
    
      W. M. Lawton, executor, vs. Benj. F. Hunt et al.
    
    Devise of plantation “and all the slaves usually used, attached and belonging to the said plantationto the plantation were attached and belonged a number of slaves used in agricultural operations :• — -Held, that the devise did not embrace some carpenters and boat-hands, who had their cabins, families and patches on the plantation, but were generally employed elsewhere.
    "Where the context of the will affords no contrary indication, the terms descriptive of the subject of gift, must be understood in their strict and primary sense, if a subject be found to which the words so interpreted apply; andin such a case the terms of gift cannot be made to embrace.another subject in a secondary or deflected sense.
    Testator purchased slaves from his son-in-law, which were' under mortgage to secure a debt of the son-in-law, for which testator was liable as his surety: Testator afterwards bequeathed the slaves to his daughter, wife of son-in-law, to her sole and separate use, &c: — Held, that, as between the daughter and other legatees of testator, the debt for which testator was liable as surety of son-in-law and for which the slaves were under mortgage, was not chargeable specifically upon the slaves, but generally upon the whole estate of testator.
    In case of dispute between client and oounsel as to the amount of compensation, the Chancellor is not bound, but may order an issue at law; he should not, however, leave to the determination of the law Court the question which party shall be liable for fees that are reasonable.
    
      Before DuNKIN, Cb. at Charleston, June, 1850.
    The former branch of this canse is reported 4 Strob. Eq. 1.
    The canse came on upon exceptions to the master’s report, under the inquiry that was directed. So much of the report of June, 1850, as relates to the questions considered in the Court of Appeals, is as follows:
    “By the appeal decree in this case, filed 1st February, 1850, ‘ the disputed point whether the carpenters, Ben, Hector, Maurice, Paul, Little Ben, and John, and the sloop hands and boatman, Nat, Phil,, Jim, Joe, Steward, and Jack, are part of the negroes devised to Mrs. Colburn, or of the residuary estate, is referred back to the master to take further testimony. As to the extent and quantity of land devised to Mrs. Colburn, under the devise of Tibwin, the same is also referred back to the master for further information; and it is ordered, that a survey and plat of all the lands claimed as belonging to Tibwin, be made for the information of the Court.5 Under this order, I have been attended at several references by the solicitors of Mrs. Hunt and family, and of Mrs. Colburn and child, but no further testimony has been taken, except the examination of Mr. Moisson, which is herewith filed.
    “ As respects the first point sent down to me, whether the carpenters, sloop hands and boatmen, are part of the devised to Mrs. Colburn, or are residue, I have already reported, and a more careful and minute examination of the testimony has not tended to change my first judgment. To support the position that these negroes are residue, that part of the testimony is chiefly relied on which proves that Mr. Mathewes moved his force of carpenters from place to place, and from country to town, to suit the exigencies of his different plantations and his town property, and that the sloop hands and boatmen were also indifferently employed in the service of all the plantations: it is therefore contended, that they can in no wise be brought within the words of the will, ‘ usually used, attached and belonging to the said house and plantations.5 I cannot see the force of the argument, and *in construing this clause of the will, I think the words of qualification are to be referred to those uncertain and not well defined matters of plantation furniture, which the testator speaks of as 1 every other thing.5 I do not think that the words of qualificatioñ can be made to go further. I attach great importance to the domiciliary arrangements of these negroes, — that they had families at Tib-win — that their garden patches were there — and in the case of the boatmen, that by reason of their frequent absence, Mr. Mathewes had their patches cultivated and kept in order for them. I think it an important point, also, that they were on the allowance list at Tibwin, and I find accordingly, that Ben, Hector, Maurice, Paul, Little Ben, John, Nat, Jim, Phil, Joe, Stewart, and Jack, are not residue, but that they pass under the devise to Mrs. Col-burn.
    
