
    Tandy P. Duncan and Wife vs. Martin, Hall and Others.
    A bequest of slaves “to A to her, and the heirs of.her body lawfully begotten/9 vests the absolute estate in the first taker.
    Whenever the words in a bequest of personalty, would create an estate tail of realty, they vest the absolute estate in the first taker.
    This is a suit in equity. The bill alleges that in the year 1792, on the 15th of February, Benjamin Moon, of Virginia, died, having first made his will, which was found in Virginia, on the 17th -of September, 1792, in which-he bequeathed “two negro women and their increase to his daughter A. Perkins, to her and the heirs of her body lawfully begotten.3' That the complainants are some of the lawfully begotton heirs of the body of said A. Perkins, and entitled to have a part of the said negroes and their increase delivered to them. That said-A. Perkins was married at the time the will was executed, and during her marriage, the complainant, the wife of Tandy P. was born and was her child. That during the marriage of said A. Perkins, her husband sold a part of said slaves. That said A. Perkins then died, and her husband bequeathed a part and sold a part of the said negroes to the defendants, and that the rest were sold by his executors to pay debts. The bill prays for a discovery of the number and names of said slaves and their increase, and to charge the husband’s estate with the price of those sold; and that a division of those remain-mg with the legatees be divided, &c. To this bill de-J. , tt 11 ^ ITViT • 1 lendants Hall-and Martin demurred, specially on the ground, that the absolute property in said slaves was pos-asessed under the bequest to the first taker, Mrs. Perkins, and belonged to her husband, under whom defendants claimed. The bill was taken pro confesso as to the other defendants. Upon the hearing the judge below sustained the demurrer and dismissed the bill. The complainants appealed in the nature of a writ of error to this court.
    
      John J. White, of Gallatin, for the complainants, argued against the demurrer at length.
    
      J. $. Terger, for the defendants in support of the demurrer.
    The only question presented for the consideration of the court is, whether the daughter of B. Moon took a limited or an absolute estate in the negroes and their increase. Under the bequest of “two negro women and their increase to his daughter, A. Perkins, to her and the heirs of her body lawfully begotton,” I contend that the estate of the legatee, A. Perkins, in the slaves was absolute, and unconditional, and consequently the slaves belonged to her husband.
    1. The estate in the slaves if they had been real estate, created by this bequest, would have been an estate tail general; even if it had been created by grant, for an estate tail is created by grant when it is ascertained what issue shall inherit it. Then it is ascertained that the lawfully begotten heirs of A. P. are to inherit. 4 Com. Dig. (Estate by Grant, B. page 13.)
    There is no doubt but that the words of this bequest in a grant would have raised an estate tail general to the heirs of the body of the woman lawfully begotten, at common law. 4 Com. Dig. Estate by Grant, B 3, page 19; 2Bac. Abr. Estate Tail, B. 543.
    
      In a will, or devise, words that would not raise an estate tail, when used in a grant, will have that effect. 4 Com. Dig. Estate by Devise, No. 5, page 163; 2 Blac. Com. 115.
    It being seen that these words would have created an estate tail at the common law, if it had been real e,state; but the next question is, can there be an estate tail in a personal chattel, either at the common law, or by the law of Virginia at the time of making this bequest?
    I contend that neither at the common law, nor by the law of Virginia, could this entail of slaves be raised.
    it could not be raised at the common law, because two things by it are necessary to create an entail.
    1. That the subject be land, or something of a real nature. 2 Bac. Abr. Estate Tail, A. 541.
    2. That the estate in it be an inheritance. 2 Bac. Abr. Estate Tail, A. 541.
    These two requisites are wanting here. Slaves are neither land nor things of a leal nature; they are mere persoual chattels. Nor can there be an inheritance in a personal chattel from its very nature, which is perishable. It goes to the administrator or executor, and not to the heir, and is not therefore the subject of inheritance, "but is the subject of distribution.
    3. It is the well settled law of England, and has been for centuries, that whenever the words creating the estate would make an entail of land, when used in the disposition of personalty, they convey an absolute estate to' the first taker. 4 Com. Dig. Estate Tail, B. 2, page 14; 2 Bla. Co. 112, 398; 1 Pr. Wms. 290; 3 Vez. jr. 99; 1 Vez. sr. 134; 4 Kent’s Com. 221, 227; 2 Mer. Rep. 183; Brow. Ch. R. 170, 188; 1 Russel Rep. 213; '2 Roper on Legacies, 352, 353, 356; 19 Vez. 73;. 1 Mad. Ch. 461; 1 Wms. on Ex. 426; Fearne on Rem. (new edition) 461,467 and notes 490; 2 Burrows R. 1112.
    In accordance with the decisions of the English courts have been the adjudications of North Carolina, upon this subject. 1 Haw. Rep. 247, 163; 2 Do. 108, 437; 2 Hay. 130, 154; 1 Mont. R. 42; 2 Do. 137.
    So the question has been considered in Tennessee, and Claiborne, 5 Yerg. Rep. So in South Carolina. 1 Bay’s Rep. 453; 2 Des. Rep. 94; 4 Des. 17. So in New York. 11 Wendell’s Rep. 259, 671. And so the Supreme Court of the United States have settled the question. 12 Wheat. Rep. 568.
    But it has been urged that at the common law, slaves are not personal property. It is true, that at the common law no such property existed, the property has grown up in our own country; and as it grew up received the stamp of personalty, which it has retained ever since, except, when some statute has changed its character. By analogy to the common law, if for no other reason, they were and would be now esteemed personalty, because they possess all the distinctive, marks and characteristics of personalty, mobility, decay, liability to be lost, &c., and because they want one of the main features of realty, capability of inheritance, by the rules of the common law. Whenever they have been made the subject of dispute, litigation, disposition, they have always been made to pass, and have been considered personalty. They have always been the subject of distribution unless otherwise provided by statute.
    This may all be true, that by virtue of the rules of the common law they would be considered personalty, and under a bequest creating an entail, would pass to the first taker the absolute property; but it is said not to be so in Virginia, where the bequest was made, that the laws of that state do not construe such words as are used in this will, as creating an entail.
    I maintain that the common law construction prevails in Virginia, with the exceptions which Í will point out; .and they do not so materially vary this case as to take it out of the common law rule above laid down.
    
