
    Langdon Cheves, Executor, vs. Charles F. Haskell and others.
    
      Wills and Testaments — Lapsed Devise and Legacy — Residuary Legacy.
    
    The testator devised and bequeathed his plantation, and other lands, with the slaves on the plantation and other slaves, to trustees, in trust to pay to his son, H., out of the profits, the sum of $3,500, annually, until the year 1860, and to pay the remainder of the profits to testator’s daughters; and then from .and after*the year 1860, in trust for the sole use of H. and his heirs forever. By a subsequent clause, the testator bequeathed to H. $5,000 out of the profits of the year 1860; and by the last clause, he devised and bequeathed the residue and remainder of his estate, real and personal, or in action, to his daughters. The devise and legacies to H. having lapsed by his death before the testator: held, that the lands devised to H. descended to testator’s heirs,-and that the personalty bequeathed to him, including not only the slaves but also the annual sums of money, passed to testator’s daughters.
    Where a devise and legacy lapse, the land goes to the heir, and the personalty to the residuary legatee, if there be one.
    BEFORE DUNKIN, CH., AT CHARLESTON,
    JUNE, 1858.
    The plaintiff, as the executor of the late Hon. Langdon Cheves, filed this bill, praying that the trusts of the testator’s will may be declared, and his estate settled under the direction of the Court. The testator died on the 27th June, 1857, leaving a last will and testament as follows:
    “In the name of God, Amen. I, Langdon Cheves, of South Carolina, do make, publish, and declare this to be my last Will and Testament, in manner and form following, that is to say: Imprimis: I give, devise and bequeath unto my sons, Langdon Cheves and Charles M. Cheves, my plantation on Ogeechee River, called by me South Field, in the State of Georgia, also the piece of land adjoining thereto, which I bought of Arthur Heyward; also the piece of land I bought of -Dorsey; and also a tract of land in Bryan County, which I bought of-Butler; also all the slaves now on the said plantation, and which may be thereon at the time of my death; also my cook, John, and his wife, Juliann, and their children, now born, or which may be born during my lifetime; also my house-servant, Sam, to them, the said Langdon Cheves and Charles M. Cheves, their heirs, executors and assigns; in trust out of the income and profits thereof to pay yearly, and every year, unto my son, Robert Hayne Cheves, the sum of three thousand five hundred dollars, until the year one thousand eight hundred and sixty, inclusive; and in the mean time to keep up in number and quality, by purchase, if necessary, the slaves which shall be thereon at my death, and to keep the buildings and machines thereon at my death in good repair, and to pay the remainder of the proceeds and profits of the said plantation and slaves to my daughters, Sophia, the wife of Charles T. Haskell,-Louisa, the wife of David J. McCord, and Anna, the wife of T. Pinckney Huger, and their issue equally, share and share alike, as tenants in common, and not as joint tenants, the same to enure and be settled to the same uses and limitations as the property heretofore settled on my said daughters respectively, at the time of their respective marriages. And from and after the year one thousand eight hundred and sixty, then in trust to and for the sole use, benefit and behoof of my said son, Robert Hayne Cheves, his heirs, executors, administrators and assigns, forever, free from, and discharged of, all further trusts and limitations.
    “Item. I give to my daughter, Louisa, my house-servant, Priscilla; also, my house and the land whereon it stands in the Sand-Hills near Columbia, with my library, carriage and horses, and the household and kitchen furniture, to hold to my said daughter, her heirs, executors, administrators and assigns, to enure and be settled to the same uses and limita. tions as the property heretofore settled on my said daughter, Louisa, at the time of her marriage.
    “Item. I give and devise unto my sons, Langdon Cheves and Charles M. Cheves, the piece of land on Whitemarsh Island in the State of Georgia, containing fifty acres, to them, their heirs and assigns, equally to be divided between them as tenants in common.
    “Item. I give and devise my farm on Charleston Neck, , usually called the Oaks, to my issue left living at my death, to be equally divided, share and share alike, the issue of any deceased child taking the share to which the parent, if alive, would have been entitled to; to them, their heirs and assigns forever, as tenants in common, and not as joint tenants; the share of my daughters to enure and be settled .to the uses and limitations contained in their marriage settlements, respectively.
    “Item. I give and bequeath to my daughters, respectively, all slaves given heretofore to them conditionally since their marriages; to enure and to be settled to the uses and limitations contained in their marriage settlements, respectively.
    “Item. I release and discharge my sons and daughters from any claims by bond, or otherwise, which I may have • upon them at my death.
    “Item. It is my Will, that if my sons and daughters, respectively, or their representatives, shall make any claims on, or on account of the estate or legacies derived by me under the will or deed of appointment of' Mrs. Ann Lovell, deceased, that then and in this case, my devise or gift herein given to them, respectively, shall be null and void.
    “Item. I give to my son, Robert Hayne Cheves, the sum of five thousand dollars, out of the profits of the year one thousand eight hundred and sixty, to provide for the expenses of the year, one thousand eight hundred and sixty-one.
    “Item. I give my wine, of which there is but a small quantity, to my sons, to be equally divided among them.
    
