
    
      Ex parte F. F. Calmes.
    No mode of investment laving been prescribed by the will, the Court ordered a residuary trust fund to be invested in land and negroes, subject to tie trusts and limitations of the will. [*113]
    Thomas Beasley, deceased, by his will bequeathed certain negroes in trust for the use and benefit of his daughter, Mrs. Jane Williams, during her life, and at her death to her children; and after making several devises, he directs his executors to sell the remainder of his real and personal estate, and giving an equal portion of the proceeds to Mrs. Williams, directs that it shall also be held in trust, and subject to the same limitation as the negroes. The husband of the cestui que trust owns no land. Under these circumstances the petitioner, who is the trustee, filed this petition, praying that the residuary legacy may be invested in the purchase of land and slaves. The Commissioner, on a reference ordered for that purpose, reported these facts, and recommended the investment.
    Chancellor Johnston dismissed the petition, and the petitioner appealed.
   *Harper, J.

The petition is. not to make any disposition of the slaves whatever, nor to change any investment directed by the will. It is to obtain the sanction of the Court for the investment of a-residuary trust fund, where no mode of investment has been directed by the testator. On this subject, we must rely on the opinion of the Commissioner, which seems well supported by the testimony.

To prevent future difficulty, it is proper to direct that the conveyance to the trustee shall be on the trusts of the will. I do not mean that the terms of the will shall be adopted in the conveyance, for the same words have often a different effect, in a deed or a will, but that the will shall be referred to, and the trusts of the deed declared to be the same with those which are created by the will, with respect to the fund in question.

It is ordered that the order of the Chancellor be reversed, and the report of the Commissioner confirmed and made the decree of the Court.

Johnson and O’Neall, Js , concurred.

J. J. Caldwell, for the petitioner.  