
    Sarah Ann Penny and Husband v. Richard T. Christmas, Tutor, and Elizabeth M. Christmas, Tutrix of the minor heirs of Malachi Weston.
    A Court of Probates has jurisdiction of an action against minors represented by their tutor, for property in the possession of the latter, where both parties claim under a bequest made by a common ancestor and plaintiff sues for a partition.
    The validity and effect of a will made and carried into execution in another State, and the kind of estate which it confers upon the legatees especially as to personal effects situated in that State, must be tested by the law of the domicil of the testator and not of the legatees.
    In the construction of wills money ordered to be invested in any species of property for the purposes of a bequest, is always regarded as such property. Money to be employed in the purchase of land is treated as land.
    In the construction of wills the intention of the testator is the object to be ascertained, and the language used by him must be understood according to its ordinary, popular signification.
    A testator by a will executed in the State of South Carolina, where he resided, directed a certain sum “ to be invested in the purchase of slaves, for the use of S. during her life, and, after her death, said slaves to return and vest forever in her sons M. and R., and the heirs of their bodies.” M. and R. were in existence at the time of the devise: Held, that the object of the testator was to give a life estate to S., and, after her death, the full property to M. and R.; that such a disposition is valid by the laws of South Carolina, where the common law, modified by statutes, prevails ; that by the laws of that State slaves are considered personal property ; that M. and R. had an estate in remainder, to be enjoyed after the life estate of S. had terminated, but which vested in them at the creation of the particular estate ; and that, on the death of S. and the termination of her estate, M. and R., or their heirs, became entitled to the possession and enjoyment of the property as tenants in common.
    Where property acquired under a will executed in another State is brought by the legatee into this State, where he dies, it must descend according to the laws of this State. The right of inheriting property situated here cannot be governed by the laws of another State, though originally acquired and brought from that State.
    This action was instituted before the Court of Probates for the parish of East Feliciana. The Judge of that court having been recused, the case was transferred to the District Court of East Feliciana, and the District Judge having been also recused, it was tried before Bzitler, Special Judge. The petition represents, that the plaintiff Sarah Ann was married on the 5th of January, 1826, to Robert Weston, then a resident of the parish of East Feliciana: That she had by that marriage one child, Robert P. Weston : That her husband, Robert Weston, died on the 22d of September, 1827, intestate, leaving the said Robert P. Weston, who survived him, his universal heir: That she was married to her present husband, Albert G. Penny, on the 21st of December, 1830 : That her son, Robert P. Weston, died on the 4th of August, 1832, leaving her his universal heir, and as such entitled to all the rights of said minor to the undivided moiety of certain slaves bequeathed to his father by William Scott, late of the State of South Carolina, with their increase, as well as to all the rights of said minor in the succession of his father: That Malachi Weston, Sen., the grand-father of said minor, was married to Sarah Scott of the State of South Carolina, where both resided at the time of the marriage, and until the year 1818, when they came to this State, and settled in the parish of East Feliciana : That they had two children by their marriage, Malachi Weston, Jr., and Robert, the first husband of the petitioner, whom they brought with them to this State, with certain slaves (whose names are given :) That the said Malachi Weston, Sen., the father of petitioner’s first husband, died about the 1st of January, 1822, leaving his widow Sarah Weston, and two sons, Malachi Weston, Jr. and Robert Weston, his only legitimate heirs, and as such entitled to their share in the community which existed between the deceased and their mother, and to one undivided half of said slaves and their increase : That the said slaves were personal property in the State of South Carolina, and by virtue of the marriage of Malachi Weston, Sen. with said Sarah Scott in said State, belonged exclusively to the husband as his separate property: That Sarah Weston, after the death of her husband, on the 5th of March, 1822, caused an inventory to be made of the property left by him (the details of which are given,) but that she did not include therein any of the slaves born in this State from those brought by her husband from South Carolina, (the names of the slaves born in this State being given,) nor the crops made on the plantation on which the deceased resided at the time of his death, as she was bound to do, but that said Sarah Weston and her son Malachi Weston, Jr. took possession of all said property, plantation, slaves, <fcc., and have enjoyed the same, with the revenues thereof, since the death of Malachi Weston, the father, refusing to give the petitioner, Sarah Ann, her legal share thereof, to wit, one-half of said slaves and their increase, with one-half of the crops made by their labor, and her own fourth part of said community property remaining after payment of the community debts. The petition alleges, that the said Sarah and Malachi Weston, Jr. must have made enough from the labor of the slaves on the plantation to discharge all the separate debts of the deceased, and all the community debts existing against the property, and to leave a balance exceeding $20,000, to one-half of which the petitioner is entitled, and to secure which he has a privilege upon the half of said slaves inherited by said Malachi Weston, Jr.: That said Malachi Weston, Jr, died on the 13th of July, 1838, intestate and insolvent, leaving a widow and three children : That the widow subsequently acted as natural tutrix of her minor children, but that having, in August, 1839, married one Richard T. Christmas, without having convoked a family meeting to determine whether she should be continued as tutrix, she has, ipso facto, forfeited the right to act as such ; and that said Sarah Weston has since died.
