
    Ellison and Others v. Woody and Others.
    Decided, April 9th, 1819.
    1. Wills — Bequest of Slaves for Lite — Increase. - If a testator bequeath a female slave to his wife tor life, and. then, absolutely, to one of his sons; saying nothing expressly or by evident implication of her increase; such increase, born after the death of the testator, and during the lile of the widow, do not pass by a general residnary clause to ail the children, but belong to the remainder-man: snch as are born before the testator’s death, and not otherwise disposed of by the Will, do pass by snch residuary clause.
    2. Same — Construction—“First Child a Certain Negro Shall Raise.”!--Under a bequest to a daughter of the testator of the first child a certain negro woman shall raise, the legatee is entitled not to the first child born after the death of the testator, and thereafter raised, but to the first child that shall be raised, whether born before or after the testator’s death.
    3. Same — Same—General Residuary Bequest.  — 1 f a testator gives to one of his children a pecuniary legacy; expressly declaring that sum to be all he intends such legatee to receive ol his estate; a general residuary bequest, to “all his children” (without mentioning names,) must be construed as not including that child.
    Micajah Woody, Senr., of the County of Hanover, by his Will, dated Sept. 23d, 1771, and admitted to record Feb. 2d, 1775, lent to his wife the land and plantation whereon he resided, and all the rest of his estate, be it of what kind or quality soever, during her widowhood: he gave to his daughter Constantia Spur six pounds, and *no more: she having received of him already what he thought sufficient of his estate; to his daughter Lurana Woody six pounds cash, and one cow, to be raised out of his estate; to his daughter Sarah Ellison, 50 acres of land, on which she then lived, to her and her heirs forever; to his daughter Cecilia Ellt-son, one negro man named Jack, and a woman’s riding saddle; to his son William Woody, the plantation and land whereon he resided, containing by estimation ISO acres, with the improvements, to him and his heirs forever; to his daughter Agatha Woody, the first negro child his negro woman, named Beck, raised, one feather bed and furniture and one saddle; to his son William Woody, the said negro woman Beck; to his daughter Ursula Woody, one negro man named Peter; to his daughter Massie Nance, sis pounds cash, and two sheep; to his daughter Mary Woody, one negro boy named Ben, and one feather bed and furniture; to his wife Cecilia Woody, one negro woman named Nan, absolutely: concluding with the following residuary clause; viz.;— ‘ ‘Item, all the rest and remainder of my estate, be it of what nature or quality so ever, not herein particularly before given, or mentioned to be given away, it is my will all my children above mentioned may have it equally divided among all them.”
    Cecilia Woody the widow, died in the month of July 1800. After the date of the Will, and before the death of the testator, the negro woman Beck had two children, named Pat and Isham; and after the death of the testator, she had a child, named Jack, who was raised. Pat, the daughter of Beck, had six children in the life time of the said Cecilia Woody. Beck had also a daughter, named Nancy, born after the birth of Jack, in the same life time.
    A certain Thomas Johnson (who after-wards died intestate, and insolvent as it was said,) qualified as Executor under the Will; but, as the testator died free from debt, the widow during her life held and enjoyed all the estate. After her death, William Woody took possession of all the slaves. He sold the negro man Isham to a certain Joseph May, and delivered the negro woman Pat, (as the *first child raised by Beck,) and all the increase of Pat, to Agatha Woody, as belonging to her under the Will; retaining or selling as his own property, all the increase of Beck born after the testator’s death. Thomas V. Nance husband of Massie Nance, took possession and made sale of the personal property, which amounted only to the sum of 7S1. 6s. 634á.
    
    In March 1801, Sarah Ellison and others, claiming under the residuary clause in the Will, filed a Bill in the Superior Court of Chancery for the Richmond District, against William Woody and others; upon which, and an amended Bill afterwards filed, various proceedings and orders took place, which need not here be mentioned.
    On the 12th of June 1815, Chancellor Taylor pronounced his Opinion; that the negro woman Pat, who was the first born child of the negro woman Beck, tho’ born in the life time of Micajah Woody the testator, rightfully belonged, with her increase, to the defendant Agatha Woody, to whom she and they had been delivered by William Woody; that the children born of Beck in the life time, of Cecilia Woody the
    testator’s widow, in like manner belonged to the said William Woody, to whom the said negro woman Beck was given in remainder by the testament of the said Micajah Woody; that Isham, the only other child of Beck, born in the testator’s life time, passed, under the residuary bequest in the said testament, to all the children of the testator, except Constantia Spur; that the said negro Isham, having been sold by the defendant William Woodj' to the defendant Joseph May, ought to be surrendered by the said Joseph May to Commissioners appointed to sell the said slave; and that the profits of Isham, which accrued between the death of the testator and the time when the defendant William Woody sold him to Joseph May, should be accounted for by the said William Woody; and that the said Joseph May should account for the profits of the said slaves received by him, and until he should surrender him as aforesaid.
    The Decree therefore was, that Joseph May should surrender the said slave to Commissioners, who were ordered to sell him, and to divide the proceeds in conformity *with the said opinion; that accounts be taken of the profits of Isham, for which the defendants Woody and May were severally responsible; and reported to the Court, &c.
    From this decree, the plaintiffs appealed.
    Munford for the Appellants.
    The points in controversy in this case depend upon the true construction of the Will of Micajah Woody deceased.
    The testator’s intention must prevail, where not opposed by any rule of law. To ascertain that intention, the whole Will must be taken together; and the circumstances under which it was made may be taken into consideration, 
    
