
    W. B. Boyd and Wife and another vs. John Satterwhite, James Payne, and others.
    
      Will — Bequest of female slaves “and their increase” — “All my bank stock of money.”
    
    Bequest of female slaves “ and tlieir increase,” held not to include descendants of the slaves horn before the execution of the will.
    Bequest of “all my bank stock of money,” held to carry a sum of money deposited by the testator, at different times, in a neighboring bank, and for which he held certificates entitling him to interest on the various sums at four per cent., or at five per cent, after six months; it not appearing that the testator owned any thing else to which the terms were applicable.
    BEFORE O’NEALL, 0. J., AT NEWBERRY, JUNE, 1862.
    The will of the testator in the cause, John W. Payne, bore date and was executed March 17th, 1857. Its material provisions are as follow:
    “Third. I also give and bequeath to my wife Lucinda Payne a lot of negroes, namely, Allen, Milly, Hampton, Elmore, Margaret and her increase, Fanny and her increase, Mary and her increase, Susannah and her increase, and all the household and kitchen furniture, and one year’s of provision, to have and to hold the above-named negroes, and dispose of as she pleases at her death.
    “Fourth. I also give and bequeath to my wife Lucinda Payne one lot of negroes, namely, one girl, Big Sue, and her increase, one boy, Phil, Lewis, Nat, Tom, Jim, Ned, Harriet and Isabel, and their increase, two teams of mules, two wagons, and plantation and blacksmith tools, to have and to hold during her natural life, and at her death to be sold, and one-half to go to my wife Lucinda Payne, to dispose of as she pleases, and the other half to be equally divided between brother James Payne, David Payne,.and Catharine Lark.
    “ Sixth. I give and bequeath to my wife Lucinda Pavno all my bank stock of money, and a judgment I hold on Mildridge and Milton Grant, to dispose of as she pleases ; and all my outstanding debts I give to my brother James Payne, and David Payne, and Catharine Lark, to be equally divided between them.
    “Seventh. I give and bequeath to my nephews, John Satterwhite and Richard S. Satterwhite, all my interest in the plank-road, and a scholarship in the university at Green-ville, and five hundred dollars to each of them, to be paid out of my estate.
    “Eighth. I now desire that all the remainder part of my negroes be sold by families, and all the remainder part of my property be sold at my death, and one-half to go to my wife Lucinda Payne, to do as she pleases with at her death, and the other half to be equally divided between brother James Payne, David Payne, and Catharine Lark, except five hundred dollars to be paid to Catharine Boazman out of my estate last mentioned.”
    The testator died shortly after the execution of the will, which was proved before the Ordinary, and the defendants, John Satterwhite and Richard S. Satterwhite, qualified as executors. Of the negroes named in the third clause of the will Allen was the child of Eanny, and Mary and Susannah were the children of Margaret, and the females specifically bequeathed by the third and fourth clauses of the will had a considerable number of other descendants, born before the execution of the will. The testator had, within a year before he made his will, deposited in the Bank of Newberry vari: ous sums of money, amounting in all to about six thousand dollars, for which he held certificates of the bank declaring that he was-entitled by agreement to interest thereon at the rate of four per cent., or five per cent, after six months. In April, 1857, tbe executors sold all the negroes not named in tbe will on credit.
    Lucinda, the widow of the testator, had intermarried with the plaintiff’ "William B. Boyd, and this bill was’ filed by Boyd and wife and tbe trustee of their marriage settlement against tbe executors of the will and others, for an account. The matters in dispute related to the increase of the female slaves and the money on deposit in the Bank of Newberry. The decree of his Honor, Chief Justice O’Neall, who presided at the bearing, is as follows: ■
    O’Neall, C. J. The first question made in this case is as to the increase of tbe negroes. The third and fourth clauses of tbe will of John W. Payne, deceased, contain the following bequests: “ I also' give and bequeath to my wife Lucinda Payne a lot of negroes, namely, Allen,' Milly, .Hampton, Elmore, Margaret and her increase, Fanny and her increase, Mary and her increase, Susannah and her increase.” .■
    “I also give and bequeath to my'wife Lucinda Payne one lot.of negroes, namely, one girl, Big Sue, and .her increase, one boy, Phil, Lewis, Nat, Tom, Jim, Ned, Harriet and Isabel, and their Increase'.” - . • .
