
    
      The Executors of William Seabroook, dec'd. vs. Elizabeth E. Seabrook et al.
    
    The testator, by the 12th clause of his 'last will, declared, that in order to make provision for the five children by his “ present” marriage, his executors, or such of them as should qualify and act on his will, shall, as soon as may he convenient, or as the same may he deemed advisable, lay out and invest the sum of one hundred thousand dollars, in the purchase of lands and negroes, for the use of his estate. After directing that the lands and negroes, so to be purchased, together with certain other lands and negroes, should be kept together, and improved to the best advantage, until his eldest child, by this marriage, should attain to the age of twenty-one years ; he then directs that all the lands of his estate, not before specifically devised, the lands and negroes, so to be purchased by his executors, and four-sevenths of the negroes which he then owned, should be divided into five equal shares, among his said five children, allowing an equal portion to each. One of the said shares he devised to each of his said children, as they should respectively attain the full age of twenty-one years, with limitations on the land, hereinafter mentioned. After providing that the income of those under age, should fall into, and form a part of the testator’s residuary estate; and that eacli child, during minority, should receive only a proper education anda reasonable maintenance and support, out of the income of the said estate — he devises, “ to each of the said children, as they, severally •and successively, reach twenty-one years of age, the share, or portion of lands, that may ■be allotted to them, respectively, for and during their respective natural lives; and from and after the deaths, severally, of the said children, to the issue of each, in the manner therein particularly declared. And should any, or either of them, (the said five children,) respectively, depart this life, without leaving lawfully begotten issue, living at the time of his, her, or their deaths, respectively, who shall live to attain the age of twenty-one years, or dying before that time, leaving lawfully begotten issue, to live until the parent, ■if alive, would have reached twenty-one years of age — then the share, and shares, respectively, in the lands of such child, or children, respectively, so dying, shall revert to my estate; and I give, devise, &e., the share and shares of the said lands, so reverting, unto my own right heirs, forever. It being my wish and will, that the shares in my said lands, given to my said five children, respectively, shall go to their issue, respectively, so long as the law will permit the said lands to be so limited, and no longer. And that on the failure of their said issue, respectively, within the period so limited, the share and shares in the said lands of such issue, and of such issues, so failing, shall revert to my •estate. The issue of any one of my said five children, not inheriting, or taking under this will, from any other of my said children, except so far as on the happening of the ■contingencies here contemplated, they, the said issue, or any, or either of them, may be the right heirs of me, the said William Seabrook.”
    Joseph E. Seabrook, one of the five children of this marriage, died under age, and unmarried; and the widow of the testator insists that, by a proper construction of the will, she is entitled, as one of the right heirs of the testator’s will, to one-third of the share of the lands which were to be allotted to J. E. Seabrook, and the ten children surviving the testator, (of whom Joseph was one,) to the other two-thirds ; or if excluded as one of the right heirs of the testator, she is entitled, as an heir of her son, J. E. S., to ■a proportion of one-tenth of his share, which vested in him.
    It was held, among other things :
    1. That Joseph Edings Seabrook took no interest in the lands.
    
      2. That the widow was included within the description of the right heirs of the tes. tator.
    3. That on the death of J. E. S., his share of the real estate passed to the right heirs of the estate.
    4. That the widow, accepting the share allotted to her by the first clause of the testa, tor’s will, which declares that this shall be in lieu and bar of dower, &c. &c., and when a distinct and separate provision was made for her — she is excluded from insisting on her right, acquired under the statute, and by mere operation of law. It is altogether a ques. tion of law, and not of intention.
    5. That the bequest of the negroes to J. E. Seabrook, did not vest an absolute interest in him, at the time of the death of the testator.
    6. That by the codicil, what remains, after satisfying the twenty thousand dollars, (willed for charitable purposes,) is distributable among the children of the testator generally.
    7. That the residuary clause of the codicil repealed, or modified, the residuary clause of the will.
    
      This case was heard before Dunkin, Chancellor, at Charleston, June Term, 1839, toko made the Decree, following.
    
   By the twelfth clause of William Seabrook’s will, it is declared as follows: “ In order to make a proper provision for my children, by my present marriage, Robert Chisolm Seabrook, Joseph Edings Seabrook, Caroline La Fayette Seabrook, Martha Washington Seabrook, and Julia Geor-giana Seabrook, I will, order and direct, that my executors hereinafter named, or such of them as qualify and act on this will, shall, as soon as may be convenient, or as the same may be deemed advisable, lay out and invest the sum of one hundred thousand dollars, in the purchase of lands and negroes, for the use of my estate.” After directing that the lands and negroes, so to be purchased, together with certain other lands and negroes, should be kept together and improved to the best advantage, until his eldest child, by the present marriage, should reach the full age of twenty-one years; he then directs that all the lands of his estate, not before specifically devised, the lands and negroes, so to be purchased by his executors, and four-sevenths of the negroes which he then owned, should be divided into five equal shares among his said five children, allowing an equal portion to each of his said children ; and gave, devised and bequeathed, one of the said shares to each of his said children, as they should respee-tiveiy attain the full age of twenty-one years, “ with the limitations on the lands hereinafter set forth.” After providing that the income of the shares of those under age, should fall into, and form a part of the testator’s residuary estate, and that each child, during minority, should receive “ only a proper education, and a reasonable maintenance and support, out of the income of the said estate,” he devises to each of the said children, as they, severally, and successively, reach twenty-one years of age, “ the share or portion of lands that may be allotted to them, respectively, for and during their respective natural lives ;” and from and after the deaths, severally, of the said children, to the issue of each, in the manner therein particularly declared. “ And should any, or either of my said children, respectively, depart this life, without leaving lawfully begotten issue, living at the time of his, her, or their deaths, respectively, who shall live to attain the age of twenty one years, or dying before that time, leaving lawfully begotten issue, to live until the parent, if alive, would have reached twenty-one. years of age, then the share and shares, respectively, in the said lands of such child, or children, respectively, so dying, shall revert to my estate; and I give, devise and bequeath, the share and shares of the said lands, so reverting, unto my own right heirs forever. It being my wish and will, that the shares in my lands, given to my said five children, respectively, shall go to their issue, respectively, so long as the law will permit the said lands to be so limited, and no longer. And that on the failure of their said issue, respectively, within the period so limited, the share and shares, in the said lands of such issue, and of such issues, so failing, shall revert to my estate. The issue of any one of my said five children, not inheriting, or taking under this will, from any other of my said children, except so far as on the happening of the contingencies here contemplated, they the said issue, or any or either of them, may be the right heirs of me, the said William Seabrook.”

