
    
      William E. & Henry Bailey, executors of Rene Godard, v. Effingham G. Wagner et al.
    
    Charleston,
    Jan’y. 1848.
    The testator, after making a bequest of slaves, sold one of them in his life time— held thatt'he sale was, pro tanto, an ademption of the legacy. .
    Testator made a bequest of $8000, to the children of his grandson, such part of which, as might be necessary, to be applied in payment of a loan which had been made for the benefit of their mother’s separate estate — the surplus to be invested for their benefit, &c. The loan having been satisfied by other means during the life time of the testator, the Court directed the whole amount of the legacy to be invested by the executors for the benefit of the children, and the capital to be transferred to their guardian, as soon as one should be appointed.'
    A legatee to whom Insurance stocks had been bequeathed, which had subsequently depreciated in the life time of the testator, held not to be entitled to any thing more than the stocks as they stood at the time of the testator’s decease.
    Testator made a bequest “ to the children of his grandson,” to be paid one year after his death — held that only such children as were in esse at the death of the testator, and such as were born within one year after his death, and were alive at that time, were entitled to take.
    
      Where the father was unable to maintain his infant children, and they were the recipients of considerable legacies, the Court ordered a proper allowance to the father, for their maintenance and education, its disbursement to be accounted for annually before the Commissioner.
    When the things which form the subject of a bequest are capable of individuality, and have been enumerated by the testator — then the legacy is specific.
    The property in question proving to be more than was enumerated in the will, as “ the residue of my estate,” held that the residuary legatees were entitled to all the personal estate which might turn out not to have been well bequeathed to others.
    
      Before Dunkikt, Ch. at Charleston, July .Sittings, 1847.
    The .bill was filed by the executors of the late Rene Godard, deceased, for the purpose of having the trusts of his will declared, and the rights of the legatees ascertained. It very fully and succinctly states the whole case.
    
      To the Honorable the Chancellors of said State:
    
    Humbly complaining, your orators William E. Bailey and Henry Bailey, executors of the last will and testament of Rene Godard, Esq., deceased, shew to your Honors — That the said Rene Godard, being possessed of a considerable estate, by his last will and testament, duly executed, bearing date the 30th day of October, which was in the year of our Lord 1843, gave and disposed as follows, that it to say—
    “ Deo optima máximo."
    
    
      “ I, Rene Godard, of the city of Charleston, State aforesaid, do make and publish this, my last will and testament, which I write with my own hand, now that I am sound in mind and body, to guard against events that might hinder me from making it with as much judgment, composure, and reflection, as I- can at present do, hereby revoking, cancelling annulling, and making void and of no effect, any and all Testaments anterior to the present.
    ■“ I give and bequeath to my grand daughter, Maria Louisa Wagner, my house and lot of land situate in Meeting street, my house and lot on East Bay street, my interest, viz — one fourth, in the lot and building in State street, known as the Union Insurance Office; my servants, John, George, Samuel, Edward, Bonnite, Annette, Sophie and Hannah, with the future issue of the females — also, my furniture, beds, beddings, plate, china, <fcc. See., as the whole may be at my death: the personal estate to be delivered over to her immediately, and the landed estate free of interest one year after, the whole then to be hers, her heirs and assigns, forever, free from the control of any husband she may. marry.
    “ To my grandson Effingham Godard Wagner, I give and bequeath my house and lot in Cumberland street, and the bond of Mr. George Trenholm of seven thousand five hundred dollars, or the like sum in money if it should have been paid, the above house and bond to be delivered over to him from interest one year after my death, and then to be his, his heirs and assigns forever.
    
