
    Caroline Seibels v. Abner Whatley, Barnet Statham and Wife, and Others.
    Testator by Ms will, after a specific bequest gives the residue to his wife for life and at her death “ to the nieces of my wife, in such manner and at such time as my said wife shall think proper.” — Held, that the power of disposing was .nut given to the wife ; that she had no right to divest the legacies so given, nor to disturb the equality of the portions which the will vested in the nieces, but merely to fix on the time and manner of enjoymeut; and that a niece of the husband not being within the description of those named in the will, could not take by the appointment of the wife. [*608]
    Where the term “ increase of slaves,” is used, it means increase thereafter to be produced. Under a bequest of a female slave and her increase, children of the slave born before the execution of the will, do not pass. [*609]
    Edgefield, June Tbrm, 1836.
    Peter Lamkin, late of Edgefield district, having a wife but no children, made his last will and testament, dated 10th of June, 1826, of which the following is a copy :
    “ I, Peter Lamkin of the State and District aforesaid, being of sound mind and memory, but mindful of the uncertainty of life, do make and ordain this my last will and testament, revoking all others.
    “ 1st, I lend unto ;ny wife, Helen Lamkin, all my estate, real and personal, (after paying all just demands that I may owe,) to be by her enjoyed during her life, and at her decease, I do hereby give, devise, and *6061 bequeath unto Edmund Lamkin Whatley, my nephew, *the tract -I of land I now live on, containing eight hundred acres, together with all the crop, horses, cattle, hogs, farming utensils, &e., that may be on the plantation at the decease of my said wife; also the following negroes : Ned, Sam, Pompey, Pollidore, George, Nance and her increase, Mary and her increase, Betty the wife of Ned.
    