    The petition further alleges, that William Scott left by his last will the sum of $5000 to be expended in the purchase of slaves to be settled upon said Sarah Weston during her life, and the fee, or right of property therein to be vested forever in equal portions, in said Malachi Weston, Jr. and Robert Weston, and the heirs of their respective bodies : That certain slaves (whose names are given,) were purchased with said sum, and received many years ago by said Sarah, who enjoyed the usufruct thereof and possessed the same, with their increase, till her death: That the life estate of Sarah Weston terminated with her life on the 29th of May, 1839, from which time the petitioner Sarah Ann alleges that, as the only heir of her son, she has been entitled to claim the one-half of said slaves and of their increase, the other half thereof belonging to the minor children of said Malachi Weston, Jr.: That said minors are named William S., Francis P., and Sarah E. Weston : That one Carter is the under-tutor of said minors; That the petitioner has a right to a partition of said slaves and of their increase. The petition prays, that an inventory may be made of the separate property of Malachi Weston, Sen., to wit, of the said slaves and their increase, and of the property belonging to the community existing between the said Malachi Weston, Sen. and Sarah Weston, consisting of the plantation on which they lived, certain slaves, crops of cotton and corn, moveables, ■&c.; that a curator, ad hoc, may be appointed for said minors and be cited to be present at the taking of said inventory; that the legal representatives of said Sarah Weston be also cited to appear; aud that said separate and community property be sequestered until the decision of the suit; that a tutor, ad hoc, be appointed to the minor children of said Malachi Weston, Jr., in order to effect the partition of said slaves and their increase, and that he be cited to answer this petition ; that a partition of said slaves and their increase be made; and for general relief, &c> By an amended petition plaintiffs prayed, that the will of William Scott, or a certified copy thereof,might be recorded, and the execution thereof ordered. Another amended petition was filed, which it is unnecessary to notice.
    Richard T. Christmas and Elizabeth M. Christmas, his wife, stating themselves co-tutors of the minor Sarah Eliza Weston, excepted to the action, alleging that a judicial partition should be made of all the property of the succession and a settlement of all the accounts of the co-heirs, which is not prayed for. They allege further, that all those who should have been made parties have not been joined in the suit, averring that Sarah Weston was married to one Abijah Croft, by whom she had children, all of whom have died , but that one of them, John Croft, left two children ; that one of them, Sarah, married William Griffith, and the other, Abiah, died in 1838, leaving two legitimate children, John and Abiah, who are minors represented by their mother now the wife of Bailey I). Chaney, all of whom are interested in the succession of Sarah Weston, the mother of said John Croft, and should have been made parties. They pray that the suit may be dismissed, &c. An exception was subsequently filed by the same parties to the jurisdiction of the court, in which they allege, that the action is a petitory one to recover slaves, not alleged to appertain to any succession, but to be in the possession of the respondents. They also excepted on the further ground, that the minor Sarah Eliza Weston is the sole owner of the slaves derived from the will of William Scott, being the sole surviving heir of the bodies of Robert Weston and Malachi Weston, Jr., and in possession of said slaves as such. They subsequently filed an answer in which, after a general denial, they aver that Sarah Eliza Weston, the only legitimate child of Malachi Weston, Jr., deceased, is the only person entitled to the slaves sued for; that Sarah Weston, the owner of the life estate in said síaves survived her son Robert Weston and her only child, and that when the life estate of Sarah Weston subsequently terminated by her death, the said slaves became the property of the minor children of Malachi Weston, Jr.; and that the said Sarah Eliza, being the only surviving child of said Malachi, is entitled to the whole of said slaves to the exclusion of all other persons. The respondents further allege,'that the legacy was a joint one ; and that it clearly appears from the will to have been the intention of the testator, that the slaves directed to be given to Sarah Weston during her life, should afterwards vest in the said Malachi and Robert Weston, or the heirs of their bodies, from which it is evident that the survivor, at the death of Sarah Weston was entitled to the whole of said slaves. They pray that plaintiffs’ claim may be rejected, and the slaves decreed to be the property of Sarah Eliza Weston ; and for general relief.