    Tbe term increase, by the case of Tidyman vs. Bose, Eich. Eq. Cas. 294, was held to mean increase subsequent to the vesting of the estate in tbe mother. ■ That case' satisfactorily overruled Haynsworth vs. Cox, and Gayle vs. • Cunningham, which had previously ruled, and held that the increase' applied as well to the ante nati as well as. the post nati.- I think that the case of Tidyman vs. Bose has fixed the meaning'with my full assent. The only question now. open to me is, whether this case is an exception. I think, where the bequest is of a female slave,'who is past the age of breeding, with the'super-added words, • “ and her increase,” ■ that such' words ' would necessarily, carry the ante nati... That would apply to Margaret and Eanny and their increase; and T think such increase as these women had, whether born before or after the vesting of the estate in Lucinda Payne, passed to her.
    The bequest of Milly is without the words, “and her increase.” She is therefore bequeathed as a barren stock. None of the other women were past the age of bearing children, and they are under the rule of Tidy man vs. Bose, and their children born before the bequest in favor of Lucinda do not pass.
    In the sixth clause the testator uses the words, “I give and bequeath to my wife Lucinda Payne all ' my bank stock of money.’ ” What did he mean ? Generally parol is not allowed to alter or explain a will, but it is permissible to ascertain in what sense the testator spoke generally of the subject-matter of the devise. The testator had no bank stock, but he had a large sum on deposit in the Bank of Newberry, which he frequently spoke of as his “ bank stock 'of money.” I think that was'what he meant in the sixth clause.
    It is therefore ordered and decreed that the complainant, Lucinda, is entitled to all the increase of Margaret and Fanny, and the money on deposit in the Bank of Newberry.
    It is therefore further ordered and decreed that it be referred to the Commissioner to ascertain and report the increase of Margaret and Fanny, and the sums for which they were sold by the defendants, (the executors,) and the interest thereon; and also that he report the sum of money which the testator had on deposit in the Bank of Newberry, by whom it has been received, and the interest thereon.
    The costs of this case to be paid out of the estate of John W. Payne, deceased, in the hands of the defendants.
    The defendants, James Payne and others, appealed, and moved this Court to reverse the decree, upon the grounds :
    1. Because his Honor erred in deciding that the term “increase” carried the ante nati issue of the negro women, Margaret and Eanny, to the widow, and will insist that the true construction of the term "increase,” according to our decisions, when applied to a negro woman, only carries the after-born issue; and that it makes no difference whether the woman to which the term is applied be child-bearing or not at the date of the will.
    2. Because his Honor was mistaken in supposing 'that Margaret and Eanny were “ past the age of breeding.” It is not so alleged in the bill, nor shown by the evidence. It is alleged in the bill that Margaret was "fifty years old,” and that “ Eanny had not had a child for twenty-one years.” Whereas, the truth is, that although Eanny had not had a child within twentyrone years before the filing of the bill, yet she was only at the date of the will thirty-six years,old; and it does not appear from the bill or evidence why she was not child-bearing, whether for want of a husband or not, and Margaret had an infant child at her breast under a year old at the date of the will, which was sold .and purchased by the widow at the price of one hundred dollars, as appears by the sale-bill, and cannot be denied by her; and it is said she has had another child since the sale.
    3. That his Honor erred in deciding that the words, “ my bank stock of money,” carried to the widow a debt due testator by the Bank of.Newberry, although the testator gave in express terms all his outstanding debts to his brothers and sister, defendants in this case.
    4. Because his Honor erred in admitting parol evidence to explain an ambiguity apparent on the face of the will, and not raised by parol.
    The complainants also appealed from so much of the decree as rejects their claim to the increase of the slaves bequeathed to the testator’s widow, under the fourth clause of his will; and also from so much of said decree as omits in the order of reference the said widow’s rights under the eighth and residuary clause of said will, on the grounds:
    1. Because, by a proper construction of the testator’s will, with a view to the circumstances by which he was surrounded, ' he evidently intended and did bequeath the slaves, with'their increase, then in issue, mentioned-in the fourth clause of his will, to Lucinda Boyd, his widow, and that parol testimony was competent to show in what sense he used the word “increase.” - . . ; , .
    2. Because it is respectfully submitted that his Honor inadvertently omitted to include in his order of reference the claim of the testator’s widow to an account from the executors of' one-half of the residuary estate, under the eighth clause of his will, and about which there was no dispute.
    