The first question submitted for the consideration of the Court, is, whether the executors are bound to invest the sum of one hundred thousand dollars in lands and negroes, or are at liberty make the investment in such other mode as they may deem advisable. On this point, it seems only necessary to say, that the Court concurs in the construction which the executors have, themselves, given to the lauguage of the testator. He has determined the character of the investment, and left to their discretion only the time at which it shall be made.

Joseph Edings Seabrook, one of the children by the second marriage, departed this life, under age, and unmarried, in June, 1838. It is insisted, on the part of Mrs. Seabrook, the widow of the testator, that, by the true construction of the will, ' she is entitled, as one of the right heirs of the testator, to one third of the lands which were to be allotted to Joseph Edings Seabrook; and the ten children, who survived the testator, (of whom Joseph E. Seabrook was one,) to the other two-thirds. But that, if she should be excluded as an heir of the testator, she is, in any event, entitled, as an heir of Joseph E. Seabrook, to a proportion of the one-tenth, which vested in him.

It is proposed, first, to enquire, whether any interest in the lands vested in Joseph Edings Seabrook. After the very elaborate discussion which this subject underwent, in the argument of Cholmondeley vs. Clinton, 2 Mer. 171, it would be an act of supererogation on the part of the Court, to collate the authorities which have been adduced. Certain general principles are, however, admitted in all the cases. None is more clear than that, even in the construction of deeds, the obvious intention shall prevail, provided it is not inconsistent with the settled rules of law. In one of the cases cited for the defendant, Donner vs. Parkhurst, Willes, 332, it is said by the Chief Justice, “I admit, that, though the intent of the parties be ever so clear, it cannot take place contrary to the rules of law, nor can we put words in a deed which are not there, nor put a construction on the words of a deed, directly contrary to the plainest sense of them. But where the intent is plain and manifest, and the words doubtful and obscure, it is the duty of the judges to endeavor to find out such a meaning in the words, as will best answer the intention of the parties.” It is also a rule, for the reasons stated by Mr. Justice Bailey, in Doe vs. Maxcy, 12 East. 589, not to read limitations in a will, as being a contingent remainder, unless such appears to have been clearly the intention of the testator. But this preference of the Court, in favor of vested remainders, is never permitted to operate so as to exclude an ascertained object of the grantor’s or testator’s intention. In Holloway vs. Holloway, 5 Ves. 401, (the case on which the defendant chiefly relied,) it is said by the Master of the Rolls, “unquestionably it is competent for a testator, if he thinks fit, to limit any interest to such persons as shall, at a particular time, named by him, sustain a particular character.”

The question then, is, whether the terms, right heirs of the testator, are to be confined to those who were his right heirs at the time of his death, (in which case they took nothing by the will,) or are intended to designate a class of persons, who, on the happening of a particular contingency, would come within the description. In order to satisfy this enquiry, it is competent for the Court, and indeed, is its duty, to look through the whole instrument. The testator makes a marked distinction between his real and personal estate. In respect to the latter, an absolute estate is given to the legatees, so soon as they shall, respectively, attain the age of twenty-one years. The interest in the lands is restricted to a life estate in the first taker. And, as was observed in the argument of Long vs. Blackall, 3 Ves., an anxious desire to keep this property in his family as long as he could, is apparent, in every clause of the instrument. In the fourth clause, lands are devised to his son, George Washington Seabrook, during his natural life, with limitations to his issue; but, on failure of the issue of the said George W. Seabrook, within the time limited, then, and in that case, he devises the lands, absolutely and forever, unto the right heirs of him, the said William Seabrook, who shall be living at the time of the failure of the said issue of his son, within the time limited, as aforesaid ; “ it being my wish, as I think the lands men- . tioned in this clause' of my will, are among the best lands in the State of South Carolina, that they may remain limited in my family as long as the law will permit.” In the clause devising lands to the children of the second marriage, the desire of the testator, that the interest of the first taker should be restricted to a life estate, and that the lands should remain limited in his family as long as the law would permit, is manifested by language of even a stronger character, superadded to similar limitations with those in the fourth clause. On failure of issue of either of the children, within the time limited, it is provided, that “ then the share in the said lands of such child, so dying, shall revert to my estate ; and I devise the share in the said lands, so reverting, unto my own right heirs, forever.” When a testator uses technical words, it may be presumed that he intended them to have a technical meaning and effect. Now, in case of reverter, a person who claims a fee simple by descent from one who was first purchaser of the reversion, must make himself heir to such purchaser, at the time of the happening of the contingency, when that reversion fell into possession. Fearne, 449. But the testator seems unwilling to leave this to doubtful interpretation. After declaring his wish and will, that the lands shall go to the issue, so long as the law will permit them to be so limited ; and repeating that, on failure of such issue, they should revert to his estate, he adds, “ the issue of any one of my said five children, not inheriting, or taking under this will, from any other of my said children, except so far as, on the happening of the contingencies here contemplated, they, the said issue, or any, or either of them, may be right heirs of me, the said William Seabrook.” It is difficult to conceive of terms more explicit, to exclude the idea, that any interest in the lands was to vest absolutely in any of his children, on the death of the testator, or, perhaps I may add, more clear to indicate that the persons to inherit, or take under the will, were those only, who, on the happening of the contingencies contemplated, might be the right heirs of the testator. In the judgment of the Court, Joseph Edings Seabrook took no interest in the land.

Is Mrs. Seabrook included under the discription of right heirs of the testator 1 The Court is unable to find any better difinition of an heir than the person in whom real estate vests by operation of law, on the death of one, who was last seized. This law varies in different countries— in the same country at different periods — and in the same country in relation to different estates. By the common law, the father, or grand father would be excluded. In England the estate, in general, descends to the eldest son, to the exclusion of the daughters and other sons. By the laws of South Carolina, a more equitable distribution, both of real and personal estate, is provided. In order to ascertain who is the heir, it is necessary only to enquire to whom, by the law of the land, would the estate pass in case of intestacy. In England, as is said by Lord Alvan-ley, in Holloway vs. Holloway, the word ‘heir,’ as to real estate, has a definite sense ; but intimates an opinion, that as to personal estate, it must mean such person as the law points out to succeed to personal property. In Mounsey vs. Blamire 4 Russ. 384, testatrix devised a real estate to a person whom she discribed as her kinsman, and who was not her heir at law, and directed him to assume her name and arms. By a codicil she gave several pecuniary lega-gacies, and among others, “to my heir £4,000.” Three persons were her heirs at law. It was insisted that the devisee of her real estate was hares factus, and that she could not intend a bequest to three persons. On the part of the heirs at law, the present Lord Chancellor, then Mr. Pepys,, contended that this was a gift to the person or persons answering the description of her heir at law; and it would be an extraordinary construction if the court were to hold, that those are to take, who are not the heirs at law. The Master of the Rolls determined that the word heir, being no-men collectivum, woul d legally include all those who filled that character, and that the argument in favor of the ‘hares factus,’ or of the next of kin, was not well founded. The testator must be understood to speak in reference to the laws of the country in which he resides, and to include all those who answer the description of persons whom that law points out to succeed to the estate. It cannot be regarded as analogous to that class of cases in which the husband or wife have been held not to be included under the description of‘next of kin.’ In Watt vs. Watt, 3 Ves. 244, and afterwards in Nichols vs. Savage, 18 Ves. 52, this point was ruled. It was held that the husband was not next of kin’ to the wife, nor she to him, but, that, by the terms of the statute, the widow, or husband, and next of kin, were put in opposition. Without, in any manner, impugning the correctness of these decisions, but on the contrary, subscribing fully, to the soundness of the reasoning, it appears to the court, that a manifest distinction exists between ‘next of kin,’ and ‘heir,’ and that no argument can be offered for excluding the husband, or wife, from the description of ‘heirs,’ which is not equally applicable to the mother, or grandfather.