      “ The balance of my negroes and other property not herein specified, as willed to Edmund L. Whatley, at the death of my wife Helen, it is my wish shall be given to the nieces of my wife, in such manner and at such time as my said wife, Helen, shall think proper. In'testimony whereof, I, the said Peter Lamkin, have hereunto set my hand and seal this tenth day of June, 1826. Peter Lamkin, [l. s.] Witnessed, &c.
    It is my wish that Col. Abner Whatley, and my wife, have the sole management of my affairs.”
    Shortly after the date of the will, Peter Lamkin died — Col. Whatley qualified alone, as executor on the will, and Helen Lamkin, the widow, continued in the possession of the property until her death, in April, 1831.
    Helen Lamkin, the widow, left a will in which, after reciting the power given to her by her husband’s will, of distributing the residue of his estate after death, &c., she gives of that estate, to Elizabeth Helen Lamkin, (her husband’s niece, not hers,) a negro child named Emma : to all the rest of her neiees not otherwise therein provided for, five dollars each ; and the residue of the estate to her nieces, Helen Anne Whatley and Caroline Lamkin Statham, to be. equally divided between them; and appointed Abner Whatley her executor. By a codicil, she altered the distribution between Helen Anne Wbatley and Caroline L. Statham, and gave to Helen Anne, a negro girl, Harriet, and a tract of land called the Pickle Place, and the residue to Caroline L. Statham.
    After the death of Helen Lamkin, in April, 1831, Abner Whatley qualified on her will, and in conformity with its provisions, delivered over the legacies as therein directed, except the'negro girl, Emma, (a child of Nance, born before the execution of Peter Lamkin’s will, and bequeathed by Helen Lamkin to Elizabeth,) which he still holds as guardian of his son Edmund L. Whatley.
    The negro woman Nance, bequeathed by Peter Lamkin to E. L. Whatley, had at the execution of his will two children, Tom and the said girl Emma, which Abner Whatley, the executor, regarded* as passing by the terms of the will, “ Nance and her increase,” to his son L Edmund, and therefore as his guardian has them now in his possession.
    The plaintiff, Cornelia Seibels, a neice of Helen Lamkin, has filed this bill against Abner Whatley, as exeeutor of the two wills, and as guardian of his son, Edmund L. Whatley, and against Barnet Statham, and Caroline (formerly Seibels) his wife, Dr. Thomas Batty and Helen Anne (formerly Whatley) his wife, and Eliza Seibels, as defendants, claiming an equal share with the other neiees of Helen Lamkin, to that portion of Peter Lamkin’s estate, which he by his will directs' to be given to the nieces of his wife, in such manner and at such time as she shall think proper; and that Tom and Emma form a part of this estate, thus subject to an equal division among the nieces of Helen Lamkin, and do not pass and vest in Edmund L. Whatley by the terms and description “ increase” of Nance, although they were born before the execution of the will of Peter Lamkin. All the defendants, except Eliza Seibels, answered, and insisted that the will of Peter Lamkin conferred the power upon his wife to dispose of this property among her nieces in such portions as she might think proper; and Abner Whatley suggests in his answer, that if such was not his intention, and the property be now subject to equal division among all the neices of Helen Lamkin, then, other nieces who are not parties to this suit are entitled to come in and take shares.
    Johnson, Chancellor. The first point made by counsel, is whether Tom and Emma, children of Nance, born before Mr. Lamkin’s will, pass to E. L. Whatley under the bequekt to him of “ Nance and her increase.”
    The words used do not limit the increase given with Nance to future increase. Increase, as a general term, will, I suppose, include past increase as well as future; and extend to all the children of the stock slave.
    The next point relates to the extent of the power conferred on Mrs. Lamkin by her husband’s will.
    The words used by the testator do not give the wife the power of giving or bequeathing to her nieces, but amouut to a bequest to them by the testator himself. If the power of disposing had been given to the wife, and not exercised by the husband, then it might have been a debatable *6081 gestión, whether she had not such control *over the corpus as to apportion it according to her sound discretion. In such case, I think her distribution, however unequal, would stand, unless it frustrated some expressed object of her testator, and thus evinced fraud or an evasive motive. (1 Con. Eng. Ch. Rep. 242; 2 lb. 303; 5 lb. 464; 6 lb. 405; 1 lb. 562; Sug. Pow. 440, 442, 481, 488; 1 East. 521; 1 Yin. 66 ; Harp. Eq. Rep. 111.)
    The first words used by the testator are these : “ The balance, &c., at the death of my wife, it is my wish shall be given to the nieces of my wife.” If he had stopped here, I think no lawyer would doubt that this would have amounted to a direction to his executors to deliver “the balance” to his wife’s nieces, and so would have constituted a valid bequest to the nieces themselves. The executors would have taken upon that trust.
    The words superadded (“ in such manner and at such time as the said Helen shall think proper”) have no other effect than to require the executors to deliver the property at such times and in such manner, as the wife may think most advantageous to the legatees. This gave the wife no right to divest the legacies given by the husband to the nieces, nor to disturb that equality of portions in the corpus of the legacies which the will of the husband vested in them, but merely to fix upon a time and manner for their enjoying their shares. As to time, for instance, she might order the legacies to go over, either in her lifetime or at her death, and either before or at the neices marrying or coming of age, &c. As to manner, she might by'deed or will have ordered the property to be delivered either free from or subject to, trust or settlements, &e. (4 Con. Eng. Ch. Rep. 91; 13 Yes. 114.)
    Mrs. Lamkin transcended her power, not only in attempting to take from some of her nieces their right to equal portions, but in endeavoring to give part away from her own nieces to Elizabeth Helen Lamkin, a niece of her husband. The husband gave exclusively to the former; his own nieces do not fall within the legatees described by him, and cannot take without violating the words of his will.
    It is decreed that so much of the bill as relates to Tom and Emma ante nati “ increase of Nance be dismissed.”
    That the appointment made by Mrs. Lamkin among her own nieces, be set aside for inequality ; and that in favor of Elizabeth Helen Lamkin be set aside, beeaus'e made to a person not described in the power conferred on her.
    That the Commissioner do make up the accounts, and ascertain and report the names and ages (i. e. whether infants or not) of the persons entitled to take as nieces of Mrs. Lamkin. Also, what r*fi0Q would be the most proper time for delivering their portions, and *- subject to what trust and conditions. The costs to come out of Mrs. Lam-kin’s estate so far as it may extend. The balance, if any, to go according to the effect of the decree, under the rule of Court.
    The defendants, except Eliza Seibels, appealed, and will move the Court of Appeals to reverse so much of the decree as sustains the bill, and decides that Helen Lamkin had not power to dispose of the property in such proportions as she might think proper, among her neices ; and to dismiss the bill on the ground, that Peter Lamkin by his will conferred upon his wife the power of disposing of the property as she should think proper, with no other restriction than that the objects of her bounty should be-her nieces.
    The plaintiff appeals, and contends that Tom and Emma did not pass to E. L. Whatley.
    