    Sarah Croft, assisted by her husband William Griffith, and the mother and tutrix of the two minor children of Abiah Croft deceased, intervened. They denied all the allegations in the plain» tiffs’ petition not specially admitted. They averred, that the late John Croft was the son and heir of Sarah Weston by a former marriage; that Sarah Croft, now Griffith, and the two minor children of Abiah Croft, deceased, are the heirs of said John Croft; that the property inventoried on the 5th of March, 1822, belonged to the community existing between Sarah Weston and her husband Malachi Weston, Sen., with the exception of certain slaves (whose names are given,) who belonged to the said John Croft j that all the other slaves and property mentioned in the petition were the separate property of said Sarah Weston, or of her son John Croft. They further aver, should the pretended will of William Scott, and the transfer from Oliver, be shown to be genuine, and the slaves be identified therewith, and the will and transfer be proved to have been executed in South Carolina, that neither ihe plaintiffs nor th'e heirs of Malachi Weston, Jr. have any title to said slaves ; because, if the will and bill of sale be construed by the laws of the State in which they were intended to be carried into effect, and where the said Sarah Weston, Robert Weston, and Malachi Weston, Jr., all resided, they are null and void as containing a substitution and fidei-commissum. ; and, if construed by the laws of South Carolina, the said Sarah Weston, having survived the said Robert Weston and Malachi Weston, Jr., became the absolute owner thereof.
    The intervenors further allege, that on the 24th of December, 1824, Joseph Scott, in whom the title to the said slaves vested, conveyed them to John Croft, the ancestor of the intervenors ; that he left them in the possession of Sarah Weston, who held possession of them as owner for more than fifteen years by open, peaceable and uninterrupted possession ; wherefore th'ey plead the prescriptions of five, ten, and fifteen years, as against the plaintiffs and their co-defendants; averring that, if the said Sarah Weston be not entitled to said negroes, they (the intervenors,) are, as heirs of John Croft. They allege, that all the property mentioned in the petition, not admitted by them to be community property, was the separate property of said Sarah Weston. They deny the heirship of the plaintiff Sarah Ann, or her right to claim any thing from the succession of Malachi Weston, Sen., or of Sarah Weston, averring that the only partition which can be made by the court between themselves and the heirs of Malachi Weston, Jr., is of the succession of said Sarah Weston, and that the heirs of Malachi Weston, Jr., represented by their tutor and tutrix, are estopped from contesting the right of Sarah Weston to the negroes described as her separate property by a joint answer of Sarah Weston and Malachi Weston, Jr., to a petition filed against them by the plaintiffs in a former suit, in which those respondents alleged the said slaves to be the separate property of said Sarah. They conclude by praying, that the plaintiffs’ demand may be rejected, and that the estate of Sarah Weston, deceased, including the said slaves, may be partitioned between their co-defendants and themselves.
    So much of the petition as relates to any other property than the slaves claimed under the will of William Scott was struck out, by consent. It was admitted, that Christmas and wife had been appointed tutor and tutrix to the minor children of Malachi Weston, Jr., deceased, they having been made parties defendant on the motion of plaintiffs’ counsel: That William S. and Francis P. Weston, two of those minors, were dead: That Robert Weston married Sarah Ann Kirkland, one of the plaintiffs, on the 5th of January, 1826, and had issue one son, Robert P. Weston, who survived his father : That Robert Weston, the father, died on the 22d of September, 1827, and Robert P. his son, on the 4th August, 1832, and that his mother survived him, having in 1830, married her present husband, Penny : that Malachi Weston, Jr. married Elizabeth M. Howell, by whom he had three children, and that he died in 1838, leaving his widow and three children surviving ; and that the widow married R. T. Christmas : That Malachi Weston, Jr., and Robert Weston were the children of Malachi Weston, Sen., and Sarah Weston, and that they are the persons mentioned in the will of William Scott: That Sarah Weston died in May, 1839, having survived her sons Malachi and Robert, and the ouly child of Robert, leaving the slaves in contest and their increase in her succession : That Malachi Weston, Sen., and his wife Sarah, came from South Carolina, where they were married, to reside in this State, in the year 1818 or 1819: That the slaves were received by Sarah Weston after the death of her husband, in the year 1823, or 1824 : That William Scott died in South Carolina towards the end of 1822, or beginning of 1823, and that Joseph Scott was his executor: That John Croft died some two or three years before Sarah Weston.
    The case having been taken up on the exceptions, the plea to the jurisdiction of the court was overruled ; and the will of William Scott, of which a duly authenticated copy had been produced, was ordered to be recorded and executed.
    On the trial the plaintiffs offered in evidence the inventories of the estates of Sarah Weston, and Malachi Weston, Sen,; the will of William Scott; a duly certified copy of the statute of the State of South Carolina, of 19th February, 1791, entitled an act for the abolition of primogeniture and for the giving an equitable distribution of the estates of intestates and for other purposes : and evidence to establish, that the common law of England, except so far as modified by statute, prevails in that State. There was also an agreement, that all the standard authorities on the common law might be referred to as evidence of that law, The record of the suit between the plaintiffs and Sarah Weston and Malachi Wpston, Jr. was produced in evidence ; and the bill of sale from Oliver to Sarah Weston for the negroes purchased under the bequest of William Scott, dated 1st July, 1823, and that from Joseph Scott to John Croft, dated the 24th of December, 1824, for the same slaves.
    The clause in the will of William Scott out of which the present action arose, is in these words :
    “ I request and do hereby empower my acting executors to lay out five thousand dollars in the purchase of young and valuable negroes for the use of my sister, Sarah Weston, during her life, and after her death said negroes to return and vest forever in her sons Malachi and Robert Weston, and the heirs of their bodies.’’
    There was a judgment below ordering the slaves to be partitioned equally between the plaintiff Sarah Ann, and the heirs of Malachi Weston, Jr. From this judgment the defendants appealed.
    
