
    HUGH KIRKPATRICK vs. SAMUEL W. ROGERS & AL.
    A testatrix, by her last will, devised as follows : *Item 2nd. I will and bequeath to my nephew H, K. my negroes M. and N., and also to him my Glass plantation, the proceeds of which are to go to the support of M. and N. during their Uves, aud, at their dealh, it is to became said H. K’s. for his trouble in taking care of said negroes” Held, that the devise was of a present interest in ÍI.K. in the Glas3 plantation, and that the provision, that the proceeds of the land should be applied to the maintenance of these old negroes, was only a discharge of the duty, which the law would have imposed on her estate.
    She, also, in the 6th clause, devised as follows: “I will that my negroes, not otherwise mentioned in this will9 be valued by three disinterested men, at one fifth less than would be considered the rating price of such negroes ; and the negroes have the liberty of choosing their masters, and, if the persons chosen should not be willing to take them at the valuation, that the negroes have the liberty of choosing, until they get one, and Lucy’s family is not to be separated, nor the uegroes to be taken out of the country. The fund of this valuation Is to remain in the hands of my executors, and by them kept on interest, to be annually divided between the negroes so valued, for their own use. As each one of these negroes, so valued, arrives at the age of forty-five, they are to receive from my executors what would be their equal share of the principal; if any of the negroes die, their ■ share is to be given to those living,” #*e. Held, that the direction in the first part of this clause is void for uncertainty.
    She also, in the 8th clause, devised as follows: ‘T will that all the balance of my property, not herein disposed of, be sold by my executors, and, after, my debts are paid, the proceeds of the sale be divided into three divisions ; one third logo to the use of the associated reformed church at Sardis, in Mecklenburg County, North Carolina; one third to be equally divided between my brothers’ and sisters’ children ; the remaining third of the proceeds of the sale to be held by my negroes, A. J. and L. to be subject to the same regulations, as I have laid down in a former clause, relative to the proceeds of the valuation of the said negroes, and to be used in the same way.” Held, 1st. That the legacy to the Associated Reformed Church at Sardis, was good, that congregation having appointed trustees according to law. Held, 2ndly, that the property, attempted to be given to the slaves under this and the 6th clause, pass under the residuary clause, and that the slaves themselves mentioned in this and the 6th clause go to the next of kin.
    
