
    SAMUEL NELSON & AL. vs. ELIZABETH NELSON & AL.
    An indorsement, alone, of a bill or note, even though it be in full, is not suf. ficient to pass the interest in it. There must be a delivery, either to the endorser himself or to some one for him.
    Where slaves are bequeathed specifically to different persons, and the executor, being compelled by circumstances to keep possession of them for some time after the death of the testator, either receives profits or incurs expenses, such profits or expenses must be attached to and go with the slaves, from which they respectively arise.
    A testator, in one clause of his will, says “I give to my daughter E. a negro woman Leah and her baby Anderson, her youngest child living.” In another clause he says, * ‘if there should be any increase from my negro woman Leah, 1 want that equally divided between my three daughters, J. E. and A , some to buy and pay the others, as I would not wish any sold out of the family.” Held, that the increase here spoken of meant the increase born during the life of the testator.
    The case of Petway v. Powell, 2 Dev & Bat. Eq. 308, cited and approved.
    Cause removed from the Court of Equity of Guilford' County at the Fall Term 1849,
    James Nelson, ofGuilford, made his will on the 12th of September 1S43, and died on the 6th of January 1844. He devised and bequeathed certain estates to his wife. The will then makes the following dispositions: “I give to my son Lemuel a negro boy Elijah, and his equal part of my personal estate not otherwise disposed of hereafter : To my son John E. one negro boy, Jesse, and $100, and his equal part of my personal estate not otherwise disposed of. To my daughter Jane C. Magee, during her life, and then to the heirs of her body a negro girl, Hannah, and her equal part of my personal estato not otherwise de* vised. To my daughter Elizabeth one negro woman, Leah and her baby, Anderson. her j'oungest child living, one horse worth $60, one cow and calf, feather bed and furniture, one desk and half the cupboard ware and half the kitchen furniture, saddle and bridle, and four head of sheep, and $100, and her equal part of my personal estate not otherwise devised : To my daughter, Aley Amanda, my two negro girls, Eliza and Nelly, one horse, saddle and bridle worth $75, one cow and calf, one feather bed and furniture, one desk, half the cupboard ware, and half the kitchen furniture, lour sheep, and $150 in cash, and her equal part of my personal estate not otherwise devised : „To my son James my two negroes, George and Priscilla, one horse and saddle worth $75, one cow and calf, one feather bed and furniture, four sheep, one sow and pigs, his choice, $200 in cash, my rifle gun, and his equal part of my personal estate not otherwise disposed of: All my household furniture, not disposed of hereto-' fore, to be equally divided between my three children, Elizabeth, Aley Amanda, and James. My will is that my land be equally divided between my three sons, Lemuel, John, and James; and when divided into three equal parts by three disinterested men, James is to take choice of the three lots, and Lemuel and John must draw for choice if they cannot agree. And if there should be any increase from my negro woman, Leah, I want that equally divided, between my three daughters Jane Magee, Elizabeth, and Aley Amanda; some to buy and pay the others, as I would not wish any sold out of the family.”
    The testator appointed his son Lemuel his executor, and the will was proved by him as a will to pass both real and personal estate.
    The testator’s son John lived in Missouri at the making of the will, and died there on the 28th day of December 1843, intestate, leaving an only child, Angenetta, an infant at the date of the will. The testator’s real estate consisted of a.tract containing 039 acres, which he owned in fee, and, on the 20th of December 1843, he sold and conveyed 90 acres thereof to one Bowman at the price of $300, and took his bond therefor, payable to himself. The testator made the sale with the view to give his son John money in place of land ; and accordingly he endorsed the bond in full to his son John, then in Missouri, and had the endorsement witnessed, saying at the time, that, as John lived in Missouri, money would do him more good than land in this State,and puttingthe bond, thus endorsed, among his own bonds and notes, where it remained up to his death. Administration of the estate of John Nelson was also granted to Lemuel Nelson, and he was likewise appointed guardian to the infant Angenetta. Upon that state of the facts several questions arose as to the rights of the parties in respect of Bowman’s bond ; whether it belongs to the administrator of the son John, or falls into the residue of the personal estate of the testator; and whether, if the former, the right of Angenetta, the child of John, to the share of the land and the specific legacies to her father would thereby be affected, and to what extent.
    The different pecuniary legacies amount to $550, and the value of the horses and saddles and bridles given to three of the children is $210, making together the sum of $760 ; and the executor states, that the residue of the estate (not specifically given) including debts to the testator, amounted to the sum of $616 16 only, and that his disbursements and charges are $482 34 — which leaves only a balance of $133 72 applicable to the satisfaction of the legacies of $760, provided Bowman’s bond should not form part of the residue. If that should fall into the residue, then the sum of @345, received on it for principal and interest, is to be added to that of @133 72 — making an aggregate of $477 72, applicable to those legacies-. The testator did not own, when he made his will or deed' any horses, saddles, or bridles, which could be delivered in satisfaction of the legacies of those articles. Questions have arisen, whether in case of a deficiency of the residue of the estate to discharge all those legacies, the other donees in the testator’s will ought to contribute, in proportion to the value of their several gifts to make up the deficiency ; and, if not, how those general legatees are to abate between themselves.
    .The widow of the testator attempted to dissent from the will, and filed a bill against the executor to have the benefit of a dissent; which put it out of the power of the executor to settle the estate or deliver over the specific legacies, until the decision of that suit against the widow in 1849. While it was ponding, the executor hired out such of the negroes as would bring wages, and for the maintenance of some he was obliged to pay. A question has arisen, whether the hires and expenses during that period fall into the general account of the estate or belong to or must be borne by the several legatees, to whom the particular slaves are given.
    , Between the making of the will arid the death of the testator, the woman, Leah, given to Elizabeth, bore no other child ; but she hath since had three ; and a question has. arisen, whether they belong to Elizabeth exclusively, or are to be divided between her and her two sisters.
    The bill is filed by Lemuel Nelson and the infant An • genetta against the other son James and the testatox-’s three daughters, to obtain the opinion of the Court upon the proper construction of the will, and to have a declaration of the rights of the several parties under it and upon the other facts stated.
    