      jBoyle, for the plaintiffs.
    The controversy in this case depends upon the legal construction and effect of the bequest made by William Scott. The will was made in South Carolina where the testator lived and died, where his executors also lived, and where his will was probated. The mass of his property, except that portion bequeathed to his sister Sarah Weston and her sons Malacbi Weston and Robert, was given to other relatives living in South Carolina. There is no principle of law better settled than, that all rights to the personal estate of a testator must be governed by the law of the place where the bequest is made. “ It has its rise,” says Story, “ in the comity which all civilized nations extend to each other.” Conflict of Laws, 19. 30, 33, 36, 232, 233. The interpretation and proof of wills is invariably governed by the law of the place where they are made, Ibid. 311, 315, 319, 391. 394. In the case of Dixon’s Ex’rs v. Ramsay’s Ex’rs, 3 Cranch, 319, the Supreme Court of the United Stales decide, in so many words, the principle contended for, that all rights to personal estate under a will are to be governed by the law of the place where the will is made. A similar case is to be found in the Connecticut Reports, 1st vol. p. 547. Our own decisions are in-strict conformity. In an early case, (Morris v. Eves, 11 Mart. 730,) Judge Porter asserts the doctrine in the language of Emerigon, Traité Des Assurances, ch. 4, sect. 8. Dig. lib. 21, fol. 2: “A contract made in a foreign country is governed by the laws of that country, in every thing which relates to the mode of construing the meaning to be attached to the expressions by which the parties may have engaged themselves, and the nature and validity of that engagement.” In the case of Olivier v. Townes, 2 Mart. N. §. 93, the same Judge re-asserts the doctrine and refers to Huberus, of whom he says, “ that his authority is more frequently resorted to than any other writer upon this subject, because he treated it more extensively and with greater ability.” There are two cases to be found in 5 Mart. N. S. that of Day and Wife v. Thibodeau, p. 49, and Saul v. His Creditors, p. 587. The first declares, that a will valid and legal according to the laws of the country where it is made, vests a title; while the last confirms the former opinions of the court, and lays down the sole exception to the rule, namely : <l That although contracts are governed by the law of the country where they are made, yet they cannot be enforced to the injury of the State whose authority is invoked to carry them into effect.” In the case before us, it cannot be pretended that the demand of the plaintiffs, if granted, would bring with it such a result. It is unnecessary to refer to the case relied upon by the adverse counsel from 3 Dallas, 369; as it only decides a question often settled, that the insolvent law of one of the States does not release a debtor from the pursuit of his creditor in any other. The reference to Huberus in the note is good authority for the plaintiffs.
    What are the rights of the parties to the present action under the will of W m. Scott, of South Carolina, and how are those rights affected by the laws of that State ? It is in proof, that the common law of England, except so far as that law is modified by the statutes of the State, is the law in force there. Much of our difficulty in ascertaining the rules and principles of that law, is obviated by the agreement that this court and the counsel may refer to the standard law writers on the common law. It is also in proof, that in South Carolina, slaves are regarded as personal property. From 2 Bay, 397, it is shown, that the statute of Edward, De donis condition dibus, was never in force in South Carolina ; and from a certified copy of the statute law in relation to “ Descent and Distribution,” that the common law incident of survivorship in cases of joint-tenancy has been expressly repealed. Using the technical language of the common law in describing the bequest in his will, we find that it is a disposition known as an executory devise, in which, from the anxiety of the courts to carry into effect as far as possible the intent of the testator, larger powers were yielded to the testator in disposing of his estate than in other modes of conveyance. It needs no particular estate to support it. By it a fee simple, or other less estate, may be limited after a fee simple. By it, a remainder may be limited of a chattel interest after a particular estate for life created in the same. Chitty’s Blackstone, vol. 1, book 2, p. 17. Had Wm. Scott, by grant or deed, made such a disposition of the sum of $5000 to be laid out in negroes, (which all admit amounts to the same thing as so many negroes,) the interest given would have been a conditional fee at common law, because being chattels, they would not have been governed by the statute de donis, so as by its operation to be converted into an entailed estate; and that statute, according to Bay, never was in force in the State of South Carolina. The grantee of a fee conditional at common law, the moment he came into possession as owner, had the right of absolute disposal of the property, if that property consisted in chattels ; if of real estate, the moment issue was born to him. 1 Blackstone, Book 2, p. 113. The analogy between the case before the court and the old conditional fee at common law, is adverted to, to explain the error into which one of the counsel for the defence has fallen in contending, that by the common law Mrs. Weston was the first taker, and held therefore in fee. Had the conveyance been by deed, and not by last testament, giving to Mrs. Weston and the heirs of her body the property, and not its use, he might have been correct.
    But the disposition of William Scott by last will and testament is an executory devise, and is now governed by settled rules. They are laid down clearly and distinctly by Blackstone, 1 vol. book 2, marginal page, 175, in these words : “ By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed ; for by law, the first grant of it to a man for life, was a total disposition of the whole term, a life estate being esteemed of a higher and larger nature that any term of years. And at first, the courts were tender, even in the case of a will, of restraining the devisee for life from alienating the term, but only held, that in case he died without exerting that act of ownership, the remainder over should then take place ; for the restraint of the power of alienation, especially in very large terms, was introducing a species of perpetuity. But soon afterwards it was held, that the devisee for life had no power of aliening the term so as to bar the remainderman, yet in order to prevent the danger of perpetuities, it was settled, that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee, for then all the eandles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainderman who happens to survive the rest; and it was also settled, that sueh remainder may not be limited to take effect unless upon such contingency as must happen, if at all, during the life of the first devisee.” The devise of Wm. Scott is in accordance with all these rules. Mrs. Weston and her children were living at the date of the will; and. to use the illustration of the author, burnt out nearly together, the sons leaving issue competent to take under the terms of the devise, living at the time of their death. In note 23 to the same page of Blackstone, we find this language from Fearne, the highest authority on this subject: “ It has long been fully settled, that a term for years, or any chattel interest, may be given by an executory devise to an unborn child of a person in existence when it attains the age of twenty-one; and that the limits of executory devises of real and personal property are precisely the same.” Blackstone again says, p. 398 : “ By the rules of the ancient common law, there could be no future property to take place in expectancy created in personal goods arid chattels: because being things transitory, &c. But yet in last wills and testaments, such limitations of personal goods and chattels in remainder after a bequest for life were permitted, though originally that indulgence was only shown, when merely the use of the goods, and not the goods themselves, was given to the first legatee; the property being deemed all the time to remain in the executor of the devisor. But now that distinction is disregarded : and if a man either by deed or by will limits his books, or furniture, to A. for life, with remainder over to B. this remainder is good.”
    But it is contended that the will contains a substitution. Tested even by the laws of this State, there is no substitution — the bequest to Sarah Weston is but of an usufruct. Civ. Code, arts. 525, 527, 532, 533. But the will must be governed by the laws of South Carolina, where the doctrine of the Louisiana and French Codes on this subject is unknown.
    Lobdell, on the same side.
    The bequest gave a life estate to Sarah Weston, with the remainder to Maiachi and Robert Weston, as tenants in common. See the Statute of South Carolina of 17 Feb. 1791. 2 Bay’s S. C. Rep. 397. 4 La. 94. Youngbloodv. Flagg, 11 La. 337. Laprie v. Smith, 13 La. 91. Brosnaham v. Turner, 16 La. 433. Bevine v. Patton, 17 La. 589. 4 Griffith’s Law Register, 846, 847, 848, 853, 866, 867. 1 Brown’s C. C. 274. 3 Ibid. 101. Christian’s Notes to Black. Comm, book 2, p. 428. Precedents of Wills, pp. 2, 160, 196, 197, 214, 253, 254, 293, 331, '357 to 370, 339, 398, 418, 419, 448, 451, 458, 498, 504, 529, 633.
    Whether the will be construed according to the laws of England, of South Carolina, or of this State, the fee, or absolute or full property vested in Malachi Weston, Jr. and Robert Weston. Cloutier v. Lecompte, 3 Mart. 485. Farrar v. McCutcheon, 4 Mart. N. S. 45. Arnaud v. Tarbe, 4 La. 502. Duplessis v. Kennedy, 6 La. 271. Clague v. Clague, 13 La. 1. State v. Bermudez, 13 La. 221; and 17 La. 485. Bernard v. Golden-bow, 18 La. 95. Ibid. 21. 1 Robinson, 115. Nouveau Repertoire, verbo, Substitution. 5 Toullier, book 3, tit. 2, ch. 1, Nos. 10, 504. Civil Code, arts. 525, 527, 533, 534, 536, 1507, 1508, 1509. Story’s Conflict of Laws* pp. 19, 30, 33, 36, 232, 311, 315, 319, 391, 394. Blacks. Comm, book 2, pp. Ill, 113, 398.
    The estate, of Sarah Weston terminated with her life. The heirs of Malachi Weston, Jr. and Robert Weston are entitled to the slaves and their increase, as tenants in common; and the plaintiff Sarah Ann, as the universal heir of her son Robert P. Weston, the sole heir of Robert Weston, has a right to a partition, and to be put in possession of one-half of the slaves and their increase. Civ. Code, arts. 866 to 870, 873, 876, 8S0, 882, 898, 903, 934 to 940, 932, 1214. Hicks v. Pope, 8 La. 554.
    
