
    *Morris and Wife v. Owen and Wife and Edwards et e Contra.
    [April Term, 1801.]
    Power oí Appointment — “Children.”—Testator devises slaves and personal estate to his wife, during widowhood, and then to he divided, at her discretion amongst his children. The wife gave one of the slaves, in 1774, to one of his children, by parol gift: It was a good execution of the power as to that slave.
    Same — Same—“Grandchildren.”—The wife could not, under the power appoint to the testators grandchildren :
    Same — Same—Statute ' of Distributions. — And the part of the property which was ineffectually appointed, or not appointed at all, remained as part of the residuary estate of the testator undis-posed of by his will; and ought to be divided amongst his children, according to the statute of distributions.
    This was an appeal from a decree of the High Court of Chancery. Where Richard Brown Owen and Susanna his wife, and John Edwards, brought a suit against Henry Morris and his wife, Mason, who was a daughter of Heqry Simmons deceased; and against the grand children of the said Henry Simmons deceased.
    The bill states, that Henry Simmons by his last will devised, as follows, “Item I leave to my dear and well beloved wife Susanna, during her widowhood, the plantation whereon I now live, with the lands below- the school house branch; 'together with the negro slaves here mentioned, Moses, Cupid, Sam, Jemmy, David, Phillis Phoebe, Palunce, Isaac, Jacob, Amy with their future increase; likewise all my stock of all kinds, after the legacies hereafter mentioned, and all my household furniture to dispose of among my children as she thinks proper:” And after other specific legacies, “Item my intent and meaning is, that my well beloved wife Susanna Simmons shall enjoy the labor of the slaves given during widowhood, may be during her life, with their future increase, and then to be divided, at her discretion, amongst mj children.” That Susanna Edwards, one of the testators children, was living at his death; and that his widow, in pursuance of the power, appointed and disposed of one of the said slaves (named Joan) and her increase to the said Susanna Edwards, to take effect, *in possession, after the death of the said widow, who reserved, to herself, the use of the said slave and increase, during her own life. That the plaintiffs Susanna Owen and John Edwards are the only children and legal representatives of the said Susanna Edwards, who died intestate.
    That the said, Susanna Simmons, the widow, afterwards, had her will wrote; and thereby, in pursuance of her power, devised four of the first mentioned slaves to the plaintiff Susanna, and her sister Martha; who is, since dead intestate, leaving the plaintiffs Susanna Owen and John Edwards her co-heirs. That she, at another time, directed the writer of her said will to insert some other bequests, but expressly desired, that just mentioned to be retained unaltered. That the writer, through hurry and mistake in copying the original draft, left it out. That the will was executed, without being read to the testatrix; and therefore, although admitted to record since her death, is not the last will of the said testatr-ix: But, if it is, that still the plaintiffs have sustained an injury thro’ accident. That, of all the children of Henry Simmons the testator, only Mason the wife of Morris was alive, at the death of the said Susanna Simmons, the widow: Who, by her said will, devised sundry of the first mentioned slaves to the said Mason; and others of them to the descendants of the other children of the said Henry Simmons, except the plaintiffs Susanna and John; who were deprived by accident as aforesaid.
    That the plaintiffs Susanna and John are entitled to the first appointment df the slave Joan; and to the four intended to be devised, if the said .instrument is the last will of the said Susanna Simmons, the widow. Or if it is not; that then they are entitled, under the statute of distributions, as representing their mother.
    The answer of Morris and wife, denies the appointment of the slave Joan. Admits the defendants *have heard of the said first will being drawn but not executed, by the said Susanna Simmons. States that a will was, afterwards, duly made, and executed by her; which devised one of Joan’s children, by the name of Moses, to the plaintiff. John. That the defendants have heard, the testatrix intended to insert a clause in favour of the complainants, but know nothing of their own knowledge, and call for proof, if the allegation is material. Admits that the defendant Mason was the only child, living at the testatrix’s death; and submits to the decision of the court. General replication and commissions.
    A witness says, that she was present when the will was written : That it was not read to the testatrix; nor did she read it herself.
    Another witness speaks to the same effect as the last; and adds, that his father carried the will home. So that the testatrix never saw it, afterwards.
    A third witness says, that in 1774 she was called by Mrs. Susanna Simmons to take notice, that she gave Joan (who was then present) and her increase to her daughter Susanna Edwards; reserving her own life therein. That sometime afterwards Susanna Edwards wished to carry the slave home, but Mrs. Simmons refused, saying that she would never give them, out of her own possession, during her life.
    A fourth witness says, that in 1791, Mrs. Simmons asked him to write her will; which he did; but no witnesses being present, she deferred executing of it, until another time. That she did not carry a copy of it with her, but the deponent sent it to her a few days afterwards. That in 1793, Mrs. Simmons sent for him, and told him she wished some alterations in the will; which he found still unexecuted. That the deponent wrote the alterations; but his mind was agitated on account of his wife, who laj' dangerously ill; and he does not ^recollect, that he read over the transcribed copies to the testatrix. That the clauses, in the old will, were numbered ; and he did the same in the new, making them equal; without adverting to the additional bequests; whereby, the devise to the complainants was omitted. Ee-cites the clause and says, that the slaves, mentioned in it, he knows were once intended for the plaintiff Susanna, and her sister Martha; although Mrs. Simmons, afterwards altered her mind as to Moses, and gave to the plaintiff John.
    A fifth witness says, That after the death of Susanna Edwards, she heard Mrs. Simmons say, she was sorry she had not given Joan to her, while living; as she feared, she could not give her to her children, now she was dead.
    The will of Susanna Simmons (whereof the defendant Morris was appointed executor) gives a considerable proportion of the property to the defendant Mason. It also devises some trifles to the plaintiff Susanna, and her sister Martha.
    The Chancellor decreed that the parol gift of Joan and her increase to Sitsanna Edwards was good. And being of opinion that the plaintiffs could not claim her and under the will too, waived deciding the other points relative to the paper being a will; and, if a will, as to the right of correcting it.
    The defendants appealed to this Court; and so did the plaintiffs.
    Wickham for the appellants.
    The parol appointment, if good, is not sufficiently proved. Eor there was a previous alteration between Mrs. Edwards and her mother, at the time of the supposed gift; and after the death of Mrs. Edwards, the mother expressed her concern, that she had not given her a slave, during her lifetime; as she feared she could not now give it to her children.
    Besides, in order to make a gift effectual, it should be accompanied with a delivery of possession; ^otherwise, it amounts only to a mere intention, and is liable to be revoked. Want of possession therefore defeats the whole act.
    But if the parol gift were complete in all respects it was still void, under the act of Assembly, for preventing fraudulent gifts of slaves.
    The claim for a provision under the will cannot be supported. Eor although it might have been doubtful, whether, if the object of the intended appointment was capable of taking at the time, the court would not have supplied the defective act, yet that question is not worth discussing in the present case; because the objects were incapable of taking. For grand children cannot be substituted for children, under such a power as this. Alexander v. Alexander, 2 Vez. 240; Adams v. Adams, Cowp. 651; Robinson v. Hardcastle, 2 Bro. Ch. cas. 30, 344. The last case shews, that Morris maj take the benefit of the devise, and a share of the surplus too.
    Call contra.
    The gift is proved expressly ; and the subsequent declarations of Mrs. Simmons did not destroy it. For it was not in her power to defeat the appointment, when once made.
    Possession was not necessary to be delivered. Because the gift was not to take effect, in possession, until after the death of the mother. It was therefore a mere gift of a remainder; which does not require actual tradition of the property. In this case, possession was, in fact, given, as far as the nature of the thing would admit of; because the slave was present, and the gift was attended with every circumstance, which could serve to shew a disposing mind.
    The statute respecting fraudulent gifts of slaves has no influence on the question. For the difference is, where an interest passes from the person making the appointment, and where it does not. The first requires the forms of the statute, but the other not. Pow. Powers 84. But here no interest *passed from Mrs. Simmons; because the devise to the children was absolute, and the mother had only a power of controuling it. So that her power was only collateral, and the exercise of it rather tended to divest the rights of the others, than to transfer a new interest to the appointee.
    Besides it is a case not within the policy of the act; which was made to prevent owners, from making fictitious gifts of their slaves, to the prejudice of creditors and purchasers. But here Mrs. Simmons was not owner, and therefore the statute did not apply to her. For neither a creditor, or purchaser, could complain of deception, with regard to property, which she never owned; and with respect to which, she was only a third person, exercising a collateral power over an estate, which belonged to another person.
    The will of Mrs. Simmons was void; because neither written by herself; nor wholly dictated by' her at the time; nor read by herself, or to her, after it was written.
    But if the court should be of opinion, that the parol appointment was insufficient, and that the will is good, but the grand children could not be substituted for children, then the plaintiffs were entitled to their mothers share of the unappointed surplus: Which ought to be decreed them.
    Wickham in reply.
    If there is any question about the validity of the will of Mrs. Simmons, there should be an issue. But there is none, for it was written in her presence, and by her direction. The gift of the remainder of a slave without possession delivered, would not be good. In order to render it effectual the" donor should deliver the slave to the donee, with a stipulation, that the donee should redeliver it to the donor, for his life. The act of fraudulent gifts does apply to' the case. For if a purchaser were to examine' the, will of Henry Simmons, and then to fee a regular transfer • from Mrs. Simmons in writing, he would be led Mo venture his money; although there might be a secret conveyance by parol, which was unknown to him.
    Call. The statute neither in words or intention embraces a case of this kind; for it relates to owners only.
    