      “Item. As to the rest, residue and remainder of my estate, real and personal, or in action, I give, devise and bequeath the same unto my daughters and their issue; the same to enure and to be settled to the uses and limitations contained in their respective marriage settlements. Lastly, I nominate and appoint my sons, Langdon Cheves and Charles M. Cheves, executors of this, my last Will and Testament, hereby revoking all former wills and codicils by me heretofore made.
    “In witness whereof, I have hereunto set my hand and seal, this sixth day of November, Anno Domini one thousand eight hundred and fifty-four.
    LANGDON CHEVES. [l.s.]
    “Signed, sealed, published and delivered, by the testator as and for his last Will and Testament, in our presence, who in his presence, and in the presence of each other, have hereunto set our hands as witnesses thereto.
    S. MEIGHAN.
    H. C. THOMPSON.
    G. M. THOMPSON.”
    Robert Hayne Cheves died on the 14th August, 1856, and the questions made by the pleadings related to the devise and legacies to him, which had lapsed.
    The circuit decree is as follows:
    Dunkin, Ch. The facts of the case are few and simple, and the questions for adjudication are clearly and suscinctly stated in the pleadings.
    In consequence of the death of Robert Hayne Cheves in the lifetime of the testator, the devises and bequests in his behalt became ineffectual. In reference to the-real estate, the Court is not aware that any diversity of decision, or of opinion, has existed since the cases of Wright vs. Hall, and Roe vs. Fludd, cited by Mr. Jarman, 1 Jarm. Wills, 589. As to land, the will may be said to speak, as of its date. The testator can dispose of no lands to which he was not actually entitled at the time of making his will. Under the most comprehensive terms of gift, a devisee is not permitted to claim lands acquired by the testator subsequently to the date of his will. Every devise of real estate is consequently in its nature specific. The claim of the residuary devisee, must be referred to the date of the will. He is entitled only to that which is not expressed by the will to be given. In the language of Sir John Leach, in Jones vs. Mitchell, 1 Sim. and Stu. 290, he can take nothing but what is at that time intended for him. The devise to Hayne having lapsed, and the residuary devisee not being entitled, the land descended to the heirs at law of the testator. The disposition of the personalty bequeathed to Hayne, is not equally clear, although the general rule is very well established. It has been long settled, says Sir William Grant in Cambridge vs. Sous, 8 Yes. 190, “ that a residuary bequest of personal estate (for it is otherwise as to real) carries not only everything not disposed of, but everything that in the event turns out not to be disposed of, not in consequence of any direct or expressed intention; for it may be argued in all cases, that particular legacies are separated from the residue, and that the testator does not mean that the residuary legatee should take what is given frota him; no, for he does not contemplate the case: the residuary legatee is'to take only what is left; but that does not prevent the right of the residuary legatee. A presumption arises for the residuary legatee against every one except the particular legatee. The testator is supposed to give it away from the residuary legatee, only for the sake of the particular legatee. In case of lapse of real estate, the heir at law takes; but in the case of personal property, the residuary legatee is preferred either to the next of kin or the executor.” Fifteen years later, the same principle was re-affirmed by the same eminent judge in Leake vs. Robinson, 2 Mer. 363. The testator, by a general residuary bequest, has manifested an intention not to die intestate, as to any part of his estate. The construction is adopted to prevent an intestacy. In this way this general intention of the testator is carried into effect, although his particular purpose may have been frustrated by the act of God, or by the illegality of the bequest. It is not supposed that the testator contemplated the particular event. “No man supposes his legacies will lapse, or will not take place. It'is the case with all Lapsed legacies.” The authorities have been thus fully stated, not because the general doctrine was called in question, hut rather to exhibit the principle upon which it proceeds. As this principle is deduced from a presumed intention in favor of the residuary legatee, the presumption may be rebutted by the positive declarations of the will, or by manifest implication from other provisions of the instrument. Thus, in the attorney Generalas. Johnstone, Amb. 577, Lord Camden recognizes the general