      “ The appeal decree says: ‘ That tbe plantation and negroes called Thompson’s, are, to be considered part of Mrs. Colburn’s portion, under tbe will, and bable to contribution for tbe debts equally with tbe r^st, and that tbe tooney owing for tbe said property is to be considered tbe proper debt of tbe testator, so far as tbe creditors are concerned. But it is referred to tbe master to ascertain and report whether,.as between Mrs. Hunt and Mrs. Colburn, said debt is chargeable specifically upon said land and negroes or upon testator’s whole estate.’
    “ In this matter I have also bad tbe solicitors of tbe parties before me at several references, and tbe deed of August 21, 1847, was submitted. It is insisted, on behalf of Mrs. Hunt and children, that by virtue of this deed, Mr. Colburn received from Mr. Matbewes tbe proceeds of notes to tbe amount of $7,795 for tbe purpose of paying up in full tbe bonds known as Broughton’s, Huger, Pringle and Ball’s, but that be failed so to apply tbe funds; that Colburn being in this way indebted to Matbewes, in tbe above amount of $7,795, as tbe deed recites, conveyed to him, Matbewes, tbe negroes Joe, Polly, Liddy, Nanny, Caroline, Amy,' Hie, Chaplin, Csesar, Bella, Paul, Eanny, August, July, Abraham, Sarah, Liddy, Maria, Thompson, Henrietta, and Zacharias, as bis, B. P. Colburn’s property, when, in fact, they were not, inasmuch as Joe, Polly, Liddy, Nanny, Caroline, Amy, Die, and Chaplin, were under mortgage to E. C. Huger, administratrix of John H. Huger, — Caesar, Belía, Paul, Eanny, August, July, Abraham, Sarah, Liddy, Maria, Wanetta, (who, Mr. Colburn admits, is tbe same as Henrietta, mentioned in tbe deed,) and Thompson, (born after tbe date of tbe mortgage,) under mortgage to S. M. Pringle, and Zacharias, under mortgage to tbe executor of Isaac Ball. Now, therefore, as all tbe negroes conveyed by tbe deed of 21st August, 1847, are yet unpaid for, and payment is now sought from tbe estate of Matbewes, tbe point raised on behalf of Mrs. Hunt and children is, that tbe mortgaged property should be first exhausted in relief pro tanto of Matbewes. It is true that these twenty-three negroes, (those mentioned in tbe deed,) have never been taken into tbe estate — tbat tbe executor declined to take possession of them because of tbe post-nuptial marriage settlement, and tbat they have been, and still' are, in tbe possession of Col-burn and wife. In the deed, (of August, 184,7,) i't’is set forth, tbat Mathewes is to he tbe purchaser of the Thompson land and negroes, and to hold them in trust, &c., under tbe trusts and provisions of the ante-nuptial settlement, and it is contended tbat tbe item in Mathewes’s will in tbe matter of tbe Thompson lands and negroes, does not purport to dispose of .them as apart of bis estate, that be bad no right to do so — the devise is an anterior clause, and this part of the will is only a declaration of certain conditions precedent in relation to said devise. That the answer of Colburn and wife denies there being any question of election — ■ that the decree of Chancellor DukkÍN overrules tbe answer, and in bis decree on circuit, determines tbat it is a case of election, tbat Colburn and wife have not elected. In this behalf, I find tbat both tbe circuit and appeal decrees determine tbat Mr. Ma-thewes did treat the Thompson land and negroes as bis property. Tbe words of Chancellor DüNKIN, in speaking of this matter on circuit, are: 1 Clearly, this is the language of a man expressing bis intention to dispose of property as his own, because be bad purchased and paid for it, although be admitted tbe equitable interest to be in others. It is tbe assertion of a proprietor’s will, and acquiescence is secured by a strong sanction.’ I find further, tbat it is manifestly to tbe interest of Mrs. Colburn and her child, tbat they elect to take under the will — tbat Mrs. Colburn does so elect, and that Mr. J. S. Colburn, tbe trustee under the original deed of marriage settlement, concurs with me in tbe opinion, tbat it is to the interest of tbe infant tbat she also take under tbe will, as to tbe mortgage debts of tbe Thompson negroes.
    “ I have but little doubt tbat when Mr. Mathewes’s debt shall have been fully paid, Colburn will be found a' debtor to the estate; but I cannot see how his individual debt can be charged against bis wife’s separate estate. In bow far the estate of Mathewes paying these debts will be subrogated to tbe rights under, and the pro-teetion of tbe mortgages, is a question which depends very much upon whether Mr. Mathewes has, or has not, by his own act, made the debt exclusively chargeable on his estate, and that being a naked question of law, is more properly with the Court.
    “ It only remains now to consider the objection to Yeadon & Macbeth’s bill for professional services, the exceptions put in to Mr. Bhett’s accounts, and the question of costs. The objections urged against the bill of Yeadon & Macbeth are so numerous that it will be necessary to consider them seriatim. Before taking up the accounts of Yeadon' & Macketh, it may be well, however, to notice, that generally in the matter of the executor’s account, the devisees, S. B. Hunt and children, objected to all items not within four years of the testator’s death, as being by law inadmissable. They object also to all charges not established by law, and claim that they must be sustained before a jury. They object to all fees for the litigation by Mr. Lawton, as beyond his competency, and not designed for the benefit of the estate. But, as the order of the Chancellor, made this day, directs me to file my report by Monday, in the matter of the two important questions sent down to me by the Appeal Court, I must suspend further consideration of these accounts to another report.”
    DüNKIN, Ch.' At an early period of these proceedings, an order had been made requiring the creditors of the estate to establish their demands before the master. On 31st January, 1850, the report of Mr. Laurens 'Was filed, setting forth a statement of the debts and legacies as established. . To this report exceptions were filed on the same day by the solicitor in behalf of Mrs. Hunt.
    The decree of the Court of Appeals, filed 1st February, 1850, adverts to this report as having been referred to in argument, but which was not produced. In the decretal order, it is declared, “ that the creditors who have proved their claims before Mr. Lau-rens, and against whose claims no exceptions are filed, have a right to.immediate payment by sale,” &c.
    
