
    ALEXANDER RANKIN & AL. vs. ANDREW HOYLE & AL.
    'A festator;bequeathed'certain slaves to bis wife for life, with power at her death to dispose of-them, as she might think proper., among her children. • One of the children died'in tho lifetime of the testator, leaving children. Held, that the wife had no right, under this power, to appoint any of the slaves to tho said last mentioned children.
    Canse removed from the Court of Equity of Gaston County, at the Spring Term 1848.
    This bill was filed by Alexander Rankin and his wife Elizabeth Ann Rhinebarf, Alexander Moore and Robin'sonMooreagainst Andrew Hoyle, as the executor of Elizabeth Moore, deceased, and as the administrator with the will annexed of Alexander Moore, senior, deceased, and against Elizabeth R, Moore and the other children of Jatees Móore, deceased, and its purpose was to obtain a judicial construction of the wills of the said Alexander and Elizabeth Moore deceased, and for the distribution of the property accordingly. The case made by the bill and answer is this: Alexander Moore by his will gave to -his wife Elizabeth, considerable property, both real and personal, including several slaves, during her life, and at bar death to. be disposed of, as she might think proper tamong her “children. Elizabeth Moore, the widow, by •her will gave a certain number of slaves, so bequeathed to her, to the children of her deceased son Jatees Mooro. Alexander Moore died in November 183?, havingsurvived his son James Moore, who died in the preceding September, and Elizabeth Moore died in the year 1839. Tho will of Alexander Moore was made and published in Jane 1834, and that of his widow iq December 18S8. The plaintiff,. Elizabeth, wife of the plaintiff Alexander Rankin, and the other plaintiffs, are the only children of Elizabeth Moore,, who were living at the death of their-mother. The defendants, other than the executor, are the children of JamesMoore deceased, and grand children of the said Elizabeth. The defendant, Hoyle, as the ex-ecutorof the said Elizabeth and administrator with the will annexed of the said Alexander Moore, deceased, took, possession of the negroes bequeathed by the said Elizabeth to his co-defendants, and sold some of them, and; holds the proceeds of the sale, together with the slaves not sold, subject to the direction of the Court. The-plaintiffs contrnd, that their mother Elizabeth Moore had no authority, by virtue of the power given to hér in the will of her husband, to bequeath the slaves to her'grand-children, and that, consequently, the said slaves.- or their proceeds in the hands of the executor, belong to them. On the other hand, the defendants, the children of James Moore, deceased, insist, that, under the provisions of the act of 1816, and by virtue of the power given in their grandfather’s will to their grandmother, she might bequeath to them whatever she might have given to their father, had he been, living at her death.
    
      Avery, Bynum and Alexander, for the plaintiffs.
    
      Guión, for the defendants.
   Battle, J.

The question presented for our consideration, has not hitherto, so far as we are aware, been decided or even discussed in our Courts. The counsel for the defendants admits, that, prior to- the year 1816, a power to appoint to or among children did not authorize an appointment among grand children. Sug. on Pow. ch. 9, sec. 5, page 501, (Law Lib. Ed. vol. 2,page 253 ;) but he contends that the act of 1816, (1 Rev. Slat. ch. 122, sec 15,) makes an alteration of the law in this respect, not expressly, but by a necessary construction of its provisions. These provisions are, that when any person shall bequeath or devise any of his or her estate to his or her child or children, and such child or children shall have died in the life time of such testator or testatrix, in every such caso the said legacy, devise or bequest, shall take effect and vest a title to the property* or share of estate, described and mentioned in the same, in the issue of such child or children, if any, in the same manner and to the same extent as it would have vested in such child or children, had she or they been in full life at. the death of the testator or testatrix and taking effect of such will Applying the act to this case, the counsel insists that the power, given by Alexander Moore in his will to his widow to dispose of the slaves in question, at her death, among her children, had, upon its execution, the same effect, as a bequest of them in the will of*the testator to his son, James, which, as he died before the testator, would go to his children. In support of this proposition, the counsel relics upon the well established doctrine, that the appointee under a power takes from the instrument, which creates the power, and not from that which executes it. Sug. on Pow. 331, (2 vol. Law Lib. Ed. page 22 ) Unfortunately for the argument, the power of appointment in this case is not to be executed in favor of the testator’s children, but the children of his wife. The words of the will are “tobe disposed of as she may think proper among her children." These words may embrace children of the testator’s wife, by a former or a subsequent husband— children who may not be his. If a power, then, which is given by a will, have the same effect when executed, as a bequest in the will, the act of 1816 cannot apply to this case, because the will does not authorize, by its terms, the execution of the power in favor of the person, whose legacy would necessarily be saved from lapse by the operation of the act. But a more decisive answer to the argument is. that, when (he testator’s will took effect by his death, his son James Moore was not one of the objects of the power, he having died before his father. He was not then one of her children, among whom she was ■authorised to appoint, and no case could be made, to which the act of 1816 could apply. And his children, also, were excluded, because (he power of appointment was confined to the wife’s children. Whether, if James Moore had survived his father, and the power given by the father’s will had been to appoint among his, the testators, children, it could have been executed in favor of the children of James after his death, or whether the act of 1816 applies to any case where thebequst is not directly to the child, but only to be carried into effect, through the medium of a power of appointment among the children of the testator, it is unnecessary for us to decide. In the case presented to us, we hold that the power was not well executed in favor of the grand-children of the testatrix, Elizabeth Moore, and that consequently the plaintiffs are entitled to a decree for such of the slaves, bequeathed by the will of the said Elizabeth, to the defendants, as are now in the hands of the executor, and fut-an account of the proceeds of such as he has sold.

Per Curiam.

Decree accordingly  