rule, but says, in order to entitle the residuary legatee to take every thing that does not pass by the will, he must be a general legatee. If the testator has circumscribed -and confined the residue, then the residuary legatee, instead of being a general legatee, becomes a specific legatee. If the testator had said, none of the legacies shall, on any account, fall into the residue, it would have excluded the residuary legatees from , taking the lapsed legacies. SucLi was not the case before him. But the testator gave ¿6100 to the Gast houses of Hamburg, if there remained enough of his personal estate to satisfy it, but if not, that sum ■ was. not to be paid; but he directed 'that the small remainder of his personal estate should be left to his executor to dispose of in favor of the charity schools of Hamburg. There were other expressions, indicating that he regarded the donation to the-charity schools a trifle. Lord Camden says: “ The testator clearly meant that the charity schools should take no more than a small pittance, if any such pittance should be left.” The residuary devise was declared to be specific and contingent, and not to carry a lapsed legacy amounting to £20,000. So, too, in Davers vs. Dewes, 3 P. Wm’s., 40, (before Lord Macclesfield) the testator, Lord Dover, among other things, declares, by way of proviso, that he will dispose of his furniture in Cheveley by a codicil, and then bequeaths all his personal estate, not disposed of or reserved to be disposed of, by his codicil, to his wife, the Lady Dover. Testator died without having made a codicil; and it was held that he died intestate as to the Cheveley furniture.
    The residuary gift in the will of Judge Cheves, is .in terms the most ample and comprehensive. Looking only to the language of the bequest, the Court would infer that the testator contemplated a benefit of no inconsiderable value. The residuary estate, real and personal, is given to his daughters and their issue; and it is provided that it should “ be settled to the uses and limitations contained in their respective marriage settlements.” While the terms of the residuary bequest itself are thus full, the Court has been unable to perceive else-whex-e in the instrument any evidence of intention to restrict the gift or repel the general presumption which arises in cases of lapse in favor of the residuary legatee. Some cases were brought to the notice of the Court, which were supposed to be analogous, and which would authorize the implication of a restrictive intention. All these cases may be'referred to the exceptional class of which Sir William Grant speaks in his judgment in Leake vs. Robinson: “I have always understood,” says he, “ that with regard to personal estate, every thing which is ill given by the will does fall into the residue. It may in words have been before given, but if not effectually given, it is, legally speaking, undisposed of, and consequently included in the denomination of residue. It is immaterial how it happens that any part of the property is undisposed of, whether by the death of a legatee .or by the remoteness and consequent illegality of the bequest. Either way, it is residue, and it must be a very peculiar case, indeed, in which there can at once be a residuary clause and a partial intestacy, unless some part of the residue itself be ill given.” Thus in Skrymsher vs. Northcote, 1 Swan. 566, Sir Thomas Plumer says: “Residue means all of which no effectual disposition is made by the will, other than the residuary clause; but when the disposition of the residue itself fails, to the extent to which it fails, the will is inoperative.” Lloyd vs. Lloyd, (also cited 4 Beav. 231,) was reluctantly decided by Lord Langdale, on the authority of Skrymsher vs. JYorthcole, recognizing the distinction between a legacy and a legacy given out of a share of the residue. Upon the same distinction Sir James .Wigram decided, Green vs. Pertwee, 5 Hare 244, although apart from this distinction the Vice Chancellor thought the testator had there clearly manifested his intention to create a special residue.
    In a previous clause of his will, the testator gave his daughters the surplus of the profits of the Ogeechee estate until the year 1860; and, after that period, the estate was to vest absolutely.in Hayne. The legacy to Hayne having lapsed by his decease in the lifetime of the testator, the general principle prevails, although it happened that the residuary legatee had an interest in the property, even if no lapse had taken place. As between the daughters and Hayne, the testator intended and provided that they should have no interest beyond the profits of the estate until 1860. But when that particular purpose was defeated, and the daughters were also residuary legatees, it is presumed that he did not intend to die intestate as to any part of his estate; and also that he knew the law that all personalty, not well given to the particular legatee, pssses into the residue. The Court concludes, then, that the personalty given to Robert Hayne Cheves passes to the residuary legatees.