      Iredell, for the plaintiff.
    No counsel for the defendants.
   Ruffin. C. J.

Although the point seems to present but little difficulty, yet it is not worth while to consider what effect, if any, the endorsement of Bowman’s bond to John Nelson could have on the devises and bequests to him» had the endorsement been an effectual transfer of the bond ; because the Court is of opinion, that the bond was not transferred, for want of a delivery to the son or to some one for him. In Bay ley on Bills 9S, it is said, that bills or notes are assigned either by delivery, or by endorsement and delivery; and that is adopted by Byles 110. In several modern cases, the same doctrine has been judicially' held. In Marston v. Allen, 8 M. & W. 484, one Harriss, an officer of a bank, endorsed a bill in blank, and delivered it to another servant of the bank, to be kept as the property' of the bank ; but he. mala fide, passed it to the plaintiff, who sued the acceptor on it; and upon a plea, that Harriss did not endorse the bill to the plaintiff, it was held that the endorsement, actually appearing on the bill, was not legally an endorsement, that would transfer the bill to the plaintiff, because it was not completed by the requisite delivery from Harriss to the plaintiff inasmuch as his delivery was to his fellow servant for a particular purpose, in fraud of which the plaintiff obtained the bill from that person. But the previous case of Brind v. Hampshire, 1 M. & W. 365, is yet more in point. It was trover for a bill of exchange, endorsed by one Usher to the plaintiff’s wife, in payment of a debt from Usher to her. It was remitted by Usher to the defendant, his agent, who got the bill accepted, and advised Mrs. Brind that he was directed by Usher to pay her some money, and-desired to be informed how it should be delivered. But, before he parted from the bill, he was instructed by Usher to keep it, and not deliver it to the plaintiff or his wife ; and for that reason he kept the bill and refused to deliver it. The pleadings were drawn out to a sur-rejoinder, to which there was a demurrer, on the ground, that it was admitted thereby, that the defendant was the agent of Usher, and that the bill remained in his hands the same as in Usher's, endorsed, but not delivered, to Mrs. Brind, and. so, no property in the bill vested in her or her husband; and there was judgment for the defendant thereon. It was insisted for the plaintiff, that it was not competent to the defendant to say he did not hold the bill for the person to whom it was specially endorsed and was to be delivered in payment of a debt; especially after having got it accepted with the endorsement on it, and given notice to the plaintiff. But the Court did not think those circumstances changed the character, in which the defendant stood to the parties and held the bill, as the agent, namely, of Usher; and therefore that there was no transfer of the property in the bill. Inthe beginning of the argument, the plaintiff’s counsel contended that he ought to recover, because the bill was endorsed to the plaintiff’s wife, and that passed the right to the plaintiff; and that, in the case of a special endorsement to a particular part}, it was not necessary to aver a delivery or shew one. But Baron Parke replied, that it was not necessary to aver the delivery specially, because it was implied in the allegation of endorsement; yet that a delivery to the endorsee was necessary to pass the bill. And Lord Abinger puls the very case now before us. by supposing that Usher, after endorsing the bill, had kept it in his own possession ; and he asked, would the plaintiff have any property in it ? It is clear he held, that he would not, for he gave judgment for the defendant, because, he said, the case, as to him, was exactly the same as if Usher had carried the bill for acceptance, after endorsing it to the plaintiff, and afterwards renounced his intention of paying it over to the party, whose name he had endorsed on it. The same principle is deducible from the two other cases of Adams v. Jones, 12 Adol. & El. 455, and Williams v. Everett, 14 East 582. It seems therefore established, that, even by a full endorsement, a note or bill is not transferred to the endorsee, if the endorser keep it in his own possession ; nor, indeed, is the property passed by such endorsement, though the bill be sent to the agent of the endorser for the purpose of handing it to a creditor of the endorser as a payment, provided the delivery be countermanded before its completion. The present case is much stronger against the immediate and absolute operation of the endorsement; since the endorser never parted from the possession of the instrument, but it was merely voluntary, and it is perfectly certain the father did not intend that his son John should have the whole proceeds oí the land sold, and also have an equal share with his two brothers in that which remained unsold: and, therefore, he never would have delivered the bond to John, while his will continued unaltered, since that inequality would have been the consequence. No doubt, he intended to alter his will so as to preserve the original equality, in point of value, in the provision made for his sons, and in that event he would have, probably, delivered the bond to John or bestowed it on him in his will. But death followed so speedily, that he did not carry out those purposes; and, under such circumstances, it cannot be inferred. that the father intended to give up the control of the bill, and the property in it to pass immediately. It must therefore be declared, that the bond did not vest in John Nelson, but belonged to the testator at his death, and forms a part of the residue of his estate, and is applicable, as such, to the payment of the debts and general legacies.

