
    
      W. B. Murray and James Buchanan v. George Walker. Same Complainants v. W. J. White, ex'or.
    
    If a deed of personal property to several, “ to them and their issue, forever,” contain no limitation over, the absolute title to the property will vest in the first takers.
    Issue take as purchasers, under a deed of personal property, where the property Is limited over by a limitation which is not too remote: and the validity of the gift to the issue, in such cases, depends upon, and is to be tested by, the remoteness or sufficiency of the limitation.
    “Where a deed of personal property was to grandchildren, then alive, as also to those which might afterwards be born, with a limitation over-to the survivors, ■of the share of either that might die, “not leaving lawful issue” — the Court held, that the issue of an afterborn grandchild could not take under the deed, the limitation being too remote.
    
      
      Before Johnston, Ch. at Walterborough, February, 1846.
    Johnston, Ch. These are separate bills for the delivery of slaves; and depend upon the following facts.
    On the 26th of December, 1784, one Margaret Jeffreys, whose daughter, Mary, had intermarried with Hans McCullough, by whom she had then borne four children, namely, William, David, Jean and Mary, executed an instrument of writing, purporting to be a deed, attested by two witnesses, whereby, “ in consideration of the love and affection which she bore to her grandchildren, the issue of her said daughter, she gave, granted and confirmed unto her beloved grandchildren, viz : William, David, Jean and Mary McCullough, as also those children she, (her daughter,) may bear to or by the said Hans McCullough, one-half part of a negro woman, Myrtilla, (and also one-half part of the issue and increase of the said negro woman, Myrtilla,) to them and their issue, forever ; but in case either should die not leaving lawful issue, in that case, the deceased’s part to be equally divided between the survivors, share and share alike: on the proviso and condition, that the said negro woman, Myrtilla, and all her issue and increase, be and remain in the custody and possession of the said Margaret Jeffreys, and under her lawful control, during her natural life, for her support.” “And she thereby nominated and appointed Hans McCullough, and her daughter, Mary, his wife, trustees of said deed, to carry into effect every clause and article therein contained, according to the true intent and meaning of the same, in behalf of her above written grandchildren.” This instrument was proved the 13th of May, 1795, and registered in the office of Secretary of State, the 8th of June following.
    On the 5th of May, 1795, the said Margaret Jeffreys, by ■another instrument, purporting to be a deed, executed in the presence of three witnesses, “in consideration of the love and affection which she bore to her grandson, Andrew, son of her daughter, Jean, and Andrew McCullough, Sen. gave, granted and confirmed to the said Andrew McCullough, Sen. in trust, for the use and benefit of her said grandson, Andrew, until he should arrive at twenty-one years, the other half of the said negro woman Myrtilla, and also the other half of her issue and increase, unto her above mentioned grandson, Andrew, and the lawful issue of his body, after (his) decease; or, in case he dies without issue, to his, the said grandson, Andrew’s, father, for their proper benefit and behoof, during the term of their natural lives — at the expiration of which, •to be equally divided between her (Mrs. Jeffreys’s) grandchildren, the lawful issue of her daughter, Mary, wife of Hans McCullough.” To which was added the proviso, that Myrtilla and all her issue should remain in the possession and under the control of the said donor, during her life, for her support, as in the case of the other deed.
    This instrument was proved the 9th, and registered by the Secretary of State, the 11th of May, 1795.
    It is not known when the donor, Mrs. Jeffreys, died. But it is proved that after her death Myrtilla and her issue were divided into two shares, one of which was taken possession of by Andrew McCullough, the elder, for his son Andrew— the other by Hans and wife, for their children. In this latter share was included Binah, a daughter of Myrtilla, who, with her issue, were held by Hans and his wife, until the death of Hans, the date of which is not stated in the testimony.
    After the death of Hans, and before the year 1824, Mary, the surviving trustee, being still alive, a division was made between his four children, named in the deed of 1784, and another child, Margaret, whom she had borne in the mean time; in which division Binah, and four of her children, Hannah, Gabe, Doll and Minda, were allotted to Margaret. Margaret married one Buchanan, and these five slaves, descendants of the stock slave, Myrtilla, went with her into the possession of her husband. On the 3d of May, 1824, Minda, one of the five, was sold by the Sheriff, by virtue of executions against the husband, Buchanan, and purchased by Wm. R. White, the testator of the defendant in the second of these suits, at the sum of $203. It was proved that the purchaser was present at the division under which the five slaves were allotted to Margaret.
    Buchanan, the husband, died, and on the 2d of April, 1827, Edward North, by virtue of an order from the Ordinary, sold and conveyed the four other slaves, Binah, Hannah, Gabe and Doll, to George Walker, the defendant in the first of these suits, at the price of $650.'
    Margaret, the wife of Buchanan, died between 1834 and 1836, and the plaintiffs, who are her sons, and only issue, claim the negroes thus purchased by the defendants, under the deeds of the great grandmother, Mrs. Jeffreys. One oí the plaintiffs was born in 1822, and the other in 1824.
    It is not necessary to inquire into the provisions of the deed of 1795, in favor of Andrew McCullough, Jr. By the first partition the slaves in question were set apart as that portion of the property which was to be controlled by the deed of 1784, given to the children of Hans and Mary.
    By the second partition, they were allotted to Margaret, the 
      post nata granddaughter, and I am of opinion she took an absolute interest, which vested in her husband, and were well disposed of to the defendants. .
    If the words of this deed (of 1784) contained no limitation over, there can be no doubt that the gift to the first takers, (assuming that Margaret is to be included among them,) to them and their issne forever, would have vested them with an absolute title to the property.
    But the property is limited over to the survivors, in case either of them should die, not leaving lawful issue. It was held, in Ferrill vs. Talbird, and other cases, (Riley’s Chancery Cases, 247,) that the issue take as purchasers, when the property is limited over by limitation, which is not too remote ; and that the validity of the gift to the issue, in such cases, depends upon, and is to be tested by, the remoteness or sufficiency of the limitation.
    Tested by this rule, the plaintiffs cannot take as purchasers. The limitation is upon the death of Margaret, a person not in esse at the date of the gift — a period to which the policy of the law will not allow a bounty of this character to be carried. The issue indicated by the instrument are to take, according to the cases I have mentioned, at the time-that the limitation would, but for this intervention, take effect; and as the latter is too remote the other cannot claim.
    It is ordered that the bill be dismissed.
    The complainants appealed from the decree of his Honor, Chancellor Johnston, in the above cases, for the following reasons:
    1. Because his Honor erred, in deciding that the limitations were too remote; and the appellants submit that on the death of Margaret, their mother, they were entitled,- as purchasers, to the slaves in controversy.
    2. Because his Honor’s construction of the deed is contrary to the meaning and intention of the donor.
    8. Because the decree is; in other respects, contrary to law.
    Henderson, for the motion.
    Carn, contra.
    
   Johnston, Ch.

delivered the opinion of the Court.

This Court concurs in the decree of the Chancellor, which is hereby affirmed; and it is ordered that the appeal be dismissed.

Dunkin, Ch. and Caldwell, Ch. concurred.

Harper, Ch. absent at the hearing.

Appeal dismissed.  