      Further inquiry was directed as to the carpenters and boat hands, and also as to the extent of Tibwin, and whether the Thompson debt was, as between Mrs. Hunt and Mrs. Colburn, to be charged specially on those lands and negroes or upon testator’s whole estate. On these matters the master has now submitted his report, to which exceptions have been filed, and these exceptions it is proposed first to consider. No part of the case has been so embarrassing to me as the inquiry whether the carpenters and sloop hands pass under the devise of Tibwin and its appurtenances. The general scheme of the testator seems to have been, after providing for the payment of his debts and legacies, to dispose of his estate equally between his two daughters and their families.
    To Mrs. Hunt he gave the house in Washington street, Milton Ferry and three plantations, together with the appurtenances of the plantations and ferry. To Mrs. Colburn are given the house in Charlotte street, with the slaves, furniture, &c., used in the said house, and three plantations, with the appurtenances thereof: and by .the final disposing clause of his will, he directs the rest and residue o'f his estate to be equally divided between Mrs. Hunt and Mrs. Colburn, subject to the trusts and limitations therein before declared, of the specific property devised and bequeathed to them respectively. The inquiry is, whether the carpenters and sloop hands pass under the terms of the specific bequest to Mrs. Col-burn, or constitute a part of the residue, and are therefore divisible between the daughters in equal proportions. The testator owned a plantation on Santee rivér, called Pleasant Meadows, four inland plantations, not far from the 32 mile house, in St. James Santee, called Tibwin, Mildam, Springfield and Thomp-sons, and a farm five miles from the ferry, called Snee farm. These, with Milton ferry and the town houses, were the principal objects of the devises. Tibwin, as the Court understands, was the original country residence of the testator, and so continued till his death. To Mrs. Colburn he devises and bequeaths the Charlotte street house, and his plantations, Mildam and Tibwin, with a tract of land called Flatfield, “ and all the slaves, cattle* bogs, borses, mules, sbeep and poultry, and the tools, utensils', flats, boats, furniture, carts, wagons, and every other thing usually tosed, attached' and belonging to the said house and plantations.” The devise to Mrs. Hunt is in the same terms. On the part of Mrs. Colburn, it is insisted that the carpenters and sloop hands fall within the foregoing description. There are six carpenters, to wit: Hector, Ben, Paul, Maurice, Little Ben and John ; and six sloop hands, to wit: Nat, Cim, Phil, Joe, Steward and Jack. Several witnesses were examined, and there is no material discrepancy in their testimony. Tibwin was the original settlement, and the carpenters were originally of the Tibwin gang. But they worked at their trade, and they were employed by the testator wherever such work was to be done. In the winter they were employed at his several plantations .in the country.
    In the spring they came to Snee farm or worked at Milton ferry, and in the summer they were hired out in town, or otherwise employed by the testator. It is impossible to say that they were “ slaves usually used ” at Tibwin, or especially necessary for that plantation. As to employment, they were attached to no plantation, but, as expressed by one of the witnesses, they were a gang of mechanics, detached from the workers of the plantation. And so of the sloop hands. The sloop itself is admitted to have been part of the residue, and has been so treated. The,sloop and the han.ds attached to her, were employed during the testator’s life time in bringing his crop to market, and perhaps more usually in bringing wood to town for Milton ferry. Although, théfn, neither the carpenters nor the sloop hands were usually used at Tibwin plantation, do they “belong” to the Tibwin gang? The master has so concluded, and from several considerations which are' fully stated in his report, without being entirely satis--fled with his conclusions, I am not-prepared to sustain the exception. An additional consideration certain!y has weight with me. These negroes constituted a very valuable portion of the testator’s estate, and could scarcely have escaped his attention. If they were not considered by him among the slaves belonging to the Tibwin gang, be has made no specific disposition of them. When .«=?he was so thoughtful as to provide for the comfort of Capt. Nat and old Patty at Tibwin, and of old Anne, the poultry woman and nurse, at Snee fann, it is difficult to suppose that he should have forgotten the carpenters or boat hands, or having thought of them, should have left their disposition to doubtful interpretation. It is said, however, that to give these slaves to Mrs. Colburn, exclusively, destroys the equality. The master reports otherwise. But the intention to make an equal division, (although it has been - assumed by the court as likely,) is not deducible from the instrument itself. It is scarcely warrantable to resort to evidence dehors the will, for the purpose of showing an intention to create equality, and then, by evidence of the same character, to show that the supposed intention would be defeated by the construction adopted. This exception is overruled.
