
    HENRIETTA SWAIN and others against WM. A. SPRUILL, Executor.
    
    Where one gave, by will, tohis wife for life, all his land and plantations, with the stock of every kind upon them, with slaves and a white family to be supported, and added, that all the rest of my chattel-property, of every description, after taking out the chattel-property left out to A, was to go to her, it was Held that there was a strong implication that he intended to include the crops and provisions on hand, at his death, as a gift to his wife.
    Where a testator expressly gives, specifically, for life, with a limitation over, things which ipso usu consumuniur, the Courtlias no power to control the disposition of the testator, by denying that use to the first taker, which has been bestowed by the will, although it may impair the value, or extinguish the thing itself, to the loss of the ulterior taker.
    Cause removed from the Court of Equity of Washington.
    Dempsey Spruill died in 1842, having made his will on 11th day of October, 1840, and a codicil ou the 4th of May, 1842. By the will, he gave to his son Dunning, two negroes, then in the possession of his son, and a small sum of money, “ in full of my estate as to his part, to him and his heirs.” The will, then, has the following clauses : “ I lend to my wife, Mary, the house and plantation where I live, together with all the lands I own, (consisting of several designated parcels,) together with all my working tools, horses, mules, cattle, hogs, sheep, and house-hold and kitchen furniture, of every description, during her life. I lend to my wife, Mary, all mjr negroes, to her disposal, also, those negroes that are lent out to my children, to her disposal, to take or let them keep them, to be at disposal her life-time, or she has a right to lend auy one of the children as she may think proper, or to- take- them away at her pleasure. I further give- to m-y ivife, all my money and notes that are in the house, to. the use of my wife, Mary; also, my constable’s receipts to. her use. Now, my will is, that all my negroes, at the death 'of my wife, shall come in together, of every description, to be equally divided among my lawful heirs, except my son Dunning. I give to-my daughter, Anne Caroline, on,e bed and furniture, the-first choice, and two cows and calves, also two ewes and lambs, and one hundred and fifty dollars in money, to her,, and her heirs forever. I give to my daughter, Henrietta Dunston, forever, all of her own property, nowin my possession, and also, three cows and calves, of the stock that will be in possession of my wife at her death, and three ewes and lambs. Now, my will is, that all of my household and kitchen, furniture; horses, cattle, sheep, and all the rest of my chattel property, of every description, after taking out the chattel property I have given away to my two daughters, Anne Caroline and Henrietta Dunston, be equally divided between my lawful heirs after the death of my wife, excepting my son Dunning, who is not to come in as an heir, as I have given to him his legacy before.” The will, then, contains numerous devises to the testator’s children, and the children of his deceased children — all to take effect after the death of his wife. By the codicil, he again declares, that all the gifts, in his will, to his children and grand-children, are to be considered subject to the life-estate of his wife, except that of $150 to his daughter, Anne Caroline, and that is to be paid to her without interest, at the discretion of her mother, and is to be over and above her share of his estate, on the division, directed by his will. The testator appointed his wile and his son, William A. Spruill, executors, and they proved the will and took out letters testamentary in May," 1842.
    Mrs. Spruill took all the estate into her possession, and paid all the testator’s debts, and, with the assent of Wm. A. Spruill, she had the use of all the personal property, as legatee, during her life. She died in January, 1858, having made a will, and appointed her son, William A. Spruill, her executor also. After her death, the son, William A., took possession of all the personal estates belonging to each of his parents. The testator’s slaves were divided, and all the stocks of every kind, and the furniture and other things, which had belonged to his father, and remained specifically at the death of his mother, were sold by him for the purpose of division, according to his father’s will.
    In September, 1858, the bill was filed by the testator’s surviving children and grand-children, mentioned in the will, and the personal representatives of those who had, in the mean time died, against William A. Spruill, as the surviving executor of his father and the executor of his mother. It states that, besides the slaves, the personal estate, which came to the hands of Mrs. Spruill, consisted of a large stock of horses, mules, cattle, sheep and hogs, a considerable quanti y of corn, cotton, pork, bacon, wheat, peas, and other provisions on hand, a large and valuable collection of farming, plantation, black-smith’s, and other tools and utensils, a large number of beds, tables, chairs, crockery and other articles of household and kitchen furniture ; a large amount of money, bonds, accounts and other dioses in action; all taken together, to the value of $4000. The bill then alleges, that the plaintiffs are advised, that it was the duty of the executors of Dempsey Spruill, to sell all the personal estate, except the slaves, and have the money secured at interest for the benefit of Mrs. S. for her life, and the capital left for the plaintiffs, who are entitled in remainder, or at least, that it was her duty to preserve all the articles given to her for life, so that they might come specifically to the remaindermen, and also to supply others in the place of those that wrere consumed, or were worn out, or died ; but that instead of so doing, she reduced the quantity, quality and value thereof, all the time, while she augmented her own estate in proportion.
    The bill further alleges, that after the death of Mrs. Spruill the defendant took the slaves into possession and worked them on his own farm. The prayer is for an account, and that the defendant and the estate of his mother, may be held chargeable for the money and debts left by the testator, and for the crops, and provisions left by him, and also for the full value of the original stocks of cattle, horses, mules, hogs and sheep, the household and kitchen furniture, and all the tools and other utensils before mentioned.
    The answer states, that Mrs. Spruill took possession of all the chattel property of the testator, and used it according to the ordinary course of husbandry and house-keeping. But it denies that she wasted any part of it, and avers that the only loss it sustained was that incident to the ordinary use of such articles, or from natural decay during her life. It further states that some of the negroes were kept for a short time oil the plantation to take care of the property until it could be sold, after the death of Mrs. S., and some of them worked on the defendant’s plantation for about ten days; that they were then hired out (because some of the owners were infants) until an order of court could be obtained for a division, which was soon made; that during the same period some of the plaintiffs retained slaves, which had been put into their possession by their mother. And the defendant submits that an account shall be taken of the services of the slaves, after his mother’s death, the several parties being willing to be charged reasonably for such as he had.
    The cause was removed, by consent, to be heard in this Court on the pleadings and the will; and on the hearing, the parties asked for a construction of the will in the first instance, before sending it to the master for an account-.
    