      Fair, Simpson, for defendants.
    
      Sullivan, for plaintiffs.
   The opinion of the Court was delivered by ■

’WARDLAW,. J.

In Seibels vs. Whatley, 2 Hill Ch. 607, there was no circumstance explanatory of the meaning of the testator in the bequest of “Nance and her increase,” and, in analogy to the ruling in Tidyman vs. Rose, Rich. Eq. Cas. 294, it was held that only the after-born increase of Nance passed to the legatee. In Donald vs. McCord, in the Equity Court of Appeals, Rice Eq. 330, two Chancellors, in opposition to ' a third who dissented, and to the decree of the Circuit Chancellor, who was absent, without special reference to'the cir- . cumstance which had been- supposed to explain the meaning of the testator, held that the case could not be distinguished in principle from Seibels vs. Whatley, and that under the bequest of “ Sary and all her increase” the children of. Sary born before tbe making of tbe will did not pass. In Donald vs. Dendy, 2 McM. 124, involving the same will, 'which' had been construed in Donald vs. McCord, the Court of'Errors, notwithstanding many considerations drawn'from the'will' itself, and from the circumstances which surrounded the testator, which had been urged as indicative of a contrary meaning of increase there intended, adhered to the decision in Seibels vs. Whatley as a general rule, and held the rule applicable to that case. After this current of decisions, an exception to the rule could be made only by very strong circumstances. Whether in a case where a female slave, contained in a bequest, was plainly beyond the age of childbearing, and nothing else explanatory of the testator’s meaning appeared, the addition of the words, “ and her increase,” would carry her children previously born, and, if her children, her grandchildren also, it is not necessary now to decide; for, upon examination of the testimony in this case, we find' that, at the time when the will was executed, Margaret had at her breast an infant less than twelve months old, and that Eanny, then not forty years old, had but one child, Allen, and he is named in the bequest'. Mary and Susannah, children of Margaret, are also named. . Opposed to,these circumstances, contradictory of the supposed exception, there is nothing but the expression of the testator’s desire, in the eighth clause of his will, that the residue of his negroes should be sold “by families,” from which it is well argued that it could not have been his intention to separate Margaret and her infant. This humane provision concerning the residue, accompanied by the direct evidence as to the testator’s intention, which was taken de bene esse, may show what he’ would have directed if the case of Margaret and her infant had'been suggested for his decision. But the direct evidence of intention, distinguished from evidence to show the meaning of the words in the will, cannot be admitted: directions concerning the residue affect only by inference tbe question wbat enters into tbe residue; and neither the bard rule of Tidyman vs. Rose, nor tbe general rule as to increase, laid down in tbe cases above cited, can be controlled by an uncertain inference, wbicb is itself counterbalanced by other stronger inferences. So much of tbe circuit decree as relates to tbe increase of Margaret and Fanny must then be reversed.

Wbat is meant by all my bank stock of money,” in tbe sixth clause of tbe will? We must put out of view, as inadmissible evidence, tbe conversations between tbe testator and bis neighbor, who drew tbe will, and all tbe other evidence, going to show wbat tbe testator intended to express, and not wbat bis words do express; for here is not a description unambiguous in its application to each of several subjects, nor a description inapplicable with certainty to any subject, but a description inaccurate and capable of various interpretations, but, when interpreted, applicable to only one subject, and to that with tbe certainty wbicb attends tbe interpretation adopted.