      Held, 3rdly. That the legitimate children ol the brothers and sisters of the testatrix take under this clause, per capita, but one of them, being illegitimate, takes nothing — children being in law considered, prima facie, to mean legitimate childi en. unless it plainly appear from the will that illegitimate children were intended to be included in a bequest.
    The cases of Cunningham v. Cunningham, Con Rep. 353, and Thompson v. McDonald, 2 Dev. and Bat. Eq. 463, cited and approved.
    Cause removed by consent from the Court of Equity of Mecklenburg County, at the Spring Term 1848.
    Anna Boyce, by her last will and testament, devised as follows ; “Item the 2d. I will and bequeath to my nephew, Hugh Kirkpatrick, my negroes, Mose and Nelly, and also to him my Glass plantation, the proceeds of which are logo to ihe support of Mose and Nelly, during their lives, and, at their death it is to become said Hugh Kirkpatrick’s, for his trouble in taking care of said negroes. I also allow the said Mose ahorse called Buck, and a cow and calf, also a plough and harness to work the Glass plantation, and to Mose and Nelly one year’s provisions tobe paid by my executors, and to Nelly all the beds she claims in Iredell as her own, and all the kitchen , furniture she has there.
    6th. I will that my negroes, not otherwise mentioned in this will, be valued by three disinterested men, at one fifth less than would be considered the rating price of such negroes; and the negroes have the liberty of choosing their masters, and, if the persons chosen should not be willing to take them, at valuation, that the negroes have the liberty of choosing until they get one, and Lucy’s family is not to be separated, nor the negroes taken out of the county. The funds of this valuation are to remain in the hands of my executors, and by them kept on interest, to be annually divided between the negroes so valued, for their own use. As each one of these negroes, so valued, arrives at the age of forty-five, they are to receive from my executors, what would be their eqau! share of the principal; if any of the negroes die, their share is to be given to those living. Also I will to my boys Anderson and Jo one bed each, with complete clothing and plain bedstead. All the balance of my beds and furniture, except what may herein be disposed of, I tvill to my negro girl Lucy and her children.
    8th. I will that all the balance of my property, not herein disposed of, be sold by my executors, and, after my debts are paid, the proceeds of the sale be divided into thiee divisions ; one third to go to the use of the Associated Reformed Church at Sardis, in Mecklenburg County, North Carolina : one third to be equally divided between my brothers’ and sisters’ children : the remaining third of the proceeds of the sale to be held by my executors for my negroes Anderson, Jo, Lucy, an l her children, and to be subject to the same regulations, as I have laid down in a foregoing clause relative to the proceeds of the valuation of said negroes; and to be used in the same way.” To this will the plaintiff is executor.
    The bill states, that doubts have arisen as to the true construction of the clauses of the will, wdiich are set out, and prays the advice of the Court upon them — whether under the 2d clause the property, real and personal, passes to him, (he plaintiff, or is void, and sinks into the residuum, whether the provision in the 6th clause is void, and whether under the 8th clause, the legacy to the negroes, if void, passes to the next of kin, and whether the legacy to the Associated Church at Sardis takes the same course. The bill then states, that the deceased had several brothers and two sisters, one of wrhom had several children, and the oilier, one illegitimate child, named Dearmond, wdio has died, since the death of the testatrix, and whose administrator is a,party defendant,and praj’s the instruclion of the Court, whether í)earmond is to be considered a'sister’s child, so as to lake under the will. It further states, that there is, in Mecklenburg, a Church, known as the Reformed Associated Church, at Sardis, and that the defendants, Ely Griffith, Samuel Boyce, James Wal lace and Jesse Erwin, are its regularly appointed trustees — and that the other defendants are the heirs at law, next of kin and residuary legatees of the testatrix.
    The facts set forth in the bill are admitted in the answers — and they all. except that of Che trustees of the Associated Reformed Church at Sardis, allege, that the bequests contained in the 2nd and 6th clauses, and the latter part of the 8th clause, are void and inoperative ; and the next of kin insist, that the portion of the 8th clause, which gives a third of the proceeds of the sale therein directed to the Courch at Sardis, is likewise void, because the Church is not incorporated — and that ail these bequests fall into the residuum. The trustees contend that the bequest to the religious association is not void; as it is capable of taking, and they are its trustees regularly appointed.
    
      Osborne and Wilson, for the plaintiff.
    
      Thompson and Avery, for the defendants.
   Nash, J.

We are of the opinion, that the bequest, contained in the 2nd item, is not void, but, that, under it, the plaintiff takes the Glass plantation, as a present devise in fee, charged with the maintenance of the two old negroes Mose and Nelly, who are also given to him — and that the provision “the proceeds of which are to go to their support,” if not void, is merely directory. By the laws of this State, provision is made, whereby owners of slaves are compelled to furnish every slave, who has become superannuated and unable to work, with the usual allowance of clothing, food and lodging. Rev, Stat. Ch. 89, Sec. 19.

They are not permitted to cast them off in their old • age, when no longer able to work. The ’benevolent testatrix, in this case, was, therefore, not only in theper* formance of a high moral duty, in providing for the future maintainence of these two old and, no doubt, faithful slaves, but she is doing what the law would have compelled her estate to perform.

