as real property. Fearne on Con. Rem. and Ex. Dev! (Butler’s edition,) 567, (note 3.)
    The following authorities show that the limitations in the will of Fereby O’Sullivant, are not too remote, but good as ex-ecutory devises. Riley’s Ch. Cases, (S. C.)247, 248; 2 Bailey’s R. (S. C.)231; 2 Hill’s C. R. (S. C.) 141; 1 lb. 267; 3 Des-saus. R. 80, 256; 4 lb. 318, 319, 330, 340, 459, 617; 1 lb. 271, 353; Dudley’s E. R. (S. C.) 42, 71; 2 McCord’s C. R. 323; 2 McCord’s R. 75, 104; 1 Call, 338 ; 2 lb. 319; 2 Munf. 479; 5 lb. 242 ; 6 lb. 187, 301; Gilmer’s Ya. R. 194; Tim-berlake v. Graves, 6 Munf.; 1 Stewart’s R. 537; 4 Kent. 281-282; 6 Yerger, 96; 2 T. R. 721; 3 lb. 143; 7 lb. 531' 587, 590; 3 P. Wms. 258; 2 Atkyns, 642, 643 ; 3 Marsh. 289; 4 Monroe, 202 ; 3 Saunders, 288, notes 1 and 8 ; 1 Salk. 225; 10 Johns. R. 12; Prec. in Chan. 528; 1 Johns. R. 439; 3 lb. 292; 11 Tb. 237; 16 lb. 436; 11 Wend. 277; 2 Pirtle’s Dig. 523, 528, 536; Fearne on Con. Rem. and Ex. Dev. 398, 401, 402, 471, 536, 564, note.
    5. The cases of Carroll v. Rennic.k, 7 S. & M. 798, and Kirby v. Calhoun, 8 lb. 462, were cases of deeds; and one was decided under the laws of Tennessee. This is a case of a will, made in South Carolina. And as there is no statute in that state in reference to the subject, it is believed, that the established rule of decision by the courts of that state, upon cases like the present, should govern.
    “ But there is more latitude of construction allowed in the case of wills., in furtherance of the testator’s intention; and the rule seems to have been considered of more absolute control in its application to deeds.” 4 Kent’s Com. 216.
    Mr. Preston says, “ The most strenuous advocates of the rule, must admit, that the intention is to be collected, and if clearly expressed, to be observed.” 1 Preston on Estates, 275.
    In the construction of wills the intention must govern, unless the lauguage of the devise is palpably and unquestionably vio-lative of the rule. 1 Bay’s R. 88, 89 ; 2 Bailey, 231; 1 Riley’s Chan. Cases, 247, 248; 1 Hill’s Chan. R. 156; 1 Preston on Estates, 272 - 275: Fearne on Cont. Rem. and Ex. Dev. 186.
    Mr. Fearne, (Cont. Rem. and Ex. Dev. 186,) says, “The cases as well as principles, tell us, the controlling rule of construction in wills, is the intention expressed, or clearly implied; to contradict this, would indeed be a mockery, a denial of the import of the word will.” And this in reference to the rule in Shelly's Case.
    
    In 2 Hill’s (South Carolina,) Law R. 543, it was decided thatj “Although there is no substantial legal distinction in the construction of the words ‘ dying without issue,’ as applied to real or personal estate, yet the court is not so strictly bound down to an artificial rule of construction in personal as in real estate; and in the former will lay hold of words, to tie up the generality of the expression, ‘dying without issue,’ and confine it to dying without issue, living at the death of the first taker.” Arid “ where negroes were delivered to ‘ a father' for the use of his daughter C. P. and the heirs of her body; but should the said C. P. die without issue to heir the said negroes, then the said ne-groes are to return to the sons of the donor.” Held, that this was not a limitation over on a failure of issue generally, but of a particular class, children of the first taker, capable of taking, and therefore that the limitation was good.” 2 Hill’s (S. C.) Law R. 543; 1 Bailey’s E. R. 48; 4 Kent, 282, note (b.)
    The counsel for appellants relies also, on the case 1 Bay’s R. 453, 454. Where, in a deed made to one for life, and at her death to the heirs of her body; held words of limitation and not of purchase, and vest property in first taker. .
    And on a case in 1 Nott & McCord, 69, where “ A. by will, bequeaths personal property to his daughter B., but in case B. should die without .heirs of her body, then the property to return to his son C. Held, limitation over was too remote, and B. took absolute estate.
    But both of these cases are materially different from the present.
    The following South Carolina cases sustain the construction put upon the devise in this case, by appellees : 2 Hill’s Law R. 328, 543 ; 2 Nott & McCord, 383 ; 1 Riley’s Chan. Cases, 247, 248; 1 Richardson’s Eq. Cases, 78, 141; 1 Bay, 80; 2 M. Cons. R. 91; 2 McCord R. 75; 1 McCord’s C. R. 60; 1 Hill’s C. R. 156, 267; 2 lb. 141; Dudley’s Eq. R. 42, 71; 2 McCord’s C. R. 323; 1 Dessaus. E. R. 271, 353; 3 lb. 80, 256; 4 lb. 318, 330, 340, 459, 617.
   Mr. Justice Clayton,