      A. M. Dunn and Preston, for the appellants,
    This action must be dismissed for want of jurisdiction in the Probate Court. Badon v. Poucher, 15 La. 455. The will of Scott relied upon by plaintiffs, shows that the property in dispute does not belong to the succession of Sarah Weston. The action is a petitory one, and should have been brought before a court of ordinary jurisdiction.
    By whatever laws the case is to be governed, one universal principle pervades all systems of jurisprudence in the interpretation of wills. The intention of the testator must be sought by the interpretation of words in their ordinary acceptation.
    
    Here the testator says : “ I request and empower my executor to lay out 15000 in the purchase of negroes.” Now, negroes purchased with the money of the estate belong to the estate. Not a dollar, nor a negro is conveyed to any person by the will. The money before used, and the negroes aftenoards, belonged to the estate. By the words, “ for the use of my sister Sarah Weston, during her life,” the testator does not convey a life estate in the negroes to her ; he does not bequeath them to her for a term ; he gives her no property ; but requests that these negroes be provided, at the expense of his estate, for her use during her life. There is no usufruct created ; that was unknown to the laws of South Carolina. No property is transferred to her that can be sold by her; there is only property provided belonging to the estate of the testator, which she is authorized to use. No estate is vested in her.
    The next words are: “ And after her death said negroes to return” — to whom? To Malachi and Robert Weston, who never owned them? No — to return to their owner, to the estate of William Scott, to which they belonged, and out of which the title had never been divested. A thing returns where it was ; not where it never was. The negroes never belonged to Malachi and Robert Weston, and therefore never could return to them. They belonged to the estate of William Scott because they were purchased with its funds, and therefore could at all times return to the estate from which they temporarily went. The word return would be absurd, if applied in any other way.
    After their return what is to be done with them? He requests that they then be vested in Malachi and Robert Weston, and the heirs of their bodies. The whole title and estate is then transferred to, and vested in them, that is to say, “ after the death of Mrs. Weston.” The will says so in so many simple words. But to vest in them after the death of Mrs. Weston means, it is said, to vest in them before her death, to wit: at the moment of the testator’s death.
    To decide that the gift shall vest before Mrs. Weston’s death, when the testator wills that it shall vest after her death, is to decide that he means by his will that which we know he does not mean, and that he wills that which we know he does not ■will-
    