Tbe case of Richardson vs. Watson, 4 B. & Adol. 800, and illustrations used in tbe case of Hissocks vs. Hissocks, 5 M. & W. 363, 1 Nev. & Man. 575, sustain tbe admissibility of parol evidence to show what subject was known to a testator by the name or description which be used. (Wig. on Wills, pi. 152.) The evidence in the case before us is, that tbe testator was accustomed to call bis money deposited in the Bank of Newberry bis bank stock, not bis “bank stock of money,” as seems to have been understood by tbe late Chief Justice presiding in tbe Circuit Court. This evidence is, then, of doubtful effect, and, looking only to tbe will and tbe circumstances wbicb serve to put us in tbe situation of tbe testator, we will proceed to tbe interpretation of tbe words used.

Tbe testator was an uneducated planter, little acquainted with legal or commercial terms, and be employed a like person. to draw his will. He had no bank stock, nor special deposit of coin in any bank, nor store of money which had been drawn from a bank. But he had four or more certificates, expressing that, within a year preceding the execution of his will, he had deposited various sums of money in the Bank of Newberry, and was by agreement entitled to interest thereon at four per cent., or five per cent., after six months; and upon one of these he had received fifty dollars for interest after the expiration of six months from the first deposit. The money, which was thus subject to be drawn at his pleasure, would probably neither by him nor by a person better acquainted with the phraseology of trade have been spoken of as an " outstanding debt.” It was the only money he owned which was in any way connected with a bank, further than this, that he had on hand about seventy-five dollars of money, some or all of which was in current bank bills. Banh money is, however, a very unusual phrase for bank bills, and would of itself be more properly applicable to money in bank, especially when we see that the will intimates no distinction between coin and bills. It is true that the will makes no mention of money on hand, but it contains directions for payment of money much exceeding the sum which was on hand, which directions, if the money in bank and the outstanding debts go to legatees, must in contemplation of the testator have required expenditures from the sales that were directed. Bank stock of money” is stronger in its application to money in bank than banh money; for it seems to denote an accumulated store of money distinguished from other money by the circumstance that it is somehow associated with a bank — either in a bank, or drawn from a bank. As my iron safe store of money would carry a sum in the iron safe, so bank stock of money,” when there is no other subject to which it is applicable, must carry a sum of money in the bank.

It is, however, said that the testator’s money was not in the bank, but was’.lent to the bank, and disbursed-by the bank.' No money lent is'ever expected to-be returned in kind, yet a bequest of money'lent to'A would certainly-carry an equivalent sum, and the certificates, calling the'testator’s sums of money deposits, and securing to him the right to reclaim them at his pleasure, imply that equivalent sums were always in the bank, subject to his order.- ■■ ■ - ■

Chapman vs. Reynolds, 6 Jur. N. S. 440, is' an authority for maintaining that even stock in the public funds may pass under the words, “all the money I may die’possessed of,” where'there, is no other property upon which the bequest might: operate. The ordinary use of the' word stock, to signify shares in the capital of a bank or other company, does-not appear,-from'the will in the case before us, to have been known to the testator; for he gave his stock in the Plank-road Company by the words, “ my interest in the plank-road.” Our case of McCall vs. McCall, 4 Rich. Eq. 447, sustains the efficacy of evidence concerning the circumstances of the testator and his affairs, to explain the meaning of his words, and apply an imperfect 'description to a subject, where there is no other subject to which it is applicable. •' ■ ' • •

This Court is, then, not only constrained to believe, but feels an assured legal persuasion that the words, “all my bank stock of money,” in John W. Payne’s will, are applicable to the money secured by the certificates above mentioned, and to that only.

The inadvertent omission which is mentioned in the complainants’ second ground of appeal must be supplied.

It is therefore ordered that it be referred to the Commissioner to take a full account of the actings and doings of the executors of John W. Payne, deceased, embracing ■ all sales made by them, and of all matters of account between the said executors and other parties to this suit, and between any two or more of those other parties touching the execution of tbe will of tbe said John .W. -Payne; and that tbe Commissioner do, in conformity with this opinion, ascertain the sum due to each party and from whom, and report the same, distinguishing between the various' bequests made to the complainant Lucinda, some absolutely, some for life with power of disposition in the whole, and some for life with power of disposition in part.

Dunkin, C. J., and Inglis, J., concurred.

Decree modified.  