      “ To my grandson Francis Henry Wagner, I give and bequeath fifty shares in the capital of the Charleston Insurance and Trust Company, the bond of Mr. Victor Durand of five thousand dollars, and. a certificate of city five per cent, stock of fifteen hundred dollars, or the same amount in money, in case they should have been paid : the income of the shares, bond and certificate to be, one year after my death, free of interest, under the care and management of his natural guardian, and the whole to be delivered over to him when of age, or married, and then to bn his, his heirs and assigns forever.
    “To my grandson Edwin- Wagner, I give and bequeath eight thousand dollars, payable free of interest one year after my death,
    “ To the children of my grandson-Charles Wagner, I give and bequeath eight thousand dollars, such part of which sum as may be necessary to be employed in the payment of the loan obtained from the State for rebuilding the burnt houses belonging to his wife, and the surplus to be invested by my executors for the benefit and use of the above children, in such, stocks as they may deem most productive, this legacy to be paid, free of interest, one year after my death.
    “ To the Societe Francaise de Bienfaisance, I give and bequeath two hundred dollars, payable, free of interest, one year after my death, one half to be added to the increase of capital and the other half to the charity fund.
    “ In order to raise the sum of sixteen thousand two hundred dollars bequeathed to my grandson Edwin Wagner, to the children of Charles Wagner and to the French Society, I appropriate the notes and cash I may have at the time of my death ; also the proceeds of my house in College street, which I direct and authorize my executors to sell on such terms and for such price as they may think proper; also the net income of one year of my landed estate, stocks, bonds and Bank and Insurance shares; also twenty-two shares of the Bank of Charleston ; the surplus, after paying the foregoing legacies, amounting to sixteen thousand two hundred dollars — if there be any, to be divided amongst my eight grand children, share and share alike.
    ■ “ To my grandson Godard Bailey, I give and bequeath my Library, Engravings, &c.
    