    In reference to the bequest of the income until 1860, it must be regarded as personalty, and if it were necessary, it might, with much force, be maintained that it was a gift to the daughters, subject only to the charge in favor of Hayne. But as the daughters are also residuary legatees, they are entitled to the income, in any view that may be taken.
    Looking only to the will as affected by the general principles of law, such would be the construction of the Court; and under these circumstances no authority is perceived for the admission of parol evidence of the testator’s declarations as to - his intention, either in aid or modification of the construction. Nor would it be safe for the Court to deduce any conclusion from the will of 1848, a copy of which forms part of the pleadings. It is true that in that instrument, in devising lands and slaves to his sons, he provides for a lapse by the death of either in his lifetime,' without leaving issue alive at testator’s death; and he adopts the principle of the Statute of 1 Victoria, chap. 26, (2 Jarm App., 762,) as the law of'his will in reference to such lapsed devises and bequests. Other provisions of that will are materially different from those of 1854, and the sons, as well as daughters, are made residuary devi-sees and legatees. When it is said that, in the will of 1848, the testator not only indicated his desire that the real and personal property given to his sons should, in case of lapse, take the same, direction, but also that the sons and daughters should alike participate, it is replied with equal force, that the change in the residuary clause of the will of 1854 is direct and express, and the only effect of the argument would be to enlarge their interests as residuary legatees. Independent of any direct provision of the will, both parties suggested the inexpediency of allowing the real and personal estate to take a different direction. On the one hand, it was said that as the land certainly passed to the heir, the slaves were not intended to be separated from it. On the other hand, it was urged that the right of the heir to the land (if recognized) was founded on a narrow and artificial reason, and should yield to the advancement of the age, as witnessed in the provisions of the recent English Statute. All these arguments, ab incon-venienti, or of policy, are properly addressed to another department of the government. This Court has no authority to do more than to declare the law as it is found. The judgment of the Court is, that the real, estate included in the devise to Robert Hayne Cheves, descended, on the testator’s- death, to his heirs at law, and that the personalty bequeathed to him passes, under the last disposing clause of the testator’s will, to his residuary legatees.
    The answer of John Richardson Cheves, suggests that his deceased brother, Robert Hayne Cheves, “ stood in the legal relation of a creditor to his father,” and “claims (hypothetically) the benefit of an account of what is due to Robert Hayne Cheves.” The personal representative of the latter is no party-ill these proceedings, and no opinion can therefore be intimated, nor was, probably, expected.
    Parties are at liberty to apply, at the foot of this decree, for such orders as may be deemed necessary. Costs to be paid out, of the assets of the estate in the hands of the executor.
    The executor appealed and submitted to. the Court as reasons tor modifying the decree— -
    1. That the rule which prevails in case of an ineffectual devise of land is more consonant to reason than that which attaches to legacies, which fail to .have effect on account of the death of the legatee before the testator.
    2. That the presumption that the testator meant to include in the residuary bequest the estate devised to his youngest son, in case of his decease in his lifetime, is effectually repelled by the circumstances.
    3. That the will itself repels the idea that the real estate was to go one way and the personal another.
    4. That the legacy which is to be raised out of the land for the benefit of the youngest son, by the settled rules of construction, sinks into the laud when the legacy fails by lapse.
    5. That the gifts to the daughters of a portion of the income, is inconsistent with the idea of their taking the whole, and should merge in the estate they take by intestacy, especially if the construction adopted by the Court should prevail.
    
