
    
      Mary B. Snoddy and Adeline A. Snoddy vs. Elizabeth Snoddy.
    
    Where the words, in the will, relied on, in defence, are, “ I leave to my dearly beloved wife, all the rest of my negroes,” &c. — “ to divide amongst her children, at her own pleasure” — the Court refused to grant an injunction to restrain the widow of the testator from removing the negroes from the State, on the application of the widow of one of her sons, no gift to the son having been proved under the power in the will.
    Grand-children never can take under a limitation over to, or a power of appointing m favor of children, if there be any one answering that description, at the time the limitation over takes effect, or the power is executed. ■„
    
      Before Johnson, Ch. at Spartanburg, June, 1845.
    The case is fully explained by the following decree.
    Johnson, Ch. The complainant Mary B. is the widow and Adeline A. the infant daughter and only child of the late Alexander Snoddy, who died intestate, in 1841, and the defendant is his mother. Administration of the intestate’s estate was first granted to one David Bruton, but proceedings were instituted in'the Court of Ordinary, to revoke that administration and substitute the complainant, Mary B. Pending that proceeding this bill was filed. It charges that the defendant was in possession of certain slaves, eleven in number, and sundry other articles of personal chattels, which belonged to the estate of the intestate at the time of his death, and. that she was about to remove them out of the State, whereby the complainants, only distributees of the estate, would be in danger of losing the property, and prays an injunction to restrain the defendant from removing them. The bill also states that the intestate and the defendant were joint owners of certain other chattels, of which defendant had the possession, and that they had been jointly concerned in planting for some years before his death, and that she had appropriated large sums of money to which he was entitled to her own use, and prays partition of the chattels, and a general account of all the money transactions between them.
    The defendant states in her'answer, that the slaves named in the bill, never belonged to the intestate, but to herself, and as evidence of her right, she exhibits the will of her late husband, Samuel Snoddy, which contains the following clause.
    