      Winston, Jr., for the plaintiffs.
    
      Henry A. Gilliam, for the defendant-.
   Ruffin, J.

The money and debts due to the testator, are given to his wife absolutely; and the plaintiffs have no interest therein. As to them, then, the bill must be dismissed.

There is no express gift in the will, of the provisions or crops on hand, eo nomine. But they are otherwise sufficiently given specifically. Such a gift might certainly be expected to accompany the universal devise of all the land and plantations, with the stocks of every kind on them, and the slaves, as needful, if not indispensable to keeping house and carrying on the plantations and supporting the slaves. But other parts of the will leave no doubt on that point. After giving the stocks, working tools, furniture, &c., to his wife for life, and legacies to two of his daughters, the testator adds emphatically, “ now, my will is, that all my household and kitchen furniture, horses, cattle, sheep, and all the rest of my chattel-property of every description, after taking out the chattel-property I have given to my two daughters, A. C. and Ii. D., shall be equally divided between my lawful heirs after the death of my wife,” which 'would, under the circumstances, raise a strong implication of a gift of all the chattel-property, as he calls it, to the wife for life. If, however, that were not sufficient, every thing that is wanting is supplied in the codicil, which declares that all the gifts in the will, to the children, are to be subject to a life-estate in his wife. The crops and provisions, therefore, stand as gifts to the wife for life, like the stocks and furniture, and tools.

The gifts are all specific, and the question is, what interest .the tenant for life and the remaindermen take in the things. It is perfectly clear that, here, the testator expected and intended that his wife, with a large family of children, and some slaves, should enjoy the things themselves. But wo do not take that to be conclusive as to the rule of law, founded on the terms of the gifts in his will, excepting only, that there is generally, in such dispositions, something in the will, or the circumstances of the family, to denote that to be the pervading intention and expectation of testators, thus giving a clew to the proper construction. ¥e think, however, after some reflection, that where a testator expressly7 gives, specifically7, for life, with a limitation over, things which ipso usu consiomuntur, the Court has no power to control the disposition of the testator by denying that use to the first taker, which has been bestowed by the will, although it may impair the value, or extinguish the existence of the thing itself, to the loss of the ulterior taker. It must be taken that the testator had considered the chances of benefit to those in remainder, after the prior benefit bestowed by him on the first taker, and that he only meant to limit over those chances. It seems to be entirely unwarrantable to sell the things in the first instance, giving the interest to the tenant for life, and securing the capital for those to take afterwards, as is the rule when such things are given in a residuary clause ; for that would amount to this, that neither the first nor the last taker should have them as given; that is, specifically. No other rule, therefore, can he devised, hut that the tenant for life is entitled to the possession and enjoyment of the things according to the ordinary use of them in the country. It is admitted that this gives the advantage to the tenant for life, as she may thus get the whole and the remaindermen nothing. But that results from the will of the owner, and there is no power to restrain him in that respect. Indeed, it is generally apparent, that the chief benefit is meant for the first taker, who is commonly the widow, for whose comfort and the maintenance of the family, such provisions are usually made. If the tenant for life, instead of using the things, and thereby consuming them, wantonly destroy them or sell them, undoubtedly, she would be responsible for the value of them, or the price, but not otherwise. Nothing of that kind exists here, but the only question is, whether her estate is liable for the value of those things, which did not remain specifically at her death, but were consumed in the enjoyment of them. For such as were consumed the Court holds that she is no more responsible, than she would be for the impaired value, by age or decay, of those which were on hand at her death. The remaindermen must take all together in the state in which she left them without her fault. It follows that she is not bound to replace, with others, such as died, or were worn out. With respect to the profits of the slaves, between the death of Mrs. Spruill, and the division, the parties are liable to account, whether received by them respectively in the form of hire or labor. These declarations will probably enable the parties to settle without sending the case before the master, which we suppose to have been the purpose of bringing on the case in its present form. The defendant will be entitled to his costs, and may retain them out of the fund in his hands, if sufficient.

Pee Curiam, Decree accordingly.  