delivered the opinion of the court.

Two questions are presented by this record, first, whether the property in dispute passed under the will of Fereby O’Sullivant, to the several legatees therein named; secondly, if it did, whether the limitations contained in said will are valid or void.

On the first point, it is insisted, that the property in dispute did not pass by virtue of the will of Mrs. O’Sullivant to Mary Newell, because the property did not belong to the testatrix, but to the children of her first husband, William Newell,'deceased, of whom Mary was one. The answer sets up that the said William Newell died in September, 1789, in the state of South Carolina, having directed by his will that his property should remain in the possession of his wife, till the youngest child became thirteen years of age, and that it should then be equally divided between his children and his wife ; but that this will had after probate been burned and destroyed with the other records of the ordinary’s court. That by common consent of those interested, all the property was permitted to remain in her possession, until her death in 1813, when she assumed the right to dispose of it by her will. That as her will also directed an equal distribution of the property, and pursued the course directed by the will of their father, except that it gave particular slaves to each of the children by name, instead of providing for a general distribution, and except that it also contained ulterior limitations, not contained in the will of their father, the legatees by common consent, determined to execute the will of the mother, which was done. These facts were proven by the deposition of Thomas Newell, the father of Charles S. N. Newell the appellant, who was one of the executors of the will of his mother, and aided in carrying it into effect. Her will was proven in 1813, in South Carolina. The slaves in controversy were bequeathed by that will to Mary Newell, who received and held them until her death in 1838, when she bequeathed them to Charles S. N. Newell the appellant. She died unmarried and without issue. If the first point is in favor of the appellant, it will render a consideration of the second unnecessary.

The only proof on this point, is the deposition of Thomas Newell, the father of the appellant, and the executor of the will of Mrs. O’Sullivant. The father, whose will is set up, died in 1789 — the will has been destroyed, and was not produced. By that will, the property was to remain in possession of the mother, until the youngest child became 13 years of age; this would have been in 1802, if born at the death of the father; or at all events in 1803. The mother in fact retained the possession ten years longer. In 1813 she made a will, and disposed of the property in a mode different from the alleged disposition made by the will of the father. Different in this, that she affected to impose limitations upon the estate,.whilst under his will, each took a fee; she set apart certain slaves to each, his will gave no such direction. The children must then all have been of age; they took the property as set apart to them by the mother’s will, and acquiesced in it. One of the executors, the present witness, carried the will into effect. Not a word was uttered in opposition to it. Each child held the portion thus received without complaint or objection, until the death of Mary Newell in 1838, full a quarter of a century. Then for the first time, the right of Mrs. O’Sullivant to make the disposition is questioned.

We will not say that a case could not be made out after this acquiescence, which would justify a disregard of this will. It is sufficient to say, that the testimony of a single witness, a boy of 16 or 17 years old when his father died, taken more than half a century afterwards, when he had carried the mother’s will into effect, and permitted his own rights to be bound by it, will not avail for such purpose.

This brings us to the consideration of the second question, whether the limitation in the will of Mrs. O’Sullivant is too remote or not. The clause of the will, under which the controversy arises, is as follows: “I give aud bequeath to my daughter, Mary, a negro wench named Cate and her child, Mary, also a negro boy named Daniel, to her and the heirs of her body, and the said Cate’s offspring during her life, should she die without an heir, her part to go to or be divided between all her brothers.”