      “ I leave to my dearly beloved wife, all the rest of my negroes, with all my stock and working tools, to divide amongst her children at her own pleasure, and if she thinks proper to sell a negro for the benefit of the family, she is at liberty.”.— Ransome and Jude, two of the negroes named in the bill, passed under this bequest, and the others are the subsequent issue and increase of Jude, and the right of property in them depends on the fact whether the defendant had given them toiler son, the intestate, Alexander Snoddy, in his life time, and I shall proceed to dispose of that question before I enter upon the other matters in controversy.
    The will of Samuel Snoddy is dated in 1817; at what time he died does not appear, nor do I find it staled in the pleadings. lie gives, by his will, the land on which he lived, to his three youngest sons, Andrew, Samuel and Alexander, and this, with the legacy to his wife, constituted the bulk of his estate, having before provided for two other sons, John and Isaac. He left also several daughters. John, I think, was married and settled to himself before the making of the will. All the children, with the defendant, remained on the plantation or some other place, and the slaves, stock, &c., labored for the support of the family under the direction of Isaac, the oldest son remaining with them. How long he managed it does not appear, but on his leaving it, Andrew took the management of it, and when he left it the management devolved on the intestate, Alexander. About 1836, perhaps before, the defendant purchased another plantation and procured a conveyance to her son, the intestate, and they both went to live on it, he, as before, having the exclusive management of the plantation and negroes in dispute, and all others that belonged to defendant, about twenty altogether, made crops and sent them to market, bought and sold live stock, implements of husbandry, &c. In short, managed the plantation as his own, and as some of the witnesses said, with great propriety. The mother and son living together, as they ought to have done, he conducting the general concerns, and she presiding over the domestic.
    Amongst the negroes employed on the plantation was Ran-some and Jude and her children, and declarations of the defendant, made subsequent to 1835 or 1836, importing that she had given Jude and her children to the intestate, her son Alexander, were testified to by several witnesses. On one occasion she said to John Cox, that he ought to congratulate Alexander on the birth of one of Jude’s children. Elizabeth Sims, who had been the widow of Andrew Snoddy, testified that in 1836, defendant told her she had given Alexander, Jude and her children, and that he was partial to them because they were his ; and Holly Johnson, another witness, carries another declaration to the same effect as far back as eighteen years ago, when Alexander was going to school to Mrs. Balenger; she said she intended to give Jude and her children to Alexander. Two other witnesses, Herbert Collins and Abraham Collins, testified to similar declarations made in 1841, but under circumstances, which are to be found in my notes of the .evidence, which rendered them, as I thought, unworthy of credit, nor did I attach much, if any, weight to the evidence of Holly Johnson. Elizabeth Sims and Mrs. Balenger reside out of the State, and were examined by commission, and I had no means of judging of their credit but from' their depositions. But however I might be disposed to distrust this evidence of the fact of the gift, I should feel constrained, under the authority of our decided cases, to come to the conclusion that it was established, if it had remained uncontradicted.
    The evidence on the part of the defendant, shows that she had made a will sometime before the death of her son Alexander, by which she had bequeathed to him Jude and some of her children, and the impression in the family had been that she intended to provide liberally for him; and the declarations of Alexander, derived from credible sources, go to disclaim all right to the slaves up to the time of his death. Mr. Poole, the Tax Collector for the District, testified that the intestate made regular tax returns to him from 1836 to 1840, inclusive, for himself and his mother, the defendant, and that in all oí them eighteen negroes were set down to the account of his mother, and none to his own, and these returns, it will be recollected, are required by law to be sworn to by the party making them. Jonas Bruton testified that in the early part of 1841, when the intestate was about to visit Alabama, he requested witness to make tax returns for himself and his mother, and directed him to tell the Tax Collector that their property remained precisely as it was the preceding year.— The intestate died in the November of that year; and John Snoddy, a brother, testified that during the week before his death, he told him that all the negroes that he owned were three children that he had received by his wife in marriage, and one that he had bought; and that in answer to an inquiry whether his mother had given him nothing, he replied that she had not, but referring to his administration of the estate of his brother, Isaac Snoddy, she said she was afraid it might involve him in ruin, and that she would provide for him when he got' rid of that.
    Now it is impossible to reconcile these declarations of the intestate, made under circumstances which called his attention particularly to the subject, with the fact that Ransome and Jude and her children belonged to him — nor do I think it difficult to account for the apparent inconsistency between these and the declarations of the defendant. The intestate was the only child remaining with her — he was daily rendering her services, that but for him, she would have been obliged to employ strangers in, — he was her constant companion, and independent of natural affection, these considerations would have induced her to contemplate more ample provision for him than her other children, and it might reasonably be supposed, that an old and attached and fond mother might take occasion often to refer to it, without taking care to weigh her words with precision, and without, perhaps, comprehending them, sometimes employing those in the past tense as a substitute for the future; or what is equally probable, misunderstood or mis-remembered by the persons spoken to, and fancy, founded on a supposed fitness of things, often supplies the place of truth. The case furnishes, I think, a striking commentary on the facility with which parole gifts to children have often been sustained in our Courts.