      “ The residue of my estate, which, after paying the foregoing legacies, will consist in my house and lot of land in King street, a bond of Mr. James Fife of ten thousand dollars, three hundred shares in the Union Bank of South Carolina, two hundred shares in the Bank of Charleston, I give and bequeath to my grandsons, Godard Bailey, William Henry Bailey, John Edwards Bailey, share and share alike, to be delivered over to them as they successively become of age, or are married, and until then, the income tobe used and employed in their education and maintenance, under the superintehdance and management of their natural guardian. In case the bond of Mr. J. Fife, or any ot the shares herein bequeathed, be paid or sold, the amount shall be made good at the following rates, that is, the bond for ten thousand dollars, the shares of the Union Bank at forty-seven dollars per share, and those of the Bank of Charleston, at one hundred dollars per share.
    “ I name and appoint William Bailey and Henry Bailey, Esqrs., my executors.”
    That the testator, on the third day of May, in the year 1845, departed this life, leaving the said will in full force, and leaving Effingham Godard Wagner, Charles Geoige Wagner, Maria Louisa Wagner, the wife of Thomas J. Legare, Edwin Adolphus Wagner and Francis Henry Wagner, children of Franciade Maria Godard, a deceased daughter, who was the wife of Effingham Wagner, Esq., and Godard Bailey, William Henry Bailey and John Edwards Bailey, children of Jane Eliza Godard, a deceased daughter, who was the wife of your orator, Henry Bailey, his distributees, and next of kin; of whom Francis Henry Wagner and the children of Mrs. Bailey, are infants under the age of 21 years. That your orators proved the said will and paid all the testator’s debts, which were very inconsiderable, and are willing to pay the legacies, but have met with difficulties in doing so, which compel them to resort to this Honorable Court, for the purpose of having the trusts of the will declared and the rights of the legatees ascertained.
    That your orators delivered to Thomas J. Legare and Maria Louisa Legare the specific legacies bequeathed to her, without any delay, and received the rents of the house in Meeting street, the house on East Bay and the Insurance office, during one year, and then put the said Maria Louisa in possession as devisee. But the testator in his life time had sold George, one of the slaves bequeathed to the said Maria Louisa Wagner; and hereupon, a question has ,been made, whether the legatee is not entitled to compensation for this legacy, which your orators are advised that they cannot allow.
    That to Effingham Godard Wagner, your orators, one year after the testator’s decease, delivered the bond bequeathed to him, the interest to that date having been paid to your orators, and put him in posession of the house in Cumberland street.
    That Francis Henry Wagner is a minor, and a question has been raised whether his father, Effingham Wagner, Esq., is entitled to a transfer of the bond and certificate bequeathed to his son, or whether the income should be paid into the hands of the father, or whether so much thereof as may be necessary, should be laid out under his direction in the education of his son, and the surplus invested for the son’s benefit; on all which questions your orators pray the direction of this Honorable Court. And your orators further shew to your Honors’ that at the date of his will the testator had fifty shares in the Insurance and Trust Company of Charleston, a bond of Victor Durand’s for 5000 dollars, and a certificate for 1500 dollars in the 5 per cents of the city of Charleston; and that at the time of his death, he was still possessed of the same property : but between the making of his will and his decease, the Charleston Insurance and Trust Company obtained an amendment of their charter, authorizing them to reduce their capital from one million to half a million: And, in pursuance of the power so granted to them, the Directors paid to the several share holders half of the amount of their respective shares: and the testator received on account of his shares, the sum of 2500 dollars, so that the par value of a share of the said stock, which was 100 dollars when the testator made his will, was only 50 dollars at the time of his decease: And a question has arisen, whether the said Francis Henry Wagner is entitled to the par value of the stock at the date of the testator’s will. And on this question your orators pray the aid and direction of this Honorable Court.
    That your orators have paid to Edwin Wagner the legacy of 8000 dollars one year after the testator’s death.
    Your orators further shew to your Honors, that Charles George Wagner, the testator’s grandson, called in the will Charles Wagner, in the testator’s life time, being then a minor, married with Miss Mary Ann Gourlay, then a minor, who was possessed, among other things, of a certain house in the city of Charleston, at the corner of Anson and Wentworth street, and by articles previous to marriage, bearing date the 20th day of December, 1836 — in which the-said Charles George Wagner and his father Effingham Wagner, and William E. Bailey, party hereto, and Charles M. Furman, executors of Thomas Rivers, under whose will the said Mary Ann Gour-lay was entitled to a considerable fortune, as well as the said Mary Ann Gourlay, joined; it was agreed that when the said Mary Ann should attain her full age, the estate of which she was then seized should be conveyed to the uses of the marriage. That in the great fire of 1838, the house at the corner of Wentworth and Anson street was burnt; and by certain proceedings in this Court in the case Exparte Charles G. Wagner and wife, on the 31st day of January, 1839, Effingham Wagner, father of the said C. G. Wagner, was, for the uses aforesaid, made trustee, and authorized to borrow money upon the conditions of the Fire Loan to rebuild the said house. That a loan to the amount of 4000 dollars was effected, for which the lot aforesaid, before the testator made his will, to (wit: on the 16th day of November, 1839, was mortgaged. But afterwards, in the life time of the testator, to wit: on the 16th day of July, 1844, the money due on the mortgage being in arrear, the premises were sold to satisfy the debt. And a question has been raised, whether the 8000 dollars bequeathed to the children of Charles George Wagner, or any part of it, should be bound by the trusts declared of the property, to the relief of which the testator authorized the money to be applied. That in pursuance of the said articles, after the mortgage herein before mentioned, to wit: on the 17th day of November, which was in the year 1841, a settlement in pursuance of said articles was executed, and the property, subject to the trusts declared in said articles, conveyed to Robert H. Quash, junr. and the appointment of the said Robert H. Quash, junr. as trustee, was, by an order of this Honorable Court in the case Exparte C. G. Wagner and wife, on the 6th day of March 1842, confirmed.