    And so in relation to the extent of land devised to Mrs. Col-burn, under the designation of Tibwin, and the Thompson debts, so called, the exceptions are overruled. The exceptions to the master’s report on the accounts of the executor are overruled, except in relation to the matters now about to be considered.
    Among the debts of the testator, which the master, by his report of 31st January, 1850, recommended to be paid, was an amount of $2,620.87, due to various legal gentlemen for professional services rendered to the testatór in his life time. Of these, one is a debt to Messrs. Yeadon & Macbeth, amounting to $580, and another to J. S. Bhett, Esq., of $609.12. To this report, the defendant, Mrs. Hunt, through her solicitor, excepted as to the demand of Mr. Rhett, but not as to that of Messrs. Yeadon & Macbeth, or those of the other gentlemen. It is hardly necessary to say that the subsequent decree precludes all inquiry in relation to many parts of the report to which no exceptions were taken. The testator died in July, 1848. Towards the close of that year, the bill of the executor ivas filed, and in May, 1849, an order was entered to restrain the creditors from prosecuting their demands at law. A bill was filed during that year by some-of the devisees, against the executor. This latter bill was dismissed on the 23d April, 1849.- On the 27th March, 1850, the master paid to Yeadon & Macbeth, for their costs, on the bill filed by the executor, the sum of $.311 25, and $35 costs on what is called the cross bill. In auditing the executor’s accounts, the master allows him credit for the sum of $1,330 paid to Messrs. Yeadon & Macbeth for professional services and advice given and rendered to the executor, between August, 1848, and February, 1850. To the bill of costs of Messrs. Yeadon & Macbeth, $346 25 ; to the credit, $1,330, thus given to the executor; and to the account of Mr. Rhett, the solicitor of Mrs. Hunt objected, as is set forth in the latter part of the master’s report of the 28th June, 1850. On the subject of the bill of costs, in the circuit decree of April, 1849, no order was made in relation to the payment of costs. No subsequent order was brought to the notice of the Court. Certainly, the master had no authority to apply any part of 'the funds in his hands to that effect, without a special order. It is suggested in one of the exceptions, that part of the charge allowed was for maintaining the interests of the executor against those of the devisees. • The master has not reported on the objection as to costs, and it must be referred back to him to report on that subject.
    In reference to the credit of $1,330, the defendants, Mrs. Hunt and family, object, and insist on their right to an investigation of the claim before a jury. And they insist on the same course in relation to the claim of Mr. Rhett. In reference to the claim of Mr. Rhett, my opinion has always been, (and I have acted upon that opinion,) that, whenever a -controversy arises between a solicitor of the Court and a suitor,, in reference to the value of his services, beyond the amount prescribed in the fee bill, the matter should be referred to a jury. The inexpediency of any other course seems to me too obvious, to require comment. Although that is not precisely the inquiry, in reference to the credit allowed to the executor, the same principle is, to a great extent, involved.
    It is ordered, that an issue be made up in the nature of an action of assumpsit, in which. J. S. Rhett, Esq., shall be the plaintiff, and executor of Wm. Mathewes, deceased, defendant, (the defence to be conducted by Mrs. Hunt and family,) in which the Inquiry shall be, as to the amount due to the said J. S. Rhett, Esq., on the account filed with the master. And that an issue be also made up, in which the executor of Wm. Mathewes, deceased, shall be plaintiff, and Mrs. Hunt and family defendants, the objects of which issue shall be, to ascertain the amount which was due on account of the estate of the testator to Messrs. Yeadon & Macbeth, on their demand of thirteen hundred and thirty dollars, which is allowed as a credit by the master in passing the executor’s account, the nature of the issue being as for money laid out, expended and paid for the use of the estate, that the said issues be tried in the Court of Common Pleas for Charleston district, and that the presiding Judge be respectfully requested to certify the verdict to this Court.
    On all other points not specially reserved, the report of-the master is confirmed and made t(ie judgment of the Court: and he having reported that it is for the advantage of the infant, Mary Anna Mathewes Colburn, to take the provisions made by the will in her behalf, it is ordered that the said master make the election accordingly.
    Mrs. Hunt and the executor appealed.
    