    Apply this rule to the Will in question. Upon it’s face, the testator appears to have been a man in middling circumstances, en-deavouring to make some provision for every one of his numerous family, of nine children, after providing a maintenance for his wife during her widowhood. He appears to have possessed at the date of the Will only two female negroes; viz. Beck and Nan. He gives Beck to Wm. Woody, and Nan to his wife, absolutely, (but saying nothing of their increase,) after lending all his estate real and personal to his wife during her widowhood. He bequeaths to his daughter Agatha, the first child whom Beck should raise; shewing thereby that he considered the progeny of Beck, whom he knew to be a young breeding woman, as one ot the means of providing for his other children, who, without this provision, would have little or nothing; and, immediately after giving Nan, without mentioning her increase, he says, ‘‘Item, all the rest and remainder of my estate, be it of what nature or quality soever, not herein particularly before given or mentioned to be given away, it is my will all my children above mentioned may have it equally divided among them.” It is evident, from the strong wording of this residuary clause, and all the circumstances taken together, especially the smallness of the residuary fund, if the increase of Beck and Nan were not included in it, that he must have intended to comprehend that increase in the residuum.
    *The words, “be it of what nature or quality soever,” shew that he contemplated not only the household furniture, &c. but slaves, which, when this Will was written, and also when the testator died, were to many purposes real estate ; at all events, that he contemplated different species of property; which words can not be satisfied without including1 the children of Beck. Besides, it must be admitted that the increase of Beck are not “particularly mentioned or given away in the foregoing part of the Will:” they are therefore expressly included in the terms of the residuary clause.
    Even if those terms had not been as strong as they are, it has been repeatedly decided that a general residuary clause passes all personal estate, which is not otherwise sufficiently disposed of.  The case of Cole v. Claiborne, 1 Wash. 262, shews that, in this respect, slaves were governed by the same Rule.
    It may be contended, that, according to the maxim, “partus sequitur ventrem,” the gift of Beck, without any other words, was a sufficient gift of her children. It might be so, in a case where no express words or conclusive circumstances demonstrated the intention of the testator to be otherwise. I admit that, in a doubtful case, (as Judge Roane says in Reno’s executors v. Davis,) “the law of humanity ought to turn the scale, and prevent the separation of the children from their mother.” But, if the testator chuses, he has the right to give the children to one and the mother to another; and, in the case before us, he has done so by plain and positive words.
    As to Pat and her children, the bequest to Agatha Woody of “the first child Beck raises,” must be construed as applying to the first child born of Beck, and raised by her, after the testator’s death; because a Will does not take effect until then, and operates from that time: for “a Testament is a just and complete declaration or sentence of a man’s mind, or last will of what he would have to be done with his estate, after his death, 7 Bac. 299.”
    Wickham contra.
    This case is set-tied already; for it *has been repeatedly decided that, where slaves are given for life, the remainderman is entitled to their increase.
    If the testator intended the increase as a fund for his O'her children, why did he not say so?
    Beck being given to William Woody, her children followed of course. It was not necessary to mention them.
    Mr. Wythe had no doubt upon this point. The residuary' clause made no difference; if there had been no such clause, the effect would have been the same.
    The bequest to Agatha Woody was not of the first child Beck should have, but of the first that should be raised, whether born before or after the death of the testator.
    Suppose Beck had had no child born after the testator’s death ; then Agatha Woody would have received nothing according to Mr. Munford’s construction.
    Munford in reply.
    I wish Mr. Wickham had produced the oases, in which he says it has been settled, that the remainder-man, upon the termination of an estate for life in slaves, is entitled to their increase.
    If he had, I believe it would have been found that none of them resembled this. Admit, that in general, where the Will contains no words disposing of the increase, the law is as he has stated; yet, where, as in this case, .the testator’s intention appears to be to establish a different rule, such intention must prevail. Here the Will by the residuary clause expressly disposes of the increase: the remainder-man is therefore not entitled.
    
      
       Wills— Bequest of Slaves for Life — Increase.—There is no question in Virginia, but that, in relation to slaves, the increase born during the continuance of any temporary interest in the mother goes, as she does, to the person entitled to the absolute property in the mother, after the expiration of the temporary interest, unless otheiwise directed by the original owner of the female. Maria v. Surbaugh. 3 Rand. 230. citing principal case. Thus, where a testator gives the mother for life, with remainder over, the increase passes to the remainderman though not named. Erskine v. Henry, 9 Leigh 197, citing principal case as authority. To the same effect, the principal case is cited in Poindexter v. Davis, 6 Gratt. 503. and the principal case is also cited in Taylor v. Yarbrough, 13 Graft. 189.
    
    
      
       Wills — Construction.—See monographic note on •‘Wills” appended to Hughes v. Hughes, 2Muni. 209,
    
    
      
       Reno’s Executors v. Davis and Wife, 4 H. & M. 283; and p. 291, Judge Roane’s opinion. 7Bac. 342.
    
    
      
       4 Bac. 439, and the authorities there cited.
    
   April 9th 1819,

JUDGE ROANE

pronounced the Court’s Opinion, that the Decree be affirmed.  