      Petigru, for appellant.
    
      McGowan, for residuary legatees.
    
      
      First. — The will as to personal property speaks at the death of the testator, and the residuary legatee takes, not only what was undisposed of by the expressions of the will, but that which becomes undisposed of at the death by disappointment of the intentions of the will. This rule is perfectly well settled both in England and America. Jones vs. Mitchell, 1 Sim. and Stu. 290; Cambridge vs. Rous, 8 Ves. 12; Broum vs. Higgs, 15 Ves. 709; 1 Jarman on Wilis, 587; Vanchek vs. Dutch Church, 6 Page 600; 1 John Ch. 498; Breithaupt vs. Bausket, 1 Rich. Eq. 465; Martin vs. Thomson, 1 Strob. Eq. 370; Oodard vs. Wagner, 2 Strob. Eq. 1; Lessly vs. Collier, 3 Rich. Eq. 125.
    This rule is the same, whether the testator knew of the lapse or not. The principle is that the will as it stands provides for the case, and needs no new provision. Durour vs. Matteux, 1 Ves. Sen. 321; Kennell vs. Abbott, 4 Ves. 802; Hatcher vs. Robertson, 4 Strob. Eq. 119.
    The testator’s ignorance of the event, upon which the lapse takes place,.makes not the slightest difference. Nor does it alter the case, that the personal property is coupled with realty, and given by the same clause. Leake vs. Robenson, 2 Mer. 363. It is no new thing iu the English law, that one rule shbuld apply to personalty and another to the realty, although given in the same clause. Thus it is iti reference to limitations over. Forth vs. Chapman, 1 P. W. 665; Mazyckvs. Fanderhorst, 1 Bail Eq. 48.
    
      Second. — Assuming that a different rule applies to the realty, and that in case of lapse, that goes to the heir, it is denied that this rule is better established than the one which attaches to personalty or “ is more consonant to reason.”
    1. The rule as to the personalty grows out of the very nature and character of wills, which are ambulatory and take effect at the death. A devise of land is made an exception, for it is considered not so much in the nature of a testament as of a conveyance.
    2. The rule as to the personalty is presumed to be according to the intention of the testator. Personalty lapsed passes under the will and realty against it — the one by the intention of the testator, the other by the force of law.
    3. The rule as to the realty tends to abridge the testamentary power, whilst the other rule upholds it in all its integrity.
    4. The reasons for the rule in England — growing out of feudal tenures and a landed aristocracy, do not exist here, especially since the abolition of the law of primogeniture.
    5. In this country one class of personal property — negroes— is as valuable and possibly more valued than land. The same rules of distribution apply to both, and both are made liable for debts. It is impossible to give a satisfactory reason for making land an exception from all other property in this country.
    6. Personal property has been gradually rising in the scale of importance, and in the same proportion the artificial rules in reference to land have been gradually relaxing, and identifying themselves with the more liberal and sensible rules in reference to personalty. From the Norman conquest until the passing of the statute of wills 32 and 34 Henry Sth, there existed no testamentary power over land. Until the passing of the statute 1st Victoria land acquired after the execution of a will, would not pass under it; but now precisely the samo rule applies to land as to personalty.
    7. England abandoned her own arbitrary distinction in the statute of 1st Victoria, and we have very lately done the same thing — until the Act of the last Legislature we were more English than the English themselves. Their statute 1st Victoria provides XXIV Section, “That every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” Section XXV. “And be it further enacted, That unless a contrary intention shall appear by the will, such real éstate or intérest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the life-time of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary ' devise (if any) contained in such will.” 2 Jarman on Wills, 541.
    Such is the English law, and such ought to be our law. Perhaps the Act of the last session will, come to .this, but it would have been better if it had contained a section like the 35th of 1st Victoria. We think then we have a right to say that the rule as now established “ is more consonant to reason.” At least that is the judgment of England and South Carolina.
    