    It was the intention of the testator that the whole property should vest in his grand-nephews and nieces, because he gave the whole to his nephews ; and the heirs of their bodies, and not to their heirs generally. The defendants are the whole 
      of those nephews and nieces. He did not intend that the negroes should in any event go to strangers, such as the plaintiffs are.
    It is contended that the will is to be construed by the laws of South Carolina. If so, the legacy cannot ascend from son to mother.
    
      Muse and Merrick, for the intervenors.
    The will must be construed according to the laws of this State as to the disposition in favor of Sarah Weston and her son, which was to be executed here. Civ. Code, art. 10. 3 Rob. 262.' Story, Conflict of Laws, § 280. The disposition contains a substitution, ox fidei-commissum, forbidden by the laws of this State. The slaves being in possession of Sarah Weston or her heirs, they have a right to retain them against persons claiming under a defective title. Civ. Code, art. 1507. 4 Mart. N. S. 45. 4 La. 502. 13 La. 2. The disposition is absolutely and entirely void. 5 Toullier, p. 52, No. 40.
    But if the will is to be governed by the laws of South Carolina, still the whole property must vest in Sarah Weston, an estate tail in things personal having been given to her. “ Where an estate tail in things personal,” says Blackstone, (Chitty’s ed. book 2, p. 398,) “ is given to the first, or any subsequent possessor, it vests in him the total property, and no remainder over shall be permitted.” Ibid. p. 175, note 9. See also 2 Kent’s Comm. 352, 361. 3 Tomlin’s Law Diet, verbo, Tail, pp. 554-5. 1 Co. Litt. 20. 1 Bro. C. R. 274. 2 Blackst. 114. That an estate tail was created by the bequest, see 3 Tomlin’s Law Diet. 557. 3 Salk. 338. 1 Inst. 28. 2 Id. 855. 5 Mod. 266. 3 Salk. 237. Dyer, 334.
   Bullard, J.