      In Virginia, words more ambiguous than the'words used in this bequest have been construed'to create’jan entail of real property, and to pass the absolute estate in it under the statute of that State abolishing entails of really. 1 Rand. Rep. 193, 288; 3 Do. 280; 5 Do. 273, 308.
    That the common law construction must be applied to this bequest, will be seen by the following examination of the Virginia Statutes upon the subject of slave pro- ' perty.
    In Virginia, as early as 1705, slaves were declared by statute to be real estate, and could be entailed as lands. 3 Hening’s Statutes at Large, 333.
    In 1727 the act of 1705 was in part repealed; and slaves could only be made to pass in the particular mode pointed out; and could only be entailed as a part of the particular estate granted, or devised. If they were otherwise given or bequeathed they passed as chattels. 4 Hehing’s Stat. at Large, 223.
    In 1748 they were declared personal estate, and the acts of 1705 and 1727 repealed. 5 Hen. Stat. at Large, 432.
    In 1752, this act of 1748 was repealed by royal proclamation, and the acts of 1705 and 1727 enforced as before. 5 Hen. Stat. at Large, 559; 6 Hen. Stat at Large, 215. ¿
    In 1792, the act of 1748 was re-enacted, and slaves were again declared to be personal property. 1 Rev. Laws of Virginia, 431.
    ■In 1776, an act was passed abolishing entails. 4 Kent’s Co. 14; 1 Rev.(-Lav?s of Virginia, 368.
    If we are to consider slaves as real estate in Virginia, ■under the act of 1705, I contend, that by virture of the act of 1776, the absolute estate in the-slaves under this bequest was in the first taker. The acfof 1776 abolishes the entailment of real estate, and gives the absolute furtoiP! to the first taker. So if slaves are to be considered realty they are not entailable. 1 Rev. Laws of Virg. 368; 4 Kent s Co. 14.
    JOI1S. In accordance with this view, are the Virginia decis-1 Hen. and Mum. 559; 3 Call. R. 342, 354; 2 Hen. and Mum. 381; 1 Rand. R. 198, 288; 3 Do-280; 5 Do. 273, 308.
    If they are to be considered as passing under the act of 1727, I contend, that Mrs. Perkins took the absolute estate in the slaves under this bequest. The act of 1727 only authorizes them to be devised and granted as lands, and as attached to the land. See 4 Hen. Stat. at Large, 223. By virtue of this act, concurrent estates in the land and slaves must be given by the deed or will. 3 Call. R. 338. If, then, lands could not be entailed by virtue of the act of 1776, neither could slaves be entailed, because one would be an absolute and the other a limited estate. This bequest containing none of the requisites to make a good entail of slaves, and if it did, entails being abolished by the act of 1776, the slaves pass to the first taker. 1 Call. Rep. 338.
    If the acts of 1705 and 1727 were repealed by the act of "748, and that act was repealed by proclamation in 1752; and the two first acts were not re-enacted, and slaves, remained as at common law, as is argued, they would pass, as I have shown, as personal properly under this bequest to the first taker, Mrs. Perkins.
    Thus, then, I Lave shown that neither at the common law, nor by virtue of the statute law of Virginia, can the complainants claim by virtue of this entailment, as an entail, but on the contrary it is expressly provided, that personal property so bequeathed shall go to the first taker, by the common law, and by Virginia law it is provided that it shall pass as at common law.
    It is argued that it was the testator’s intention, that this property should only belong to the first taker for life, and remainder over to her heirs living at her death." Such a construction of this bequest would be stretching intention too far to create a remainder or executory deVise upon so remote a contingency, when that intention, if proved, could never operate to defeat the positive provision or canons of property. 2 Wash. Yirg. E. 7. The intention of the testator is always construed to be in conformity to, and not against, the rule of law in force at the time of making his will, in this case the rule was that such a limitation as this in a will of chattels should pass an absolute estate to the first taker, and not an estate tail; and no intention can change or alter the operation of this rule. 1 Bay. R. 87; Fearne on Rem. 461 in notes, 463 and 467 and notes;- 2 Roper on Leg. 352, 353, 354, 356; 2 Bur. R. 1112. There is nothing in this will showing the testator’s intention to be other than an absolute gift. These words in a will under the rule applicable to real estate, create an estate tail, and therefore, in relation to personalty pass the absolute interest to the first taker, Mrs. Perkins. 4 Kent’s Co. 221, 222, 223, 277; and Mrs. P. having the absolute property in the slaves, that absolute property passed to her husband by the common law rule, and by positive statute in Virginia. 4 Hen. Stat. at Large, 223.
    The circuit court therefore did not err in sustaining demurrer and dismissing the bill.
   Greek, J.

delivered the opinion of the court.

The bequest in this will to ££A. Perkins to her and the heirs of her body lawfully begottten,” if applied to realty, would create an entail. The rule of law is, that whenever' the words of a bequest, if applied to realty, would create an entail, when applied to personalty, vest the absolute interest in the first taker. The words in this will being applied- to personalty vested the entire interest in Mrs. Perkins. The decree of the court below must therefore be affirmed.

Decree affirmed.  