■ But it was insisted, that an lieir cannot take by purchase, and that, therefore, the operation of this devise was, simply, to create a reversion, which passed under the residuary clause to others than the widow. This point was much considered in Robinson vs. Knight, 3 Eden, 93 in which, it was held, on the authority of Lord Hardwicke, in Amesbury vs. Brown, that the reversion did not pass by a residuary clause, and that, though a devise may not operate to make the heir take by purchase, yet it is in the nature of an exception, out of the residuary clause. In delivering his judgment the Lord Chancellor (Worthington,) says, “where a man disposes of his whole interest in one thing, and gives the rest and residue of his possessions to another, it is very forced and absurd to suppose, that, by the words, ‘rest and residue,’ used at the same instant, he meant a residue not existing, but which might by possibility exist.” And the reason of the distinction, in this respect, between real and personal estate, is then noticed. This decision was approved in several subsequent cases, in which it has been determined, that, although a residuary clause will extend to every latent reversion, which the testator might leave in him, unless it were expressly excluded by a devise to some other person, yet if such latter devise were to the testator’s own right heirs, who could not take under it, as the whole was a question of intention, it would equally operate as an exclusion of the residuary devisee. See note to Robinson vs. Knight.

■ The result of the examination thus far, is, that on the death of Joseph Edings Seabrook, his share of the real estate would pass to those who were then the right heirs of the testator, and that his widow would be included in that description. The enquiry remains, whether the right of the widow is excluded by the first clause of the will, in which a distinct and separate provision is made for her. It is there declared, “I will and direct, that the provision herein made by me, for my said wife, shall be in lieu, and bar, and full satisfaction of, and for, all her dower, and thirds of, or in, all, or any part of, my goods, and chattels, lands, tenements, and hereditaments, and whatsoever else she may, in any manner, claim, and demand, of, in, or out of, any of my estate, real or personal.” Now, grant-that the terms, “provision herein made by me,” may refer to the whole instrument, and is not to be restricted to the first clause, I think it cannot be doubted, that the testator intended to exclude his widow from any claim she might have, by operation of law, as distinguished from the provisions of the will. If the widow could take at all under the devise, I should think, on the authority of Campbell vs. Wiggins, decided at Columbia, December, 1838, that she would take as one of a class of persons answering a particular description, according to the statute, but that the statute does not furnish the rule of apportionment and she would be entitled only to a child’s share. See Thomas vs. Hall, Ca. Temp. Tal. 250. The difficulty, however, before suggested, goes to the root of the claim. The general principle is too well settled to be now questioned, that under a devise to the heir, he can take nothing as a purchaser. On the death of Joseph Edings Seabrook, the share of the real estate, which wotdd have been allotted to him, reverted, and passed, not under the will, but by operation of law, to those who were then the right heirs of testator, of whom the court supposes the widow to be one. But this is a right which, as has been stated, she derives from the law of the land, for which she is indebted to the statute alone; which right, therefore, comes within the principle of exclusion, and upon which she cannot insist, taking, as she does, the provision made by the first clause of the will. If it be said that the widow should not be cut off, by a mere technical rule of construction, or rather legal inference, against the intention, it might, perhaps, be replied, that the case was never within the contemplation of the testator, and that the original right is only made out by the application of principles of the same character. It is altogether a question of law, and not of intention.

It is submitted, on the part of the defendant, that the bequest of negroes to Joseph Edings Seabrook vested am absolute interest in him, on the death of the testator; the period of enjoyment only being postponed. On this subject the rule is sufficiently distinct. A bequest to a person “payable at, or to be paid,” at, or when, he shall attain twenty-one years of age, is a vested legacy ; but if these words are omitted, and the legacies are given at twenty-one, or if, in case of, when, or provided, the legatee attain twenty-one, these expressions annex the time to the substance of the legacy, and make the legatee’s right depend upon his being alive at the time fixed for the payment. Hanson vs. Graham, 6 Ves. 246. ■ The testator directs these lands and negroes to be improved, until the eldest child, by the second marriage, shall attain twenty-one years of age ; then, that a division shall be made into five equal shares among his five children, allotting an equal portion to each ; and he devises and bequeaths one of these five shares to each and every of his said five children, “as they, respectively, reach the full age of twenty-one, with the limitations on the land hereinafter set forth.” No allotment, even, is to be made until the eldest child of the second marriage attains twenty-one years of age, a period not yet arrived. Without more, it would be difficult to contend, that time was not of the substance of the gift.

But it is said the legatee was directed to be educated and supported from the income of the estate, of which this constituted a part, and that, by an established rule of construction, a gift of the interest for maintainance vested the legacy in the legatee. And such is the language of Mr. Fearne, 553, who gives, as a reason, that the court there considers the disposition of the interest to be an indication of the testator’s intention, that the legatee should, at all events, have the principal. See Booth vs. Booth, 4 Ves. 397. But it is equally well settled, that “if the gift of maintenance be not co-extensive with the whole amount of the interest; or if it be made out of another fund ; in neither case, will the legacies vest, prior to the arrival of the periods at which they are made payable ; for such provisions afford no presumption that the testators intended the legacies to vest before they became due.” 2 Willms. Ex’ors. 775. Pulsford vs. Hunter, 3 Bro. C. C. 416. Leake vs. Robinson, 2 Mer. 387. Now the income or profits of each share, while the legatee is under twenty-one years, is not only not directed to he applied to his benefit, but it is expressly provided that it shall “fall into, and form a part of his (testator’s) residuary estate,” and is disposed of in a subsequent clause of his will. In the mean time, each of legatees, is to recieve “only a proper education, and reasonable maintenance and support out of the income of his estate.” The education and support of the legatee had no connexion with the income of the share, which he was to receive at twenty-one years of age. It was not to be measured by that income; and would be demandable from the other profits of the general estate, if the income of the share amounted to nothing.