The last will of William Scott of South Carolina, contained the following clause, out of which the present controversy has arisen : “ I request and do empower my acting executor to lay out $5000, in the purchase of young and valuable negroes, for the use of my sister Sarah Weston, during her life, and after her death, said negroes to returnand vest forever in her sons Málachi and Robert Weston, and the heirs of their bodies.” The will was duly probated in South Carolina, and, in pursuance of the above recited bequest, that sum was employed in the purchase of slaves, which were conveyed to her by one Oliver, according to the terms of the will. The legatee resided with her two sons in Louisiana, though the will was made and probated, and the testator lived and died in South Carolina, where that clause was carried into effect. Sarah Weston died in 1839, in possession of such of the slaves as survived, and their increase. Robert Weston, one of the remaindermen'; married the present plaintiff, Sarah Ann, and died, leaving one child, Robert T. Weston, who afterwards died without issue, and his mother, the present plaintiff, became his sole heir at law. In that capacity she claims in this suit the partition of the slaves in question, between herself and the heirs of Malachi Weston.

Other heirs of Sarah Weston, issues of a former marriage with Croft, intervene, and claim to participate with the other parties in the same slaves, alleging that they were the property of Sarah Weston.

The court below being of opinion, that Sarah Weston, accord ing to the laws of South Carolina, had but a life estate, with re mainder over to her two sons, who were in esse at the time of the bequest, as tenants in common, and that the plaintiff is the sole legal representative of Robert Weston, one of them, decreed a partition between her and the heirs of Malachi Weston, Jun., and the latter have appealed.

It is first urged by the counsel for the appellants, that,the Court of Probates erred in not sustaining the plea to its jurisdiction. He contends, that the heirs of Malachi Weston being in possession, and the parties not claiming as heirs of ¡Sarah Weston, the action is essentially petitory, and should have been brought in a court of ordinary jurisdiction. Pie relies upon the case of Badon’s Heirs v. Foucher et al. 15 La. 455.

In that case the intervening party set up a title adverse to that of the original parties in the Court of Probates, who were prosecuting an action of partition of property held by them as coheirs, and this court held, that although the Court of Probates might inquire into questions of title arising incidentally between parties litigating before it, with a view of carrying out the partition ; yet that it was incompetent to pronounce upon the question of title asserted by the intervenors, which was wholly adverse to that of the parties, derived from a different source, and not from a common ancestor. In the case now before us, the party pleading to the jurisdiction traces back his title to the same source with that of the plaintiff, to wit, the will of William Scott. It is true, the property to be divided does not belong to the estate of Sarah Weston, and the parties do not claim as her heirs, (except the descendants of Croft, whose pretensions will be noticed hereafter,) but both the heirs of Malachi Weston, Jun., and of Robert Weston, claim as legatees under the will of Scott. The court, therefore, did not err in maintaining its jurisdiction.