    Your orators further show to your Honors, that at the death of the testator, the said Charles G. Wagner had two children, viz: Thomas Rivers Wagner and Jane Johnson Wagner, of whom Jane Johnson Wagner has since died, an infant of tender years, and since the testator’s death, another child, viz: Charles Wagner, has been born to the said Charles G. Wagner, by the said Mary Ann his wife: And a question is made whether the aforesaid legacy vested in the said Thomas Rivers Wagner and Jane Johnson Wagner, or whether the child already born, or the children hereafter to be born, will take under the aforesaid bequest; and on this question your orators also pray the aid and direction of this Honorable Court. And the question has also been raised, whether your orators are trustees for the children of the said Charles G. Wagner; or whether they are only executors, and bound to pay over the said legacy to the guardian of the infants: And on this question your orators pray the aid and direction of this Honorable Court: and also in case they aie bound as trustees, the direction of this Honorable Court as to maintenance, and the proper sum to be allowed for that purpose.
    That your orators have paid the legacy to the Sociele Fran-caise. That they have sold the house in College street, but all the purchase money is not yet paid in, nor all the money that was due to the testator on notes collected, nor have they sold the 22 Charleston Bank shares: but the fund from these sources and from the income of the real estate, the interest of the bonds and the dividends of the stock for one year, will not only be ample for the legacies of Edwin Wagner, the children of Charles G. Wagner and the Societe Francaise, but will leave a considerable surplus: And a question has arisen, whether this surplus be a specific legacy to the eight grand children, and on this point your orators pray the direction of this Honorable Court.
    Your orators further show to your Honors, that the bond1, of Mr. James Fife for 10,000 dollars, mentioned in the will, was paid off in testator’s life time: and that testator after-wards lent to Mr. Hedley the sum of ten thousand dollars on his bond: and that the testator, besides the property enumerated in his will as residue, was at the time of his death possessed of Mr. Hedley’s bond and two bonds of Mr. Nayal for 1000 dollars each.
    That the testator’s house in‘ King street was his residence, and produced no rent in his lifetime; but has been rented since his death: And a question has been made, whether the devisees Godard Bailey, William Henry Bailey, and John Edwards Bailey, are eutitled to all the rents since the death of the testator, or whether, in compliance with that direction, which requires the rents of his landed estate for one year after his death to go to a fund for the payment of certain legacies, and for distribution among his grand children, it was the duty of the executors to let his house for the benefit of the said grand children ; and on this question also, your orators pray the aid and direction of this Honorable Court.
    Your orators further show to your Honors, that a question has arisen, how far the devise of the house and the gift of the stocks and bond to Godard Bailey, William Henry Bailey, and John Edwards Bailey, are specific; and in what way the amount of Mr. Fife’s bond is to be made good to them.
    That in case the Insurance stock bequeathed to Francis Henry Wagner, be made made good to him at the par value when the will was made, and the surplus of the fund constituted by the rents, dividends, <fcc., be deemed a specific legacy, there will be a deficiency to pay the 2500 dollars to Francis Henry Wagner, and 10,000 dollars to Godard Bailey, William H. Bailey and John Edwards Bailey, and in the proper marshalling of the assets on this point, your orators pray the aid and direction of this Honorable Court.
    And your orators would have offered to account and requested the parties to come to an understanding and account with them in the premises, but those parties or most of them are infants incapable of .giving consent. In tender consideration whereof, and for as much as your orators are remediless at law, and can receive relief only in this Honorable Court, where matters of this kind are peculiarly cognizable. To the end, therefore, that an account may be taken of the testator’s estate, and of your orator’s actings and doings in the premises. That the trusts of the said will may be declared, and the rights of the several legatees and devisees and the duties of your orators ascertained, and that your orators may receive such other and further relief as the natute of the case may require. May it please your Honors to grant unto your orators a writ of sub-a¿ respondendum, to be directed to Effingham Godard Wagner, Charles George Wagner, Robert H. Quash, junr., Thomas J. Legare and Maria Louisa Legare his wife, Edwin Adolphus Wagner, Francis Henry Wagner, Godard Bailey, William Henry Bailey and John Edwards Bailey, commanding them at a certain day and under a certain pain therein to be inserted, personally to be and appear in this Honorable Court, then and there to answer to the premises and to stand to and abide by such order and decree therein as to your Honors may seem agreeable to Equity and good conscience.
    And your orators will ever pray and so forth.
    Walker & KiNG, Complainants’ Solicitors.'
    The facts, as set forth in the bill, were in no material'degree controverted by the answers of the several defendants. The claims urged by them fully appear in their grounds of appeal from the Circuit decree and. order.
    After hearing the case his Honor pronounced the following decree:
    Dunkin, Ch. Although many points are presented for the determination of the Court, they may be governed by the application of a few generl principles.
    It is said the legacy to Francis Henry Wagner, and the legacy to the children of Charles G. Wagner, should be paid to the guardians of the minors. This depends on the intention of the testator, if it can be ascertained. The testator directs the income of the legacy to Francis Henry Wagner, and the income of the legacies to the young Baileys, to be under the case and management of their natural guardians. The testator understood, evidently, the distinction between a guardian appointed by the Court, and the father, a natural guardian. He has indicated how much of the legacy was to be taken from the care and management of the executors. He could not have doubted that, if any guardians were appointed, the office would be given to the father — and it would be unmeaning to direct the income to be under the management of one who was legally entitled to the custody of the principal.
    Francis Henry Wagner is entitled to fifty shares in the trust company, and it is not perceived that he can claim more. The only doubt arises on the subsequent words, “or the same amount of money, in case they should have been paid.” These terms are strictly applicable to the bond of Durand, and may be well applied to the government securities; but not to the shares in the Trust Company. They may be sold but they are not to be paid. The distinction is recognized by the Testator, in the subsequent clause, bequeathing a bond and Bank shares to the Baileys.
    