      Wardlaw, for the plaintiff.
    
      BausJcett, for defendants.
   Harper, Chancellor.

We differ from the Chancellor who pronounced the decree, in relation to the subject of the plaintiff’s ground of appeal. When the term “increase of slaves” is used, I think it is the common understanding of men, that it refers to increase thereafter to be produced. If a female slave were bequeathed who had children grown up, and themselves having children, would it be thought that all these were to pass under a bequest of the first parent and her increase ? So of a domestic female animal. When the right of a tenant for life to the increase of a flock or herd is spoken of, the increase to be produced after his title accrues, is of course meant. It has been decided by this Court, overruling the case of Gayle v. Cunningham, (St. Rep. Eq. 124,) that the children of female slaves bom after the making of the will and before the death of the testator, do not pass under a bequest of the mother. The express bequest of the slave and her increase, might perhaps be construed to have the effect of indicating the testator’s intention that these should pass.— But I cannot in any way construe them to relate to children born before the making of the will.

With respect to the defendants’ ground of appeal, we agree with the Chancellor, and little needs to be added to his reasoning. . *There „ can be no doubt of the correctness of the remark, that if the will L b u had stopped at the words — “ The balance, &c., at the death of my wife, it is my wish shall be given to the nieces of my wife ” — that though expressed as words of wishing or recommendation, they would have been imperative and made an effectual bequest to all the nieces of the wife, who would have taken equally; and that the wife could have had no control in the matter. What effect can be given to the superadded words “in such manner and at such time as my said wife, Helen, shall think proper ?” It is not said in such proportions; and can such construction be given to the words ? It is plain that the words “ at such time ” can have no effect in this respect. Can the words “in such manner ?” It seems obvious enough that manner is something different from substance or quantity. In the King v. the Marquis of Stafford, 1 East, 521, referred to" by the Chancellor, the gift was to the wife for life, and then to the use of her issue “ in such parts, shares and proportions, manner and form,” as she should direct. There was no doubt about her power of apportioning; but it was contended that under the devise to her issue, she could only appoint an estate tail. But Lord Ellenborough determined on the words “ manner and form ” — that they import the power of determining the nature and quantity of the estate the issue should take, and therefore that the fee was well appointed by the wife. In Trollope v. Linton, 1 Cond. Eng. Ch. Rep. 242, it was determined by the Yice Chancellor, Sir John Leach, that the words “manner and form” have the effect of authorizing the person having the power of appointment to give equitable estates to the appointed; and that the grant of a term of five hundred years to trustees for their use, was a good exercise of the power. The cases on the subject are collected by Mr. Sugden in his treatise on Powers, and he comes to the conclusion (p. 442) that “ in all these cases, it is quite clear the testator means the fee to pass : and the word manner, or any word of the like effect, may well be construed in favor of the intention, to mean, in such mode as to the quantity of the estate to be given, as the donee shall think fit. ” Here, then, full effect may be given to the words used in the will, without holding them to relate to the proportions of the property, which they do not naturally import. Mrs. Lamkin might have given the share of either of her nieces to trustees for her separate use during life, and at her death to her issue, or made any other similar arrangement which prudence had seemed to require. *It J was well observed in argument, that if a similar power'had been given as to property bequeathed to a single individual, it would have been impossible to say that these words could have no operation or effect. There is no reason for giving them a more extensive operation when the bequest is a joint one. The plaintiff’s motion is granted; and the decree affirmed with respect to the defendant’s ground of appeal.

Chancellors Dr Saussxjre and Johnson, concurred.  