      JB. F. Sunt, for Mrs. Hunt.
    
      Yeadon, Rhett, contra.
   The opinion of the Court was delivered by

WáRDLaw, Ch.

One of the questions presented by this appeal is, whether the carpenters and boat hands of the testator pass under the following devise: “ I give to my daughter, Ann Ashby Colburn, for and during the term of her natural life, without impeachment of waste, and without being subject or liable in any manner whatsoever, either as to the body or income of said estate, to the debts, contracts, liabilities, control or interference of her present or any future husband, my house and lot in Charlotte-street, where I now reside, and my bouse servants and furniture used in said bouse; also my plantations, Mildam and Tibwin, and a tract of land called Elatfield, and all tbe slaves, cattle, bogs, borses, mules, sheep and poultry, and tbe tools, utensils, flats, boats, furniture, carts, wagons, and every other thing usually used, attached and belonging to the said house and plantations; and, after her death, then to her daughter, Mary Anna Mathewes Colburn, her heirs, executors, administrators and assigns forever; but should the said Mary Anna Mathewes Colburn die before she attains the age of twenty-one or day of marriage, then I give the said property, so given to her, to the children of my daughter Susan, to be equally divided amongst them.”

This clause immediately succeeds another, by which the testator gives to his daughter, Susan B. Hunt, for life, in the same terms-as to impeachment for waste and control of any husband, his lot of land, with the buildings thereon, in Washington-street, Ma-zyckborough ; his wharf lot in Mazyckborough; his plantation, called Pleasant Meadow, including the high and pine land; his plantation, Springfield; his plantation called Snee Farm; his Ferry place and Ferry; also his tract of land on Wambau creek, “ and all the slaves, cattle, hogs, horses, mules, sheep and poultry, and the tools, utensils, flats, boats, carts, wagons, furniture, and every other thing usually used and attached to and belonging to the said plantations and ferry and after her death, then to her children living at her death, the issue of a deceased child or children to represent and take his, her or their parent’s share ; and should any of her children die without issue living at his or her death, then to the survivor or survivors of them, share and share alike.” The will also contains a pecuniary legacy of $12,000 to the children of Mary Boyd, a deceased daughter of testator; a direction that his estate be kept together until, from the crops and other income, the pecuniary legacy above mentioned, and the debts of testator should be fully paid and satisfied; and a devise of the rest and residue of his estate, in equal shares to his daughters, Mrs. Hunt and Mrs. Colburn, “subject, however, to the trusts and limitations herein declared of the property herein devised and bequeathed to them.” Another clause of the will has some bearing as to the question concerning the carpenters, and boat hands, certainly so far as Nat, one of the boat hands, is involved: “ It is my will that my slave, old Nat, (commonly called Capt. Nat,) and old Patty, the dairy woman, at Tibwin plantation, and old Anne, the poultry woman and nurse at Snee Earm, be allowed to remain and reside on the plantations where they now respectively are and reside; and I request my daughters, in consideration of the faithful services of the said slaves to me, that they will treat them with all the kindness consistent with their state and condition, and pay to each of them the sum of ten dollars annually during their several lives.” Of the 370 slaves owned by the testator at the time of his death, none is named in the will except the three mentioned in the last clause, who are severally denominated old, and recommended to the special kindness of the two principal legatees. Of the whole number of slaves, according to the circuit decree, Mrs. Oolburn would take 204 and Mrs. Hunt 166. It is likely that the real estate devised to Mrs. Hunt is of greater value than that devised to Mrs. Oolburn. There is, however, no distinct expression in the will of the purpose of the testator to make equal donations to these two legatees for life, except as to the residuary estate. The remainders after their life estates severally are quite different.