The next question which has been discussed is, whether the lights of the parties are to be decided according to the law of South Carolina, or that of Louisiana. Although the legatees, Mrs. Weston and her sons, were residents of Louisiana, yet the testator, William Scott, was a citizen of South Carolina. His will was made, published, probated, and carried into execution there. Its validity and effect, and the degree of estate which it conferred upon the legatees, especially as it relates to personal effects situated in South Carolina, must, in our opinion, be tested by the law of the domicil of the testator and not that of the legatees. It is, therefore, to the laws of that State we are to look for guidance in pronouncing upon the rights of the parties, so far as they depend upon the will. 3Cranch, 319. Story, Conflict of Laws, 19, 30, 232-5.

The conveyance of Oliver may be laid out of view, and the parties regarded as holding directly by the devise in the last will of Scott, although it purports merely to direct the investment of a sum of money; for, in the construction of wills, money ordered to be invested in any species of property, is always regarded as if the property itself were devised. Money to be employed in the purchase of land, is treated as land.

In the construction of wills, the intention of the testator is to be ascertained and followed, and the language used by him to be understood according to its ordinary, popular acceptation. In the case now before us, the testator directed the investment of $5000 in slaves, “ for the use of [his] sister, Sarah Westonj during her life, and after her death, said negroes to return and vest forever in her sons, Malachi and Robert Weston, and the heirs of their bodies.” The intention of the testator appears to us quite clear. It was to give a life estate in the slaves to his sister, and the full property in them, or the fee, after her death, to his two nephews, who were in existence at the time of the devise; and the question is, whether such a testamentary disposition be valid by the laws of South Carolina, and what degree of estate vested in the two sons, and when did it vest.

It is admitted that the common law of England, modified by statute, prevails in that State ; and that we may refer to standard works upon that system of jurisprudence for information on this subject. Slaves, it is also shown, are considered in South Carolina as personal property or chattels.

Robert and Malachi Weston we have said, had an estate in remainder, which is defined to be an estate limited to take effect and be enjoyed after another estate is determined. 1 Blackstone, book 2, chap. 11. Both their interests are in fact only one estate; the present term of years, and the remainder afterwards, when added together, being equal only to one estate in fee. They are, indeed, different parts, but they constitute but one whole. They are carved out of one and the same inheritance. They are both created, and may both subsist together; the one in possession, and the other in expectancy. Ibid.. Loco citato. We learn from the same authority, that if A. be tenant for life, remainder to B. in esse, the remainder is vested* in him at the creation of the particular estate.

According to these principles, which it appears from authorities before us, are recognized by the courts of South Carolina as existing in that State, we do not doubt, that the estate in remainder vested in Malachi and Robert Weston; and that, on the death of their mother, and the termination of the particular estate, they or their heirs had a right to the possession and enjoyment of the estate as tenants in common. See statute of South Carolina, in the record.

The pretensions of the heirs of Croft, childen of Sarati Weston by a former marriage, rest upon the hypothesis that the slaves vested in full property in Sarah Weston, in whose right they claim, and that they descended to be equally divided between all her heirs, according to the laws of Louisiana. They contend, that the will of Scott contains a substitution, which is reprobated by our laws, and that consequently the full property vested in Sarah Weston. It is not so clear that .even according to our laws, the disposition in the will would be regarded as a substitution. The testator might well give to one the usufruct, and to another the full property ; and the testament might bear that construction, as that appears to have been manifestly the intention of the donor. Be that as it may, we are clearly of 'Opinion that the validity of the will, and the title of the parties under it, are to be settled according to the law of South Carolina, and not that of Louisiana.

But it is only as to the degree of interest acquired by Mrs. Weston, and her sens under the will, that the law of South Carolina is to govern. When the property was brought into this State, and one of the co-proprietors died, his title descended according to the law of Louisiana. Whoever was his heir according to our laws, became at once vested with all his property situated here, wherever it may have been acquired, or by whatever title held. On the death of Robert Weston, his son, who survived him was seized at once of his right in the slaves in question; and on his death, his mother succeeded to his rights in the same way. We cannot adopt the laws of South Carolina as to the right of inheriting property situated here, although originally acquired in and brought from that State. The laws of no State can have such extra-territorial operation, or give such a direction or destination to personal property acquired within its limits when afterwards removed from it, as to derogate from the laws regulating the distribution of estates in the State to which it may have been removed. We are not to look to the laws of South Carolina to ascertain who is the heir of Robert Weston, in relation to particular property brought by him or his mother from that State, and of which he died possessed here.

We conclude, that the court below did not err in coming to this conclusion, and in decreeing a partition between the plaintiff Sarah Ann Penny, and the heirs .of Malachi Weston.

Judgment affirmedl  