    In anticipation of this result, another question has been raised in behalf of the complainant, Adeline A., the infant daughter of the intestate, Alexander. The will of Samuel Snoddy, it will be observed, confers on the defendant the power to divide this property “ amongst her children at her pleas-are,” and it is insisted that the discretion given to her refers only to the time, and not the manner or proportions in which it is to be divided, and that all the children will be entitled equally ; that this complainant, as the sole lineal representa ■ tive of her rather, may become entitled to the interest he would have taken if he had been living, and is otherwise entitled to security against the removal of the negroes until the defendant shall exercise the power or die.
    I incline to think that the discretion confided to the defendant, refers only to the time of the division, but it is a question of some difficulty, and has not been argued, and I shall reserve it especially, as it is unnecessary to the case, as also because none of the parties interested in it are parties to the cause. If the time and manner of the distribution are both discretionary, then the defendant is not accountable to anyone for the manner in which she exercises it. If the will controls the manner of the distribution, the will limits the distribution of the property to the defendant’s children,' and it is a well known rule of law that grand-children never can take under a limitation over to, or a power of appointment in favor oí children, if there is any one answering that description at the time the limitation over takes effect, or the- power is executed. 4 Ves. 692, Reeves vs. Bryner, — 10 Ves. 195,Radcliffe vs. Buckley. So that this complainant cannot, under any circumstances, be entitled to any interest in these slaves.— The defendant denies in her answer, that she has in her possession any monies, goods, or chattels, which belonged to the intestate at the time of bis death, or that she is indebted to him. On the contrary she states, that after his death she delivered to his administrator, Bruton, all his property that remained in her possession and a portion of her own. She admits, however, that the intestate employed and superintended his own and her hands and negroes on their joint account,— that the proceeds were to be divided between them in proportion to the value of their respective properties, without stating any precise contract, and she insists that he appropriated to his own use more than his proportion, and claims an account. The evidence shews that the intestate managed his own and the defendant’s property in common, made produce and sold it, bought, sold and exchanged live stock and implements of husbandry, as circumstances and their necessities or convenience required, using the common fund when necessary. The probability is, that there was no stipulated .contract between them, and no allusion having been made .either in the bill or answer to any account, I presume none was kept, and it is much to be regretted that the parties could not have adjusted these matters between themselves, as from the nature of the circumstances, unless they should turn out differently from those usually attending a transaction of this kind, the Court will find it difficult to arrive at exact justice between them, and I would suggest the propriety of their consenting to refer the matters of account to some of their intelligent and respectable neighbors, who, from a personal knowledge of the condition and relation of these parties, will be more likely to arrive at the truth, than a Court governed by the strict rules of evidence; if this suggestion fails, a reference will be indispensable.
    It is ordered and decreed that so much of the bill as relates .to the complainant’s claim to an injunction to restrain the removal of the negroes named therein be dismissed, and if the parties, or either of them, shall signify to the Commissioner of the Court, that they decline to refer the matters of account to arbitration, that he do proceed to take and state the accounts .between them. The complainant, Mary B., having, as it is ■understood, obtained administration of the intestate since the ■filing of the bill. If, upon examination, he shall find that ■there was a special contract between the intestate and defendant, as to the proportions in which the income of their joint estates was divided between them, or any other by which their respective rights were to be determined, he .will, of course, be determined by that. If none, he will then ascertain what was the nett annual income, and in what propor.tions they are entitled, allowing the intestate a suitable compensation for his personal services in the management of their joint property. He will also ascertain in what sums the said parties are indebted to each other, and whether the defendant has in her possession any property which belonged to the intestate exclusively, or to them jointly; and inquire into and report all other matters that he may find necessary to a final settlement of their accounts.
    The complainants moved to modify the decree, on the grounds,
    That if Elizabeth Snoddy’s power of appointment has reference only to the time of making it, then Alexander Snod•dy had a vested interest at the death of his father, and the injunction should be continued.
    That if Elizabeth Snoddy had, as supposed, only the duty and power to appoint in such proportions as she pleased, uncoupled with personal interest, then the delay of appointment for nearly thirty years, is a forfeiture of her right, and the children living at the death of Samuel Snoddy had a vested interest, and they and their representatives are entitled to share and share alike, and .at least the injunction should be granted with leave to amend and make all necessary parties.
    That defendant had no interest under the will, as a mere trustee, and this Court is bound to execute the trust by .an equal division, she having failed in the duty imposed upon her by the will.
    That if she has the right to limit the proportion and fix the time of division, she takes an estate by implication, which is contrary to law and the true construction of the will, as complainants submit.
    That the said decree is in other respects erroneous, and should be corrected by the Court of Appeals.
    Henry & Dean, for the motion.
   Per Curiam.

This Court concurs in the decree, of the Circuit Court, and the appeal is dismissed.

Appeal dismissed.  