This controversy must be decided according to the laws of South Carolina. There is a statute of that state abolishing entails, but none which defines the limits of executory devises, or furnishes a rule for their construction. Resort must therefore be had to the decisions of their highest court, for a rule by which to determine this cause.

Their decisions are not free from conflict and confusion. We shall not attempt to go over them all. The earlier cases held limitations to be too remote, which those of a subsequent date sustain, as falling within legitimate bounds. See Guerny v. Vernon, 1 N. & McC. 69, decided in 1818, and Henry v. Felder, 2 McC. Ch. 333, decided in 1827, in which the limitations were held to be void. The terms very nearly resembled those in the case before us. In Cordes v. Ardrian, 1 Hill’s Ch. 154, a limitation scarcely distinguishable from the foregoing was sustained. This decision was made in 1833, and based on two made in 1828. The bequest there was of certain slaves, to the testator’s son, to him and his heirs and assigns forever, and “ should he die without lawful issue, the said negroes shall return to my other surviving children.” The case of Ward v. Waller, 2 Spear, 786, decided in May, 1844, turned ultimately upon another point; namely, that the estate was intended to vest absolutely at a given period, though the general doctrine underwent discussion. Then came the case of Terry v. Brunson, 1 Richardson, 78, decided in December, 1844. The words of the will in that case were, “ I give and bequeath to my daughter Mary, one negro girl, to her and her heirs forever.” In a subsequent clause, it is added, “ if one or more of my children should die without issue, then and in that case, it is my will and desire, that his or her part or parts, should be equally divided between the surviving brethren.” This limitation was held not to be too remote, and that the sister of Mary, who survived her, was entitled to the slave and her increase. No difference is perceived between this case and the present, unless in the use of the word surviving, as indicating the period at which the limitation was to take effect. If in this case, the property is to go to the brothers, the intention is equally manifest, as if the word surviving had been inserted, and if in the one case, the limitation over was valid, it seems to us, it must be equally so in the other.

It must be admitted however, that the point cannot be regarded as free from difficulty. The case of Lemacks v. Glover et al. 1 Richardson, 141, was decided in January, 1845. The words of the will there were, “in case my son James should die under age, or before marriage, I then give and bequeath two negroes to William Walter; the rest and residue of my personal estate, I leave the use of to my sister Jane Glover, and after her death I give and bequeath the same to the heirs of her body, to them and their heirs and assigns forever.” The circuit court decided that the words, “ heirs of the body” in this will were words of purchase. On appeal, the court, consisting of ten judges, was equally divided, and the judgment of the circuit court thus affirmed. It is to be observed, that the words of the will in this case, are distinguishable in some degree from those in Terry v. Brunson, and in the case before us. The decision is the same, but the circumstances are such as to deprive the case of all claim to authority, and perhaps to shake the previous decisions. As however it does not overrule the case of Terry v. Brunson, we feel bound to follow it. No later case in that court has been found.

The cases heretofore decided in this court on this question cannot govern this, because we have to give effect to the law of South Carolina, as in the case of Carroll v. Renich, 7 S. M. 798, we followed the law of Tennessee. In the case of Kirby v. Calhoun, 8 S. & M. 426, which arose in this state, we obeyed our own statute. That statute prescribes a rule at once definite and certain; and the same, which, according to our view, the court of South Carolina in its later decisions, has prescribed for .the construction of wills in that state.

The principle of the decree in the court below is correct, and ■must be affirmed. The representatives of the deceased brother are probably entitled to no share, but as the bill admits their right and the decree in that particular is not complained of, we shall not disturb it. An account of the reasonable hires of the slaves, since they came into the possession of Charles S. N Newell, should be taken in the court below.

The cause must be remanded, that the terms of the decree of the court of .chancery, in regard to the division of the slaves may be carried into effect, and for the purpose of taking the account. The appellant should have credit for the support of any of the slaves not worth their maintenance, and for physician’s bills if any, to be deducted from the hires. The costs of the court below to be paid ratably by the complainants and the defendant Thomas Newell: the costs of this court by the appellant. Decree affirmed.  