      Third. — This rule, then, being well established, whether the lapse was known to the testator or not, and notwithstanding the personalty and realty were given as one estate and under the same clause; the only other question which can be made is, whether the will itself or the circumstances limit the residuum so as to make it a particular instead of a general residuum.
    
    As to this question the onus is upon the heirs at law. We think we have established the principle. They must establish the exception. We maintain the negative.
    1. The terms of this residuary clause are very full and ample, “ rest, residue and remainder of my estate, real and personal, or in action,” without the usual words, “ not herein-before given.” The testator must have contemplated a benefit of no inconsiderable value. The residuary estate is given to his daughters, “ to be settled to the uses and limitations contained in their respective marriage settlements.”
    3. The will seems to dispose of every thing specifically— previous gifts are confirmed. The wine is given to be divided among the sons. No accounts were to be brought against the estate under the pain of forfeiture. It is difficult to perceive any thing in this will of a restrictive character, or what the residuary clause was inserted for, unless it was to meet just the case which has arisen.
    
      3. Old will rather helps us. It does indicate that Judge Cheves was familiar with the law of lapse, and had thought of its application to his will; and that having this practical application before his eyes, he expressly limited this provision to his daughters. He probably intended that in the event which has happened, his daughters should take the land as well as the personalty.
    4. We cannot perceive a scintilla, either in the will itself or in the circumstances, tending to restrict this residuum, or bring this case into the class of exceptions.
    
      “ Any thing I have forgot,” held not to cover subsequently acquired property. Pray 8? Pickett vs. Barber, 1 Hill, Ch. 95. Blund vs. Lamb, 2 Jacob and Walk, 399.
    “ I do hereby leave all the rest of my property that is not above mentioned, such as horses, cattle, &c.,” money on hand passed. Stucky vs. Stucky, 1 Hill, Ch. 308.
    If it be manifest from the contents of the will, that the residuary beqttest was of a particular fund or description of property, or other certain residuum, nothing else will pass Garrett vs. Garrett, 1 Stro. 96.
    Should my niece outlive my son, then all my property, both real and personal, &c., held a general residuum. Dough-erty vs. Dougherty, 2 Stro. 63.
    All the rest of monies, 8,'c. Buist vs. Dawes, 3 Rich. 281.
    All the property which I possess and have not bequeathed, be sold, &c., a reversionary interest did not pass. Glover vs. Harris, 4 Rich. 25.
    This last case is a good example of a restricted residuum. The property not before bequeathed was ordered to be sold. The negroes were bequeathed, but the reversionary interest in them was not. If there had been nothing else in the case, it would have been extremely doubtful whether the word bequeathed would have saved the reversionary interest from the operation of the residuary clause. But the property — the residuary property — was ordered to be sold at the testator's death, and as a life estate was given in the negroes bequeathed, it is clear that the residuum was restricted io such property as could be sold at his death.
    
      Fourth. — The annual provision for Hayne until 1861, also lapsed by his death before his father, and goes to the daughters, under the will. The daughters are entitled to this provision in any view that can be taken, either by direct bequest to them or under the residuary clause.
    1. They — the daughters — are certainly entitled to all the “ remainder” of the income over the $3,500,'annually. ,The property is willed to trustees (who are living) for the use of the daughters, in direct terms, so far as the “ remainder” is concerned. As to this they are equitable, but direct legatees.
    