      Speers’Eq. 85,
    Innes v. Johnston, 4 Yes. 574.
    Cambridge v. Rous, 8 Ves. 12L
    The Court is unable to discover any authority for appropriating an-y part of the legacy given to Charles G. Wagner’s children, to the uses of the marriage settlement, under the circumstances which have occurred. The testator directs “such part of the eight thousand dollars as might be necessary,” <fcc. If seven thousand dollars had been necessary — If only three hundred dollars had been necessary — -it would seem that there could have been no room for argument — Does it make any difference that none was necessary ? The children were the special objects of this bounty.
    The next question, which it is thought important specially to notice, relates to the surplus, bequeathed to his eight grand children, after paying the legacies of sixteen thousand two hundred dollars. — “It may safely be affirmed,” say the Court in Pell v. Ball, “that, whether a bequest, couched in general terms, is specific, or otherwise, depends on this; if the things falling within the terms, when enumerated, (or, if they had been enumerated by the testator) are, in their nature, specific, then the legacy is specific, otherwise, it is not.” — “If the thing be capable of individuality” — “or if it be an assemblage of things,” or “something capable of being separated by sensible distinctions, as the property in a particular estate; in all such cases, the descriptions in the will set forth, with distinctness, the subject of bequest, and make it specific,” — all this is applicable to the assemblage of objects appropriated by the testator to raise the sixteen thousand dollars, and create the surplus bequeathed to his grand children. The only doubt suggested was as to the twenty two Bank Shares. But the direction to appropriate is the same as to sell, which implies ownership by the testator. This is confirmed by the residuary clause which includes, specifically, two hundred shares in the Bank T Charleston. Seeing ground in the will then for holding it specific, the Court is permitted to inquire “whether the effects of the testator afforded any foundation for it.” It is there ascertained that the testator left two hundred and two shares, and forty half shares, in the Bank of Charleston, which answered the bequest, and removes all question as to his intention.
    It remains only to offer some observations on the residuary elause as to the testator’s grand-children, the Baileys. The Court is here aided by the remarks of Sir William Grant. “It has been long settled,” says he, “that a residuary bequest of' personal estate carries not only everything not disposed of, but every thing that, in the e 'ent, turns out not to be disposed of“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.” — On these principles a lapsed legacy falls into the residuum. If the testator had, at the date of his will, and at his death, Nayal’s notes for ^1000 each, it would be difficult to contend that they did not pass as a portion of the residue ofhis estate, though not included ¿n specifications of the clause. — “Such an enumeration, under a videlicit, has been held,” says Sir Wm. Grant., in the same case, “only a defective enumeration, not a restriction to the specific articles. The residuary legatees are entitled to all the personal estate that turns out not to have been well bequeathed to others. But I think they are entitled to nothing more. “The net income of one year of the testator’s landed estate, stocks, bonds and Bank and Insurance shares,” had been previously appropriated for a particular purpose. He had no Bank shares but those included in this bequest and the residuary bequest to the Baileys. It is, therefore, plain that the income for one year of all these articles thus included in the residuary bequest, was subject to this condition or modification.
    It is true the testator directs that, if the bond of Fife be paid, or the Bank shares sold, the amount shall be made good, the bond for ten thousand dollars, the Union Bank shares at forty seven dollars, and the Charleston Bank at one hundred dollars per share. But it is perfectly clear that the testator neither contemplated any deficiency of assets, nor an intestacy as to any part of his estate. — The Baileys, being his residuary legatees, would have the fund from which the amount of the bond, &c. was to be made up, and the value of the shares was therefore immaterial to them. The testator was a man of figures as well as a man of fortune. He had fixed the legacies of the other grand children, and it may have been satisfactory to him to know what he left to the Baileys, and to show to them also, that in giving them the residue, he did not intend to leave them merely a remnant. It is a consolation to hope that if this construction be erroneous it will be immaterial, as the fund will probably be sufficient to satisfy all the legacies.
    It is declared that the sale of the negro George is 'pro tanto an ademption of the legacy to Maria Louisa Legare; and that so much of the income of the property bequeathed to Francis Henry, as may be necessary, be applied to his maintenance, and to that end, be paid into the hands ofhis father Effingham Wagner. And that the principal, and so much of the income of that property as may be spared, be retained by the executors, and invested, under the direction of one of the Masters of this Court, for the benefit of said infant; and it is declared that the infant is not entitled, under the bequest of the Insurance Stocks, to anjr thing more than the stocks as they existed at the time of testator’s decease. And it is declared that the sum of 8000 dollars, bequeathed to the children of Charles Wagner, enures to the benefit of all the children, of the said Charles Wagner, bom and to be born, and that the same be invested by the executors, under the direc-v tion of one of the Masters of this Court, in trust for the children of Charles Wagner; and that it be referred to the Master to enquire whether the father of the said infants is of sufficient ability to maintain them.
    And it is ordered that Mr. Gray, one of the Masters of this Court, do take an account of the estate of the testator which has come to the hands of the executors, and of his debts and legacies; reserving for the consideration of the Court, after the hearing of his report, such directions as may be proper to be given for the settlement of the estate.
    James W. Gray, Esq. to whom it was referred to enquire and report on the circumstances of Charles G. Wagner, reported that he had found him in such indigent circumstances as to render him unable to support his infant children, (the legatees,) and recommended that the sum of $400 per an-num, payable semiannually, be allowed him to aid in their maintenance and education. And that $2U0 be allowed for his immediate relief.
    Upon his report, his Honor the Chancellor made the following order.
    DuNkin, Ch. Special report of Mr. Gray, dated 8th July 1847. Ordered, on motion of Mr. Yeadon, Solicitor for and on behalf of the minors, Thomas Rivers Wagner and Charles G. Wagner, Junior, that thereport be filed. It is further Ordered, that the executors of R. Godard deceased, pay to Charles G. Wagner, the father of the minors, from the income of the legacy of eight thousand dollars bequeathed to the children of the said Charles G. Wagner, the sum of two hundred dollars for their immediate relief, and that they pay him the sum of two hundred dollars for the support, maintenance and education of Thomas R., and one hundred dollars for the support and maintenance of Charles G. Wagner, Jnr. the said payments to be made one half on the 1st January, and one half on the 1st. July of each year — the said father to account annually before the Master for the disbursement of the said fund. — Parties to be hereafter at liberty to apply for such further order as circumstances may render necessary. Costs of this application to be paid by the executors, • out of the income.
    