      
      Power of Appointment — “Children” — “Grandchildren.” — The principal case is cited with approval in Hood v. Haden, 82 Va. 595, for the proposition that a power to appoint to children will not authorize an appointment to grandchildren or other persons, unless a contrary intention appears from the instrument creating the power.
      Same — Same—Same.—So also, the principal case cited approvingly in Hudsons v. Hudson, 6 Munf. 356, for the proposition that where a power is given to a trustee to distribute an interest among all the children he cannot give it all to one, nor wholly exclude any, nor can he appoint any part of the subject to the grandchildren of the testator; and an appointment violating this principle will be avoided in equity, and the property distributed among the children and their representatives.
      The principal case is cited in Hood v. Haden, 82 Va. 596, See also, Knight v. Yarbrough, Gilm. 27.
      neaning of Word “Children.” — Thus, the principal case is cited in Vaughan v. Vaughan, 97 Va. 328, 33 S. E. Rep. 603, for the proposition that the word “children” in its legal as well as in its ordinary and popular sense, means the immediate offspring of a man or woman, and does not include grandchildren or more remote descendants. -The term is never used to include grandchildren or other persons than immediate descendants, in the absence of something showing a contrary intent. See foot-note to Tebbs v. Duval, 17 Gratt. 349; and the principal case cited in Bernard v. Hipkins, 6 Call 104.
    