It was also urged that the court leans against intestacy, and that, unless this bequest vested, it would create an intestacy, quoad this share, as it could not pass under the residuary clause. Without admitting the principle to the extent supposed, it may be proper to enquire whether the construction, adopted by the court,- would lead to such result. The principle cannot, perhaps ,be better stated than by Sir William Grant, in Lawbridge vs. Rous, 8 Ves. 25. “It has been long settled, that a residuary bequest of personal estate (for it is otherwise as to real) carries, not only every thing not disposed of, but every thing that, in the event turns out not to be disposed of, not in consequence of any director 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 from 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.” It was in that case, also, contended, that the bequest of the residuary estate, “whether in money or the public funds, or other securities, of any-kind, or sort whatsoever,” could not carry plate, diamonds, furniture <fec. of which an ineffectual particular bequest had been previous ly made. But it was held that these were not words of restriction. “They are rather words of enlargement. The object was to exclude nothing. Such an enumeration under a videlicit, a much more restrictive expression, has been held only a defective enumeration, not a restriction to the specific articles.” Without repeating the 14th and 15th clauses of the testator’s will, it seems only necessary to apply to them these principles, in order to determine that they include the bequest of negroes, lapsed by the death of Joseph Edings Seabrook.

The remaining question for the judgment of the court is, whether the general residuary clauses, last adverted to, are repealed, or only modified, by the codicil to the testator’s will. The court has experienced much difficulty and embarrassment in endeavoring to ascertain what was the object of the testator, and is not now quite satisfied whether the intention of the codicil, was to make an entirely different disposition of the residuary estate, or only to vary the direction of a comparatively inconsiderable portion of it.

The will was prepared with great care, and executed with apparent deliberation, on 21st of January, 1836. The codicil, dated less than three months afterwards, does not purport to be a revocation of the will, but, referring particularly to that instrument, declares, that it shall have equal force with the will. The bequest to the charity school of St. John’s, Colleton, of twenty thousand dollars, is declared ‘null and void,’ a general legacy of ten thousand dollars is given to the executors, in trust for that school. The sum of five thousand dollars is given to the church ; and •'a like sum to friend. It is then declared “as there will be a large amount of stock and money remaining, after all the specific legacies under my will, and this codicil, áre satisfied, I, therefore, give, devise and bequeath all the said remaining stock and money, of whatever amount it may be, to be equally divided among my ten children (by name) share and share alike, to them and their heirs forever, immediately after the legacies specified in my will, and this codicil, are satisfied.”

It seems not unlikely that between the date of the will and the execution of the codicil, the sales of the testator’s crop had been received. Instead of leaving the sum of twenty thousand dollars to be raised out of a particular fund, and in making the bequest depend on the adequacy of that fund, as was provided in the will, he disposes of that amount absolutely, and, having assertained that his stock and money on hand would be ample to pay that and the other legacies, he directs an immediate distribution of the surplus of the stock and money, so soon as the legacies were satisfied. From the best consideration, which the court can bestow on the subject, it appears that the codicil was not intended to affect the general residuary disposition, but that the terms be restricted to the state of things, existing at the death of the testator.

On the subject of repairs to the mansion house, it is agreed by the parties, and such is the judgment of the court, that for ordinary repairs, the tenant for life is alone responsible ; the charge for improvements of a permanent character is to be borne, one third by the life tenant, and two thirds by those entitled in remainder

The account current, of the acting executor with the estate, has been submitted to the proper officer of the court, and his report verifying the correctness of the account, is hereby confirmed. It remains only for the court to add, at the request of Mrs. Seabrook, that the transactions of the acting executor, in the management of the estate, and in the submission of the points of difficulty to the judgment of this tribunal, have been entirely satisfactory, and well calculated to preserve and perpetuate the harmony and good feelings enjoined in the parting language of the testator.

It is ordered and decreed, that the executors carry into effect the provisions of the will, upon the principles herein stated, with leave to apply, from time to time, for fm> ther directions in the discharge of their trust, and that the costs of this suit, be paid out of the estate.

From the foregoing decree the defendants appealed, on the subjoined grounds.

1. That by the legal construction of the testator’s will, Mrs. Elizabeth E. Seabrook, the testator’s widow, is entitled under the Act of 1791, as one of the right heirs of the testator, to one third of the lands devised to Joseph Edings Seabrook, and the ten children who survived the testator (of whom Joseph E. Seabrook was one) to the other two thirds.

2. But should she be excluded, as one of the right heirs of the testator', from taking such third part of the said lands, the said Elizabeth E Seabrook is, in any event, entitled as an heir of Joseph E. Seabrook, to a proportion of the one tenth part thereof which vested in him, as one of the right heirs of the testator.

3. That the provision made by the testator, for Mrs. Elizabeth E. Seabrook, his widow, did not exclude her from taking any part of the estate which might descend to, or be cast upon her, by operation of law.

4. That Joseph E. Seabrook took an absolute, vested interest in one fifth part of the negro slaves, bequeathed by the testator to his five younger children, with the right of future enjoyment, and that the time (to wit, the attaining twenty-one years,) was annexed to the period of delivery, and not to the substance of the legacy itself.

5. That the “subsequent income” of the estate, derived from the investment of the portions of the testator’s five younger children, until the eldest attains the age of twenty-one years, falls into the residue referred to in the codicil, and being “money” passes under the residuary clause of the codicil, and is distributable among all the testator’s children, including Joseph E.' Seabrook.

6. That the residuary clause of the codicil repealed, or modified, the residuary clause of the testator’s will,

Ouria,per Harper, Chancellor.

We concur with the Chancellor who heard the cause in most of the points decided by the decree, and' do not think it necessary to add to the reasoning. I would reserve my own opinion on the question, whether the wife can take under the description .of the right heirs of the testator. By the terms of the Act of 1791, the provision for the wife, seems to be made as a substitute for dower, and the Act declares that, if accepted by her, it shall be in lieu and bar of dower.

We differ, however, from the Chancellor, as to the construction of the residuary clause of the codicil, and think it must be taken to extend to the entire residuary estate of the testator. It may be a probable conjecture, that the testator, (having, in the meantime, received the proceeds of his crop,) by his codicil, intended only the stock and money, which should be on hand at the time of his death, but we are not authorized to determine, upon conjecture, contrary to the import of the words. It will be recollected, that by the will, the entire residuary estate has been directed to be turned into money, and the words, “ stock and money,” therefore, will include the whole residue. There is some obscurity and confusion in the will, from the testator’s first saying, in the residuary clauses, that the residue of his estate will be very considerable, and then speaking doubtfully, as whether there will be a sufficiency to pay the legacy of $20,000 to the school, and then doubtfully, whether there will be a further residue to be given to the children. But the rents, profits, and income of the estate, to be vested for the younger children, are expressly included in those clauses. By the codicil, a different disposition is made of the $20,000, giving only one half of it to the School, one fourth to the Church, and another fourth to a friend. It seems that we can make nothing more of it than this, by the will, he gives what shall remain, after satisfying the 20,000, to the children, who shall attain 21. By the codicil, he gives what shall remain, after satisfying the $20,000, to the children, generally, in terms, to vest it presently. It does not appear to us, that these provisions can be taken to relate to different residues.