    
      2. Under the bequest of the “ remainder,” they are, by the accident of Hayne’s death, entitled to the whole as legatees. For after the failure of the provision for Hayne, it is all“ remainder.” The failure of Hayne’s bequest only enlarges their share.
    3. The land and negroes are undoubtedly well given until 1861. The daughters are the beneficiaries until that time, and they are, besides, the residuary legatees. Here the old and vexed question between the devisee and heir at law cannot arise as to the income. The heir at law can have no interest even in the land until 1861. There is no lapse of any interest prior to that time. It is not the devise of Hayne that is charged, (if it is a charge at all) but it is the estate of the trustees, or, in effect, the estate of the daughters. “ If an estate be devised, charged with legacies, which fail, no matter how, the devisee shall have the benefit ,of them.” Roper on Legacies, 340.
    This would be the result if the provision for Hayne was in fact a charge. But it is not, in any sense, a charge upon land. It is simply a direction to pay the proceeds of land and negroes — being in the shape of money — to a named person. The land is not to be sold to raise the money, but' the land and negroes by their joint operation, are to produce it. It is as much a charge on the negroes as on the land. Doubtless their services in producing it, must be more valuable than the use of the land. Money is personalty, and it was given as money, and having lapsed, must go to the daughters either as direct or residuary legatees. “ Where realty and personalty is directed to be equally divided among three individuals, and one of them dies in the life time of the testator, the share of such one so deceased, sinks into the residuum.” 1 Jarman, 294. Frazier vs. Frazier, 2 Leigh. 642. Nelson vs. Moore, 1 Ired. Eq. 31.
    The cases of Dougherty vs. Dougherty, 2 Strob. Eq. 63, and Brailsford vs. Heywood, 2 DeS., 18, both refer to intermediate rents and profits. In the latter case there was a devise of real and personal estate for wife during life, and at her death to the testator’s youngest child, who should attain twenty-one. The wife died and there was an interval before any child attained to twenty-one — the rents and profits in the interval went with the estate. The other case named was also in reference to rents and profits, and both were given to the residuary legatee.
    We will not argue the question whether the land ought not also to pass to the residuary legatees. We suppose hereafter there will be no doubt about that question, but in this case we are content with the decree, and hope the appeal will be dismissed.
   The opinion of the Court was delivered by

Johnston, Ch.

It is not deemed necessary to make any observations, except on the fourth ground of appeal.

It may be admitted as a general principle, that in the absence of other testamentary disposition, a legacy directed to be raised out of the rents and profits of land, sinks in favor of the heir into the land when the legacy lapses by the death of the legatee.

The legacy to which this ground was intended to apply, has been explained, in argument, to mean the legacy of part of the income of the plantation and slaves (not income of land, by the by, but of a mixed property,) to Robert Hayne Cheves, anterior to the year 1860. By the first clause of the will the trustees are directed to pay the sum of $3,500 to this legatee yearly, until 1860. inclusive, and in the meantime to keep up, by purchase if necessary, the number of slaves which might be on the place at testator’s death, and keep up the machines ; and then to pay the remainder of the proceeds and profits of the plantation and slaves, to testator’s daughters Mrs. Haskell, Mrs. McCord and Mrs. Huger, and their issue, according to the terms of their marriage settlements. In the opinion of the Court this is a good bequest to the daughters of the profits of the land,, subject only to so much as might have been employed for the other purposes indicated in the clause; and that the death of Robert Hayne Cheves, by which his legacy lapsed, only removed an incumbrance out of the way of the daughters.

By a subsequent clause the testator gave to the «ame son $5,000, out of the profits of 1860, to provide for the expenses ofthe year 1861. Then he gave the rest, residue andremainder of his estate, real and personal, or in action, to the same daughters and their issue, upon the same terms. This legacy, it is conceived, lapsed into and passed under the residuary clause, as might also have been affirmed of the annuity of $3,500, had there not been a provision in the will for the residue of that special fund.

It is ordered that the appeal be dismissed, and the decree, affirmed.

Dunkin and Wardlaw, CC., concurred.

Appeal dismissed.  