    
      
      Power of Appointment — Children—Statute of Distributions. — In Milhollen v. Rice, 13 W. Va. 562, the court says: “The case of Hudson v. Hudson’s Adm’r et at. was a case very similar to this. The testator by his will gives his slaves to his wife, for life, and directed, that the same should be disposed of, after her death, among his children, as she should think proper. The slaves, undisposed of by her, it was decided, should be divided among his children and-their representatives. But it should be here noted, that the court, though they refer to Morris v. Owen, 2 Call 520, carefully avoid saying, that it went to his children, as property undisposed of by his will, as was said in Owen v. Morris.
      
      “The inference I draw is, that the court had discovered the error, into which they had fallen in this case' from inadvertance, the question being unimportant. It is true they do not say, in Hudson v. Hudson’s Adm’r et at, in what capacity the children are to take the slaves; but their omission to say, as in the other case, that they took as distrib-utees of the testator, justifies us in concluding, that they regarded them as taking as legatees under the will, or in other words, that the power given was a power in the nature of a.trust. This inference is strengthened by other things said in their .opinion. It may be regarded therefore as destroying any influence in this case before us, that the unnecessary expressions in the opinion of the court in Morris v. Owen, 2 Call 520, might have had.” The principal case is cited in Milhollen v. Rice, 13 W. Va. 661.
    
   Per Cur.

The Court is of opinion, That there is no error in so much of the decree, as establishes the Verbal gift, made by Susanna Simmons to Susanna 'Edwards, one of the children of Henry Simmons, of the negro girl Joan, and her increase; and as adjudges the same a good appointment of the said slave to the said Susanna Edwards, pursuant to the power given to the said Susanna Simmons, by the will of her husband Henry Simmons in the'decree and proceedings mentioned; nor as orders the appellant Henry Morris, to deliver to the appellees, and the said David Jackson, the said slave Joan, and her increase; and to account for their profits: But that there is error in so much of the said decree as declares and determines, that the appellants-are not entitled to any other part of the estate, which' the said Henry Simmons, empowered his widow, to distribute amongst his children: This Court being of opinion, That so much, of that part of the said Henry Simmons’s estate, as'was'not, by proper act or deed, distributed, by the said Susanna Simmons, to and amongst the children of the said Henry Simmons, in execution of the power aforesaid,, remained as part of the residuary estate of the said Henry Simmons, undisposed of by his will; and ought to be divided amongst all his children, according to the directions of the statute, made for the distributions of in-testates estates: That the said Susanna Simmons had no authority, ' under the power given by the said willj to distribute, or appoint, any part of the said estate to grand children, or to any person or persons, other, than thé children of the sáid Henry Simmons: That the appellants are entitled to a distributive share of the

*residuary estate of the said Henry Simmons their grand .father^ in right of their mother Susanna Edwards deceased, who was one of the children of the said Henry Simmons; and that, after an account thereof' taken, their distributive share, or shares, thereof, should be decreed to them, according to law. Therefore so much of the said decree as is before stated to be erroneous, is' to be reversed, with costs; but the residue is to' be affirmed: And the cause is to be remanded, to the High Court of Chancery, for further proceedings to be had therein, according to the principles of this decree.  