The decree is modified accordingly.

WM. HARPER.

We concur.

David Johnson, J. Johnston, Benj. F. Dunkin.

Note. The Reporter deems it necessary, in order to a full and proper understanding of this case, that the will and codicil, upon which the case was predicated, should be laid before the profession; and he has accordingly annexed it as a note to the case.

South Carolina, Charleston District.

IN THE NAME OF GOD, AMEN—

I, William Seabrook, of Edisto Island, in the State of South Carolina, being in bad health of body, but of sound and disposing memory, and mind, do make, publish and declare, this my last will and testament, in manner and form following, that is to say , — Imprimis. I will and direct all my just debts and funeral expenses to be paid, as soon as may be convenient after my death.

Item. I give, devise, and bequeath, unto my dear wife, Elizabeth Emma Seabrook, her heirs and assigns forever, my plantation, on Hilton Head, purchased by me of the Rev. Mr. Wallace: my servants, Nancy, and her son June, Bella, and her two children, purchased of Mr. Allen, and all the negroes which I got from her father, Joseph Edings, planter, deceased, with their issue and increase, and the sum of twenty thousand dollars, with interest thereon from the time of my death, until the said sum, principal, and interest, be paid to her, and all the furniture, and bedding, and table linen, books and pictures, in and about my mansion house and residence, on Edisto Island; also, one of my carriages, and a pair of my carriage horses; and I further give and devise, and bequeath, unto my said wife, for and during her natural life, the use and occupation of my said mansion house and residence, and of so much of my lands attached to the said mansion house, as laid down in the survey of Major John Wilson, as she, my said wife, can plant, with the slaves herein bequeathed to her: and on her death, the said mansion house, and so much of the lands thereto attached, as she may have used and occupied, shall revert to my estate ; and I will and direct, that the provision herein made by me, for my said wife, shall be in lieu, and bar, and full satisfaction of, and for all her dower and thirds, of, or in all, or any part of, my goods or chattels, lands, tenements and hereditaments, and whatsoever else she may, in any manner, claim and demand, of, in or out of, any of my estate, real or personal.

Item. I have already provided for my eldest son, William Seabrook, and I now give, devise and bequeath, unto my said son, William Seabrook, his heirs and assigns, the moiety, or half part of my Seabrook Island, formerly called Simon’s Island, lying to the northward and eastward of the middle road, and ninety acres of my other lands on John’s Island, on which are my settlements, buildings, bams, steam mill and dwelling house, next adjacent to the «aid moiety of Seabrook’s Island, and following the line formerly laid down by John Wilson, surveyor, between me and my said son William, on the special condition, that within a reasonable time after my death, he convey to my estate, in fee simple, absolute, by good and sufficient titles, to be approved of by my executors, the plantation, or tract of land on Wadmalaw Island, which I gave to my said son William, to be held by my estate, to and for the same uses and purposes, as the other property of my estate, not specifically disposed of by my will.

Item. I have already advanced, and given to my son, Ephraim Mikell Seabrook, property to the value of fifty-eight thousand dollars ; I now, therefore, in addition to the said advancement, give, devise and bequeath, to my said son, Ephraim Mikell Seabrook, his heirs and assigns forever, all my plantation, or tract of land, containing six hundred acres, more or less, being all my lands, situate and lying on the east side of the public road on Wadmalaw Island, from Rockwell, and purchased partly of Benjamin Adams, and partly of the estate of Samuel Jenkins, and Edward Bailey ; and I give and bequeath unto my sons, William Seabrook, and George Washington Seabrook, their executors, administrators and assigns, the sum of twenty thousand dollars, and all interest, income and profits, in any manner arising thereon, in trust to, and for the exclusive use and benefit of the child or children, born or to be born, of my son, Ephraim Mikell Seabrook, if more than one, to be equally divided among them, share and share like, on their arrival, respectively, at the age of twenty-one years; and if but one, then to that one, absolutely and forever, on arriving at the age of twenty-one years; and should any child or children of my .said son, Ephraim Mikell Seabrook, die before attaining twenty-one years, leaving lawfully begotton issue, living at the time of his or her death, then such issue shall take and receive the same share, or proportion, in the said sum ■of twenty thousand dollars, and in the interest, income and profits, thereon, as the parent or parents, on attaining twenty-one years of age, would have taken and received.

Item. I give, devise and bequeath unto my son, George Washington Seabrook, for and during his natural life, the rents, issués, use, occupation and enjoyment, of all that one half of my plantation on John’s Island, being a part of Seabrook’s, formerly Simon’s Island, situate, lying, and being, to the southward of the middle road, agreeably to the plat or plan thereof, of the said plantation, made by John Wilson, surveyor; and also, unto my said son, George Washington Seabrook, for and during his natural life, the rents, issues, uses, occupation and enjoyment, of all that plantation or tract of land, on Edisto Island, recently purchased by me of Benjamin Bailey, and containing four hundred and twenty-seven acres, more or less; and from and after the death of my said son, George Washington Seabrook, I give, devise and bequeath, both the said two tracts of land, and the improvements thereon, unto the issue of my said son, George Washington Seabrook, living at the time of his death, who attain the full age of twenty-one years, or die before that time, leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time of the death of the said George Washington Seabrook; if one, then to that one, his or her heirs and assigns, absolutely and forever, share and share alike, as tenants in common ; and should any or either, of the lawfully begotten issue of the said George Washington Seabrook, die before him and before attaining twenty-one years, without leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living" at the time of the death of my said son, then the share or shares, of such issue so dying, whether specifically given, or otherwise accruing under this clause, in my will, shall go to the survivors or survivor, and to the lawful issue of any of the issue of my said son, who may have previously died, leaving lawful issue living at the death of my said son, George Washington Seabrook, who, to wit, the said issue, who shall attain the full age of twenty-one1 years, share and share alike, as tenants in common. The surviving issue of any of the deceased issue of my said son, George Washington Seabrook, taking among them, if more than one, the share or shares, to which the parent or parents, if alive, would have been entitled; and should my said son, George Washington Seabrook, depart this' life, without leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time ■of his death, or dying before that time, leave lawfully begotten issue, to live until the parent or parents, if alive, would have reached twenty-one years of age, then and in these cases, on the failure of the issue of the said George Washington Seabrook, within the time hereby limited, I .give, devise and bequeath, the said two plantations, or ■tracts of land, absolutely and forever, unto the right heirs •of me, the said William Seabrook, who shall be living at the time of the failure of the said issue of my said son, George Washington Seabrook, within the time limited as aforesaid ; it being my wish, as I think the lands mentioned in this clause of my will are among the best lands in the State of South Carolina, that they may remain limited in my family as long as the law will permit; and I further give and bequeath unto my said son, George Washington Seabrook, absolutely and forever, one half of all my provisions, stock, furniture, carts, wagons, boats, flats, horses and plantation utensils, at the time of my death, on John’s Island, and Seabrook’s Island, to be allotted and divided -to him by the commissioners of my estate.