      Grounds of Appeal.
    
    The trustee of Charles G. Wagner and wife appealed, on the grounds—
    1. That the trust estate of Charles G. Wagner and wife, having been incumbered with a debt of $4000, at the date of testator’s will, and testator having directed by his will the extinguishment of that incumbrance, out of the legacy of $8000, bequeathed to the children of said Charles G. Wagner, this was equivalent to a bequest of $4000 to the trust estate, and the fact that the incumbrance on the said trust estate ywas removed by the sale of the incumbered house and lot, previous to testator’s death, does not divest the legacy.
    2. That it is clear, from the language of the will, that the testator bequeather $4000 of the legacy of $8000 to the said trust estate, and "the surplus” only to his great-grand-children, the children of the said Charles G. Wagner,
    Charles Macbeth, defendant’s Solicitor.
    Charles G. Wagner appealed, on the grounds :
    1. That, as guardian of his children, by appointment of the Court, he is entitled, on giving bond with good and sufficient security, to receive from the executors the corpus of the legacy bequeathed to them, or at least one half thereof, the executors being directed to invest “the surplus” only for the jisc and benefit of the children.
    2. That, as guardian as aforesaid, he is at least entitled to receive from the executors the entire income, past and future, of the legacy bequeathed his children.
    f. That, if not so entitled, he is entitled, having shown his pecuniary inability to support and educate his children, to receive the maintenance allowed him by the Court, without accountability for the expenditure of the same; and the allowance should have been to the full extent recommended by the Master.
    4. That there is no residuary bequest, properly so called, in the testatoi’s will, and this defenda: t is therefore entitled to an aliquot share, with the other grand-children of testator, of the undisposed residuum of the estate, if any there shall be •after making good the legacy to the|testator’s grand-children, the young Baileys.
    Charles Macbeth, defendant’s Solicitor.
    The minor, Thomas Rivers Wagner, appealed, on the grounds:
    1. That he,-being the only child of Charles G. Wagner living at the testator’s death, is entitled to the whole legacy of $8,000, bequeathed by the testator to the children of Charles G. Wagner.
    2. That, if not entitled to the whole of the said legacy, he and his brother Charles G. Wagner, Jnnr., are entitled to the same, in equal proportions, in exclusion of children hereafter to be bom to their father, he and his said brother having been and being the only persons answering the description of “children of testator’s grand-son Charles G. Wagner,” at the time appointed for the distribution of testator’s property, viz : one year after testator’s death.
    Richard Yeadon, defendant’s Solicitor.
    
