
    *Jane Flood ads. Lewis Howser, Adm’r. of Sarah J. Carr.
    A. by bis last will and testament, bequeathed various personal property to his daughter B., to be delivered to her on the day of her coming of age, or her marriage; and by a subsequent clause, limited a remainder to his three sisters, if B. should die before age or marriage; by a codicil made soon after, A. bequeathed a negro woman to B., and declared that this codicil should be considered as part and parcel of his last will and testament, and that all things therein mentioned should be faithfully performed. Held, that the bequest contained in the codicil, was not subject to the limitations of the will, and consequently that B. took an absolute estate in the negro woman.
    This was an action of trover for a negro; tried at Orangeburg, Fall Term, 1818, before Mr. Justice Colcock.
    Hans Oarr, by his last will and testament, bequeathed to his daughter Sarah Jane Oarr, six negroes, and the remainder of this property not otherwise disposed of by his will to be delivered to her at the day of age, or marriage ; and by a subsequent clause, says, if she should die before she comes of age, or marries, then, and in that case, he gives her part of his estate to his three sisters, to be equally divided among them, share and share alike, to them and their heirs ; which will is dated 5th November, 1796. By a codicil, dated 7th November, 1796, two days after, he gives and bequeaths to his said daughter, Sarah Jane Oarr, one hundred acres of land, and a negro woman named Peggy, the subject of this suit, and declares that this codicil shall be considered as part and parcel of his last will and testament, and that all things therein mentioned, shall be faithfully performed.
    The question made below, was, whether the daughter should take an absolute estate in the wench Peggy, as given in the codicil, or whether the bequest should not be considered as limited over, by the clause in the will.
    It was conceded, that if she took the wench absolutely, that the plaintiff was entitled to recover; and the Court being of that opinion, a verdict was found for the plaintiff.
    
      *A new trial was now moved for on the ground :
    That by the legal and proper construction of the will and codicil of Hans Oarr, there is a limitation over, from Sarah Jane, the legatee, to her three aunts, which vested the estate absolutely in them, upon the death of the said legatee.
    
      Stark, solicitor, for the motion. Felder, contra.
   The opinion of the Court was delivered by

Coucock, J.

The wench Peggy, named in the codicil, was not one of those specifically given in the will, and would have passed (subject to the limitation) to the daughter under the words “ remainder of my estate,” had the testator not made the codicil. Where then was the necessity for making a codicil ? It was according to the argument of the counsel, a work of supererogation. It is clear that the intention of the testator was to do more for his daughter than had been done in the will; and the law puts the question out of doubt. The codicil being but an expression of the testator, as to the disposition of his estate, shall take effect, though repugnant to some of the clauses of his will, and will be considered as a revocation of all such as are inconsistent with its provisions. “ Where a codicil is said to be a part of, or incorporated into a will, this union must be understood to be the effect of its first acting upon the will, by its own force, and attracting it to itself.” Roberts on Wills, 477, 1st ed 407, 2d ed. “ The business of a codicil,” says Powell on Devises, 24, “ by intendment of law, was to alter, explain, add or subtract, something from the will.” And again, in p. 541-44, “ a codicil likewise, if inconsistent with a preceding will, is, in law, a revocation of it.” That is so inconsistent, that both cannot stand. For “ where a legacy is given to a person by a codicil, as well as by a will — whether the legacy given by the codicil, be more or less than, or equal to the legacy given by the will, the legatee shall take both.” 6 vol. Jacob’s Law- Dictionary, Tomlin’s ed. 426.

In the case before us, the testator was only giving *by the codicil the absolute right to the property which, by his will, would-have passed, subject to a limitation over. It is manifest that this was the intention of the testator, and equally so, that his intention is supported by the law.

The motion is therefore dismissed.

Nott, Che ves, Gantt and Johnson, JJ., concurred.  