Item. I give, devise and bequeath, one moiety, or half .part of, all my lands, on Slann’s Island, measuring and containing, in the whole, about thirteen hundred and sixteen acres of high land, with the marsh land thereunto attached, unto my daughter, Mary Ann Seabrook, for and during the term of her natural life; and from and after the death of my said daughter, Mary Ann Seabrook, I give, devise and bequeath all the said moiety, or half part of the :said lands, on Slann’s Island, unto the lawful issue of my said daughter, Mary Ann Seabrook, living at the time of her death, who attain the full age of twenty-one years, or die. before that time, leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time of the death of the said Mary Ann Seabrook ; if one, then to that one, his or her heirs and assigns, absolutely and forever; and if more than one, then to them, their heirs and assigns absolutely and forever, share and share alike, as tenants in common ; and should any or either of the lawfully begotten issue of the said Mary Ann Seabrook, die before her, and before attaining twenty-one years, without leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living atthetime of the death of my said daughter, Mary Ann Seabrook, then the share or shares, of such issue so dying, whether specifically given, or otherwise accruing, under this clause of my will, shall go to the survivors or survivor, and to the lawful issue, if any of the issue of my said daughter, who may have previously died, leaving lawful issue, living at the death of my said daughter, Mary Ann Seabrook, who, to wit, the said issue, who shall attain the full age of twenty-one years, share and share ' alike, as tenants in common. The surviving issue of any of the deceased issue of my said daughter, Mary Ann Sea-brook, taking among them, if more than one, the share or shares, to which the parent or parents, if alive, would have been entitled. And should my said daughter, Mary Ann Seabrook, depart this life, without leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time of her death, or dying before that time, leave lawfully begotten issue, to live until the parent or parents, if alive, would have reached twenty-one years of age, then and in these cases, on the failure of the issue of the said Mary Ann Seabrook, within the time hereby limited, I give, devise and bequeath, the said moiety, or half part of the said lands, on Slann’s Island, absolutely and forever, unto the right heirs of me, the said William Sea-brook, who shall be living at the time of the failure of the said issue of my said daughter, Mary Ann Seabrook, within the time limited as aforesaid.'

Item. I give, devise and bequeath, one moiety, or half part of, and in, all my lands on Slann’s Island, measuring and containing thirteen hundred and sixteen acres of high land, with the marsh land thereunto annexed, unto my daughter, Sarah Seabrook, for and during her natural life; and from and after the death of my said daughter, Sarah Seabrook, I give, devise and bequeath, all the said moiety, or half part of the lands, on Slann’s Island, unto the lawful issue of my said daughter, Sarah Seabrook, living at the time of her death, who attain the full age of twenty-one years, or die before that time, leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time of the death of the said Sarah Sea-brook, if one, then to that one, his or her heirs and assigns., absolutely and forever; and if more than one, then to them, their heirs and assigns, absolutely and forever, share and share alike, as tenants in common; and should any, or either of the lawfully begotten issue of the said Sarah Seabrook, die before her, and before attaining the age of twenty-one years, without leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time of the death of my said daughter, Sarah Seabrook, then the share, oí shares, of such issue so dying, whether specifically giren, or otherwise accruing, under this clause of my will, shall go to the survivors, or survivor, and to the lawful issue of any of the issue of my said daughter, who may have previously died, leaving lawful issue, living at the death of my said daughter, Sarah Seabrook, who, to wit, the said issue, who shall attain the full age of twenty-one years, share and share alike, as tenants in common. The surviving issue of any of the deceased issue of my said daughter, Sarah Seabrook, taking among them, if more than one, the share, or shares, to which the parent, or parents, if alive, would have been entitled; and should my said daughter, Sarah Seabrook, depart this life, without leaving lawfully begotten issue, who shall attain the full age of twenty-one years, living at the time of her death, or dying before that time, leave lawfully begotten issue, to live until the parent, or parents, if alive, would have reached twenty-one years; then, and in these cases, on the failure of the issue of the said Sarah Seabrook, within the time hereby limited, I give, devise and bequeath, the said moiety, or half part of the said lands, on SI aim’s Island, absolutely and forever, unto the right heirs of me, the said William Seabrook, who shall be living at the time of the failure of the said issue of my said daughter, Sarah Sea-brook, within the time limited as aforesaid.

Item. I give, devise and bequeath, four hundred acres of land, from my largest tract of land on Edisto Island, forming the most westerly portion or part of the said tract, of land, and containing my old settlement, unto my daughter, Mary Ann Seabrook, for and during her natural life; and on her death, I give, devise and bequeath, this tract of four hundred acres of land, on Edisto Island, to the lawful issue of my said daughter, Mary Ann, living at her death, in the same manner, and subject to the same conditions and limitations, as are set forth in the devise of my lands on Slann’s Island, as if the language of that devise was here again repeated, and applied to this devise.

Item. In like manner, I give, devise and bequeath, one moiety of my sea-side plantation, on Edisto Island, to wit, that part of my said plantation lying on. the west side of the middle road, joining lands of William Edings, the eh der, unto my daughter, Sarah Seabrook, for and during her natural life; and from and after the death of my said daughter, Sarah Seabrook, I give, devise and bequeath, the said part or portion of my said sea-side plantation, unto the lawful issue of my said daughter, Sarah, living at the time of her death, in the same manner, and subject to the same conditions and limitations as are set forth in the devise of my lands on Slann’s Island, as if the language of that devise were here again repeated, and applied to this devise.

Item,. I give, devise and bequeath, unto my said two daughters, Mary Ann and Sarah Seabrook, all of my stock of cattle, horses, hogs, sheep, poultry, and live stock, of what nature and kind soever ; carts, wagons, boats, flats, implements of husbandry, household and kitchen furniture, beds and bedding, bed and table linen, in or upon my said lands on Slann’s Island. Also, all my silver plate and plated ware; and also, all the rings, trinkets and jewelry, that belonged to their deceased mother; to be equally divided between my said two daughters, share and share alike. And I give and bequeath unto my daughter, Mary Ann, the sum of five thousand dollars; and unto my daughter, Sarah, twelve thousand dollars, as I think that the seaside lands, on Edisto, devised for life to her, are less valuable than those in the same place, devised to Mary Ann ; to be paid, the said money legacies, to my said daughters, within one year from my death.