A-S to the t5th clause, wé are of opinion, that the bequests in it are void, and that a trust resulted, which, under the 8th clause„either passes, as therein directed, or to the next of kin. The first part qf the clause is void for uncertainty. It directs that the slaves, after the valuation therein provided, shall choose their masters — and, if those, whom they shall choose, do not take them, that they may exercise the same privilege again without limit of time. And they are not confined to any particular persons, but have the whole country to select from. If their choice had been limited to the relations of the testatrix or to a certain number of designated persons, as it was a bequest intended for the benefit of such persons, it would have been supported, but it is too indefinite and uncertain. The bequest in the latter part of the 6th clause is void, because of the incapacity of slaves to take. It was certainly not the intention of the testatrix to free her slaves —for she expressly provided for their having masters, by directing a sale of them — and, as slaves, they are incapable of taking any thing devised to them for their maintenance. Cunningham's heirs v. Cunningham, Conf. Rep. 353.

Under the 8th clause is embraced all the property of the deceased, not previously mentioned in the will. The words are “all the-balance of my property not herein disposed oí”’ — now the slaves are not disposed of in the preceding part of the will, and it is therefore contended, they are, embraced in this clause, and pass into the residuum created by it. The proceeds of the sale are directed to be divided into three parts ; one third is given to the Associated Reformed Church at Sardis, in Mecklenburg County — one third to her brothers’ and sisters’ children, and one third to be given in substance to the slaves It cannot therefore be, that they were intended to pass under this clause — they cannot be given to themselves. It is true, that whenever a bequest fails from any cause to take effect,, and there be a general residuary clause, the property, so attempted to be given, will pass into the residuum, but any testamentary disposition of property must have a sensible and reasonable construction put upon it. Every portion then of the property of the testatrix, which could form a portion of that fund, is to be embraced in it, as the property, given to the different slaves in the preceding part of the will ; and which they could take, together with the property not previously mentioned. As to the slaves, the testatrix died intestate, and thej'- pass to the next of kin. The next of kin contend, that as the Associated Reformed Church is not incorporated, they could not hold property, and the bequest to them is void. The Legislature has provided a mode, by which religious societies may hold property without an incorporation. Rev. St. Ch. 99, Sec. 93. The members of this society have availed themselves of the act, and their trustees are parties to this suit, and claim the share bequeathed to them. The bequest is a valid one, and so is the bequest of one third to her brothers’ and sisters’ children, who take it per capita. The gift is to the children, and they all stand in the same degree of relationship to the testatrix 1 Roper on Leg. 120. The parents were all dead at the making of the will. John Dearmond is not entitled to any portion of this legacy. He was the illegitimate child of Jane Kirkpatrick, one of the sisters. The word child or children being, in law, considered, prima facie, to mean, legitimate children. If, therefore, a bequest be to the child of the testator, or to the child of another person, or to one or more of them, and nothing appears from the will, sufficient to show that illegitimate children were intended to be included under the word children, that class of children wiil be excluded. 1 Roper on Leg. 79 Williamson v. Adam, 1st Vez. & R. 465, Thompson and McDonald, 2 Dev. & Bat. Eq. 463. There is nothing in this Will to show, that the testatrix, in using the word children, intended to embrace il« legitimate children. Her language is “my brothers’ and sisters’ children.” If she had had but one sister, who had one child, and brothers, who had children, the language would have been the same.

The bequests to Mose and Nelly and the other negroes are all void, and, except the money from the valuation, the whole of such property is included in the direction for the sale in the Sth clause.

To conclude: the Glass plantation passes under the 2d clause to theplaintiffs. Secondly, the slaves are undisposed of by the will, and, as to them, the testatrix has died intestate. So also, as to the one third of the proceeds of the sale, directed in the 6th clause, both the slaves and that third go to the next of kin, except as herein afterstated.

Thirdly. Under the 6th clause is embraced all the property, belonging to the testatrix, both real and personal, except the slaves and the Glass plantation, and including the personal property', attempted to be given to the sla%Tes, all of which is to be sold, and of the proceeds, one third goes to the brothers’ and sisters’ children, excluding John Dearmond, and one third to the trustees of the Associated Reformed Church in Mecklenburg County, at Sardis.

As to the one third of this fund given to the slaves, it passes to the next of kin, except that portion of if, arising from the sale of the land, and that will go to the heir at l.aw of the testatrix, as so much land,

Per Curiam.

Decree accordingly,  