      The -minor, Charles G. Wagner, Junr., appealed, on ground, the
    That the children of Charles G. Wagner, hereafter to be born, are excluded from all participation in the legacy of $>8000, bequeathed by testator to the children of his grandson Charles G. Wagner, no children of Charles G. Wagner being entitled to the benefit thereof but such as answered that description at the time appointed by testator for the distribution of his estate, viz: one year after his death.
    Richard Yeadon, defendant’s Solicitor.
    The defendant, Francis Henry Wagner, appealed, on the grounds, ■
    1. That he is entitled to have his legacy of fifty shares m the Charleston Insurance aud Trust Company, made up to their par value at the date of testator’s will.
    2. That he is entitled to an equal share with the other grand-children of testator, of the undisposed residuum oí his estate, if any, after making up the legacy to the young Baileys.
    3. That the corpus of the legacy to him should be paid over to his father and natural guardian Mr. Effingham Wagner.
    J. S. Rhett, defendant’s Solicitor.
    Thomas J. Legare and wife appealed, on the ground,
    That she is entitled to an equal share with testator’s other grand-children, of the undisposed residuum of his estate, if any, after satisfying the legacy to the young Baileys.
    J. S. Rhett, defendant’s Solicitor.
    Effingham Godard Wagner and Edwin Adolphus Wagner, severally appealed,
    On the ground last above mentioned.
    J. S. Rhett, defendant’s Solicitor.
   Dunkin, Ch.

delivered the opinion of the Court.

This Court is of opinion, that the decretal order in relation to the children of Charles Wagner must be modified — only such children as were in esse at the death of the testator, and such as were born within one year after his death and were alive at that time, are entitled to take; and a reference is directed to the Master to ascertain and report, as to those who fall within this description.

A majority of the Court is also of opinion that it is the duty of the executors to invest the legacy bequeathed to the children of Charles Wagner as provided by the will, and when a guardian shall have been appointed, to transfer the capital to such guardian.

In all other respects the decree of the Circuit Court, as also the decretal order of the 9th July, are affirmed, and the appeal dismissed.

JohnstoN, Ch. Caldwell, Ch. Dargaw, Ch. concurred.

Decree modified.  