Item. I will, order and direct, that all my slaves whatsoever, and wheresoever, with their future issue and in•crease, now owned and possessed by me, (except those herein before specifically given to my dear wife,) shall be divided and allotted, as soon as may be convenient after my death, by the commissioners hereinafter named, into' (7) seven equal parts, or shares; and I give and bequeath one of these parts, or shares, unto each and every of my three children, Mary Ann Seabrook, Sarah Seabrook, and George Washington Seabrook; namely, one share, or part, to every of them, my said three children, forever ; and the remaining four shares, or parts, shall belong to, and form a part of my estate.

Item. I will, order and direct, that the provision in lands and negroes, by me made for my two said daughters,. Mary Ann and Sarah Seabrook, by this, my will, shall be to and for their own sole and separate use, respectively, and without being in any manner subject to the debts, contracts, or control, of any husband or husbands, they, or either of them, may have.

Item, in order to make a proper provision for my children, by my present marriage, Robert Chisolm Seabrook, Joseph Edings Seabrook, Caroline Lafayette Seabrook, Martha Washington Seabrook, and Julia Georgiana Sea-brook, I will, order and direct, that my executors, hereinafter named, or such of them as qualify and act in this, will, shall, as soon as may be convenient, or as the same may be deemed advisable, lay out and invest the sum of one hundred thousand dollars, in the purchase of lands and negroes, for the use of my estate ; and should I make any purchases of lands and negroes, previously to my death, then I order and direct, that such lands and negroes, to the extent of their purchase money, be considered a part of the said investment, and that my said executors shall make up the difference, or balance, until the whole investment amounts to the sum or value of one hundred thousand dollars ; and I will, order and direct, that all the lands of which I am now possessed, not specifically devised by this will, including the lands on Wadmalaw, to be re-conveyed to my estate, by my son, William Seabrook; and all the lands and negroes that may be purchased hereafter by me, or by my executors, under this direction, to the value of one hundred thousand dollars, and the said four parts, or four-sevenths of the negroes now owned and possessed by me, with their future issue and increase, shall be kept together, and improved to the best advantage, until my eldest child, by my present marriage, reach the full age of twenty-one years ; and I then will, order and direct, that all my said lands, of which I am now possessed, not including those specifically given by this will, and including the lands on Wadmalaw Island, that are to be conveyed to my estate, by my son, William; and all the lands and negroes, to the value of one hundred thousand dollars, that may hereafter be purchased by me, or my executors, as aforesaid ; and also, the said four parts, or four-sevenths of the saidnegroes, now owned and possessed by me, with their issue and increase, shall be divided into five equal shares, among my said five children by my present marriage, by the commissioners of my estate, hereinafter named, or their •successors, allotting, as nearly as may conveniently be, an equal portion of lands and negroes to each of my said five children. And I give, devise and bequeath, one of these five shares of lands and negroes to each and every*of my said five , children, as they, respectively, reach the full age of twenty-one, with the limitations on the lands hereinafter set forth. The issues, income, rents, and profits, of each •and every .of the said five shares, until the child and children, to whom the said shares, respectively, are allotted, shall, respectively, reach the full age of twenty-one years, ■falling into, and forming a part of my residuary estate. Each and every of my said children, until they severally and successively reach the full age of twenty-one years, receiving only a proper education, and a reasonable maintenance and support out of the income of my estate ; and •as my said five children, by my present marriage, severally and successively, reach twenty-one years of age, I give, devise and bequeath, the share or portion of lands that may ■be allotted to them, respectively, unto them, my said five children, severally and successively, as they severally reach •the full age of twenty-one years, for and during their respective natural lives, and from and after the deaths, severally, of my said five children, respectively, I give, devise ■and bequeath, the share, or portion of lands, as aforesaid, •of each and every of them, my said children, respectively, unto the lawfully begotten issue of my said five children, respectively, living at the times of the deaths, respectively, of my said five children, respectively, who, to wit, the said issue, who shall live to attain the full age of twenty-one years, or who, dying before that time, have lawfully begotten issue, to live until the parent, or parents, if alive, would have reached twenty-one years, and living at the times of the deaths, respectively, of my said five children, respectively, if one, .then to that one, his, or her heirs and assigns, forever; and if more than one, then to them, their heirs and assigns, share and share alike. And should any, or either of the lawfully begotten issue of any, or either of my said five children, respectively, die before the parent or parents, my child, or children, aforesaid, and before attaining twenty-one years of age, without leaving lawfully begotten issue, who shall live to the full age of twenty-one years, living at the time of the death of such parent, or parents, my child, or children, as aforesaid, then the share, or shares, of such issue, so dying, whether specifically given, or otherwise accruing, under this clause of my will, shall go to the survivor or survivors, of the issue, respectively, of my said child, or children, respectively, and to the lawful issue, respectively, of the issue, respectively, of my said child, or children, respectively, who may have previously died, leaving lawful issue, living at the times of the deaths, respectively, of my said children, respectively, who, to wit, the said issue, who shall attain the full age of twenty-one years, share and share alike, as tenants in common ; the surviving issue of any of the deceased issue of my said children, respectively, taking among them, if more than one, the share to which the parent, or parents, if alive, would have been entitled. And should any, or either of my said five children, respectively, depart this life, without leaving lawfully begotten issue, living at the time of his, her, or their deaths, respectively, who shall live to attain the full age of twenty-one' years, or dying before that time, leave lawfully begotten issue, to live until the parent, or parents, if alive, would have reached twenty-one years of age, then the share and shares, respectively, in the said lands of such child, or children, respectively, so dying, shall revert to my estate; and I give, devise and bequeath, the share and shares of the said lands, so reverting, unto my own right heirs forever. It being my wish and will, that the shares in my lands, given to my said five children, respectively, shall go to their issue, respectively, so long as the law will permit the said lands to he so limited, and no longer. And that on the failure of their said issue, respectively, within the period so limited, the share and shares, in the said lands of such issue, and of such issues, so failing, shall revert to my estate. The issue of any one of my said five children, not inheriting, or taking under this will, from any other of my said children, except so far as on the happening of the contingencies here contemplated, they the said issue, or any or either of them, may be right heirs of me, the said William Seabrook.

Item. I will, order and direct, that the provision in lands and negroes, made by me for my three younger daughters, Caroline Lafayette, Martha Washington, and Julia Geor-giana, by this will, shall be to and for their own sole and separate use, respectively, and without being, in any manner, subject to the debts, contracts, or control of any husband, or husbands, my said daughters, or any, or either of them, may have.