If there should be a deficiency of assets, not otherwise disposed of, for the satisfaction of those legacies (amounting in the aggregate to $760,) they must necessarily abate among themselves, pro rata. Devisees or specific legatees are, under no circumstances, liable to contribution towards making up general legacies of any kind.

As all the negroes arc given specifically, the respective donees are entitled to the profits arising from, or liable for the charges incurred for, the several negroes, which constitute their legacies respectively. It is assumed from the pleadings, that the executor justifiably withheld his assent to the legacies, pending the suit by the widow, and that he acted bona fide in hiring and maintaining the slaves. Of course, then, the incidents of profits and losses must go with the principal, that is. the slaves, which are the subjects of the gifts. For example, the expense of maintaining the woman, Leah, and her family is stated to have been $329 75 ; but there are now four children besides the mother, and it is nothing but right, that the increase and the outlay should go together.

Upon the remaining question, as to the construction oí the clause disposing of any increase Leah should have, the Court is unable to form an opinion, as clear and satisfactory as is desirable, inasmuch as the intention is imperfectly and vaguely expressed. But after considering it a good deal we have been led to conclude, that the testator meant therein only such issue as'the woman might thereafter have in his lifetime. In the. first place, it is the natural construction, that a will refers to the death of the testator, as much in reference to the subject of the gift as in reference to the donees. Now, it is well settled, that a legacy to the issue or children of another, when no time is fixed for a division, vests in those in esse at the death of the testator, to the exclusion of thepost-uali; for, as the legacy is immediate, it vests and is divisible at the same time, which is the death of the testator, although the words may be, “to the, children of A. begotteii or tobe begotten.” The English cases on this point are collected in 1 Roper on Legacies 48, ct seq ; and the caso of Petway v. Powell, 2 Dev. & Bat. Eq. 308, and several others in this Court were decided on that principle. So it would seem likewise, that, when the children of a particular female slave are given separately from the mother to one set of donees, and the mother is given to another, and no time is specified within which the children are to be born, and they are not given as the first or second child, but as children generally, it must, upon the same principle follow, that all such as may have been born before the death of the testator, and be then m esse, are included, except those that may be specifically disposed of to some other person ; and that none are included but such as may have come into being in the testator’s lifetime. Besides the analogy between the two cases to which the rule is thus applied, other reasons lead to the same conclusion, ‘It is difficult to suppose that a testator, and especially a father, in providing for a daughter by the absolute and immediate gift of a negro woman, could m’ean, that she should be at all the expense of providing for the mother during her pregnancies and confinements after child-birth, and yet give away two thirds of the offspring — almost the only profit of such slaves_ which she may' have in the course of her whole life. It would destroy the value of the gift, and, in effect, render the negro inalienable. Again, the issue is to vest in three daughters, if at all, when and as it comes into existence ; and it is most unnatural, that the testator should have intended, on the one hand, that the infants should be immediately taken from the mother, and not reasonable, on the other hand, that the owner of the mother should be obliged to keep the children for the other owners, until it should be fit to separate them from the mother. No doubt, a testator may give the mother to one and her first or second child or, even all her children, as they may be born during ber life, to some one else. But to effect that, there ought to be words plainly denoting the meaning-to be, that the child or children should pass, whether bora after as well as before the vesting in possession of the mother. That cannot, be gathered from a gift simply of the children, when the mother is absolutely and immediately disposed of in the will; for that term may be satisfied by the children born at the making of the will or before the death of the testator, and the gift of the mother includes the children born after the gift takes effect, unless the contrary be plainly provided for. It is true, that in this case the terms are prospective, so as to embrace only “the increase” of Leah, “if there should be any;” ytt the reason is the same for restricting the sense to such future children as should be born in the lifetime of the tes. tator, as it would be for not including the children born after his death, if the terms children, or issue generally had been used. On these grounds the Court holds, that all the children of Leah, which have been born since the testator died, belong to the daughter Elizabeth.

Per Curiam.

Decree accordingly.  