It is manifest from the testimony, that the six carpenters were not usually, or for the greater portion of their time, employed or ■‘ used ’ upon any of the plantations devised to Mrs. Oolburn, nor ‘attached’ nor ‘belonging’ to any of these plantations, except that some of them had their cabins and patches at Tibwin, and some at Mildam. They were as a corps separated from the laborers of 'the plantation and never engaged in agricultural operations, except for a short time upon some sudden emergency. In the winter, they worked at their trade at the various places of the testator, as the exigencies of these places required their peculiar service; and in the summer, they were usually let to hire in the city of Charleston. The testator mostly resided at Tibwin in the winter, and at Charleston in the summer, Tibwin was the original hive from which the-other plantations were chiefly settled. An allowance ’ list, and a ‘ working ’ list, were kept by the overseer at Tibwin; and the carpenters were on the former list, but not on the latter; which, however, also omitted the names of such of the negroes as, from being superannuated or immature, were unfit for labor. Put it appears that the carpenters drew their rations indifferently from the plantations of the testator, wherever they happened to be employed.

The facts concerning the boat hands are of the same general character. They, too, were detached from the operations of Tib-win. Their ordinary employment was on board the sloop of the testator, in carrying to market the crops from his several plantations, of which Pleasant Meadow, devised to Mrs. Hunt, was most productive; and in carrying wood to the Eerry, devised to Mrs. Plunt, which was navigated by steam.

It is manifest, that the words “ usually used, attached and belonging to the said plantations,” or some of them, must limit and qualify the bequest of slaves to Mrs. Colburn, as otherwise the description of the subject, “ all the slaves,” evidently referring to something to'be added, would either carry all the slaves of the testator to this legatee, which is inconsistent with the whole scheme of the will, or would be defective and unmeaning. Whether the words “usually used” form part of the description of the slaves bequeathed, or. are to be confined to the tools and other inanimate things bequeathed, is too doubtful for the matter to have much effect either way in the present discussion; and it is too unimportant to be closely considered.’ The remaining words, “attached and belonging to the plantations,” are properly conceded to be descriptive of the slaves bequeathed. In a strict sense, slaves attached ’ to a plantation are like some of the ancient villeins of England and some of the modern serfs of Russia, adscripti glebx, inseparably connected with the soil: and by the most liberal construction that can be tolerated, slaves ‘ attached to a plantation ’ must be connected with the agricultural operations of the place, either as actual laborers, or as those who have been laborers, or are expected to be laborers. The superannuated and the immature, closely connected with the actual operatives, are in the same predicament as laborers. There is scarcely a perceptible shade of difference in meaning between slaves attached to a plantation, and slaves belonging to a plantation.