Item. My residuary estate, including therein the rents, profits and income, of the property, real and personal, intended for my younger children, until they, my said younger children, respectively, reach twenty-one years of age, will, probably, be very considerable, and after making provision for the investment of one hundred thousand dollars, directed as aforesaid, and the education, and reasonable support and maintenance of my said children, until they, respectively, reach twenty-one years of age, as aforesaid ; then, should there be any surplus of my residuary estate, real and personal, after making the provision above directed, for each and every of my children by my present marriage, I give and bequeath the sum of twenty thousand dollars, should the said surplus of my real estate and personal, amount to so much; and should the said surplus not amount to so much, then such surplus as may remain, after the provision aforesaid, for my said children, by my present marriage, as aforesaid, unto my executors hereinafter named, and to them, their heirs and successors, forever, in trust, to vest the same in some good and secure public and private securities, and to apply the income, thence arising, forever, to the support of a good school for the education of the native poor white children of the parish of St. John’s, Colleton, in the State of South Carolina ; the said school to he subject, forever, to the visitation and supervision of my executors hereinafter named, and their successors, and to such rules and regulations as may, from time to time, be adopted by the persons, for the time being, under this clause of my will, entitled to visit and supervise the said school.

Item. Should any balance remain of my residuary estate, real and personal, after making first the provision,; aforesaid, for my children, by my present marriage ; and, secondly, the provision of twenty thousand dollars, as aforesaid, for the support and maintenance of a school fol' the education of the native poor white children of the parish of St. John’s, Colleton, as aforesaid, then I will, order and direct, that such balance, whether real or personal, be turned into cash, by my executors, and divided' among all my children, who shall attain the full age of twenty-one years, both those by my former and my present marriage, share and share alike, and the issue of any deceased child, or children, taking and receiving the portion, or share, which the parent, or parents, if alive, would have taken and received.

Item. It is my anxious desire to prevent all litigation, or reference to Courts of law, or equity, concerning the affairs of my estate ; and I earnestly enjoin my dear children, by all the respect which they can have to the memory of an affectionate father, to remember, and if possible, follow my wishes on this subject. As far as in me lies, to secure an object which I have so much at heart, I do hereby constitute, nominate and appoint my good friends; Ephraim Mikell, William Edings, Mitchell King, and my young friend, William Edings, junior, and my three sons, William, Ephraim Mikell, and George Washington Sea-brook, or any three of them, cominissioners of my estate, to apportion and divide my negro slaves, and my several stocks of cattle, horses, hogs, and live stock, generally, and the other specific bequests, which shall, or may require, in any manner, to be divided among my present children, and all the rest, residue and remainder, of my estate, real and personal, among my children, or their representatives, generally, according to the several bequests and legacies contained in this will. And the division and apportionment of the said commissioners, or a majority of them, shall be final and conclusive, on all parties interested; and should any, or either of the commissioners die before me, or before the final division of my estate, or decline to act as a commissioner or commissioners, then, and in that case, and so often as the same may be necessary, I authorize, empower, and request the surviving commissioner, or commissioners, or such one, or more of them, as may survive, and act as aforesaid, to choose, nominate and appoint some honorable, discreet, intelligent and proper person, or persons, as commissioner, or commissioners, of my estate, as aforesaid, so that the number of these commissioners of my estate may always be maintained full and complete, until the final division and settlement thereof, with the like power and authority to act as commissioners of my estate, as aforesaid, according to the true intent and meaning hereof, as if such commissioner and commissioners had been actually named by me, the said William Seabrook. And should any doubt, dispute, or misunderstanding arise, respecting my estate, real and personal, and the division and appropriation thereof, with, between, or among any person, or persons, interested therein, then, when, and as often as the same may arise, I will, order and direct, that the same be referred to the award, judgment and determination, of the said commissioners : and that their decision, or the decision of a majority of them, therein, shall be final and conclusive, on all, and every person and persons interested in my estate.

Lastly. I do hereby constitute, nominate and appoint, my good friends, Ephraim Mikell,' William Edings, Mitchell King, William Edings, junior, and my sons, William Seabrook, Ephraim Mikell Seabrook, and George Washington Seabrook, executors to this, my last will and testament, hereby revoking and annulling' all former wills, by me heretofore made, and ratifying and confirming this, and no other, to be my last will and testament.

In testimony whereof, I have hereunto set my hand and seal, this twenty-first day of January, in the year of our Lord one thousand eight hundred and thirty-six.

WILLIAM SEABRGOK, (L. S.)

Signed, sealed, published and declared,''by the above named testator, as and for his last will and testament, in the presence of us, who, in his presence, and at his request, and in the presence of each other, have subscribed our names as witnesses.

Joseph D. Edings, Alexander Calder, Wm. M. Lawton, and Walter Dubois.

Codicil.

IN THE NAME OF GOD, AMEN—

I, William Seabrook, of Edisto Island, in the State of South Carolina, being sick in body, but of sound and disposing mind and memory, thanks be to Almighty God for the same, do make, publish and declare this to be a codicil to my last will and testament, bearing date the twenty-first day of January, in the year of our Lord one thousand eight hundred and thirty-six, and shall have equal force with the aforesaid last will and testament.

Item. It is my will and desire, that the gift and bequest of twenty thousand dollars to my executors, in trust, for the support of a school for the education of the native poor white children of the parish of St. John's, Colleton, in the State of South Carolina, be null and void.

Item. I give and bequeath the sum of ten thousand dollars to my executors, in trust, to be applied to the purposes heretofore mentioned in my last will and testament, for the support of a school for the education of the native poor white children of the parish of St. John's, Colleton, subject to the same provisions and restrictions as are therein contained.

Item. I give and bequeath the sum of five' thousand dollars to the Presbyterian Church of Edisto Island.

Item, I give and bequeath the sum of five thousand dollars to my young friend, Archibald Seabrook, to him and his heirs forever.

Item. As there will be a large amount of stock and money remaining after all the specific legacies under my will, and this codicil, are satisfied, I, therefore, give, devise and bequeath, all of the said remaining stock and money, of whatsoever amount it may be, to be equally divided among my ten children, William Seabrook, Ephraim M. Seabrook, Mary Ann Seabrook, George W. Seabrook, Sarah Sea-brook, Robert C. Seabrook, Joseph E. Seabrook, Caroline Lafayette Seabrook, Martha W. Seabrook, and Julia Geor-giana Seabrook, share and share alike, to them and their heirs, forever, immediately after the legacies specified in my will, and this codicil, are satisfied.

In testimony whereof, I have hereunto fixed my hand and seal, this eighteenth day of April, in the year of our Lord one thousand eight hundred and thirty-six.

WILLIAM SEABROOK, (L. S.)

Signed, sealed and delivered, in the presence of John P. Byrnes, John Walker, Chs. Miller.  