It is obvious from the whole tenor of this will, that the testator used the term plantation in a sense somewhat strict, as a place where agricultural operations are conducted. In the devise to Mrs. Hunt, he speaks of Pleasant Meadow, Springfield, and Snee Earm, each as a plantation, and eontra-distinguishes them from his Eerry place and his tract of land on Wambau creek; and in the devise to Mrs. Colburn, he speaks of Mildam and Tibwin as plantations, and of Elatfield as a tract of land. To the latter, he also devises a house and lot in Charlotte-street and ‘ the house servants and furniture used in said house.’ To Mrs. Hunt he gives the slaves appurtenant ‘to the said plantations and ferry,’ and to Mrs. Colburn, he gives the slaves appurtenant ‘ to the said house and plantations.’ Under this bequest to the latter, 165 slaves, answering all the terms of description, pass without dispute, and it is claimed that there pass 12 more, the carpenters and boat hands, who belong to the plantations in some loose and indeterminate sense only.'

Where the terms of a gift, describing the subject, refer to extrinsic facts, we necessarily resort to parol evidence to ascertain what is comprehended within the terms of description. In the present case, we must learn from the mouth of witnesses what slaves are attached and belong to the plantations. But where the context of the instrument of gift affords no contrary indication, we must always understand the words of the donor, descriptive of the subject of gift, in their strict and primary sense, if a subject be found to which the words so interpreted apply; and evidence of extrinsic facts, such as the intention of the donor as an independent fact, is inadmissible to apply the words to any other subject. If the terms of description, strictly interpreted, apply to one subject, they cannot be made to apply to another subject in a secondary or deflected import. Wigram on Wills, 17. Thus in Oxenden vs. Chichester, 3 Taunt. 147, 4 Dow, 65, under a devise of testator’s 1 estate of Ashton,’ where an estate situated at Ashton was found by the evidence, other lands of testator not situated at Ashton were not allowed to pass, although testator called the whole by the name of his ‘Ashton estate,’ and his steward kept the accounts relating to the same under that name, and conclusive evidence was tendered of the intention of testator to devise the whole estate. The present will affords an illustration. It has been already decided in this case, .that, under the bequest of ‘ flats and boats,’ the sloop of testator is not given to Mrs. Colburn. It may be remarked, that the consistency of the construction of this will could be hardly vindicated, by which the sloop did not pass, and the hands, the instruments of navigating it, did pass; both, if one, being appurtenant to the plantation of Tibwin.

Against the conclusion to which this reasoning tends, the master relies upon the fact, that the carpenters and boatmen had their patches and cabins at Tibwin. But this fact has little weight, when we remember that Tibwin was the original place of testator, and when we consider the intermixture of the families of slaves of neighboring plantations. If a negro who has a wife, and a cabin, and a patch on a plantation, is to be regarded as belonging to it, many slaves would be within the description who are owned by others than the proprietor of the plantation.

The Chancellor, who adopted, with much hesitation, the eonqlusion of the master, was impressed by the consideration that the testator thoughtfully provided for the comfort of three old negroes, and yet left the disposition of his valuable tradesmen to doubtful interpretation of his will. The absence of specific disposition concerning these particular negroes has little influence, for it is the scheme of the will to dispose of testator’s slaves by general terms of description, without enumeration; and there is no ground for preference of the special bequests to Mrs. Hunt and Mrs. Colburn, over the residuary clause, in which the testator, by careful provision as to trusts and limitations, manifests his purpose of leaving a valuable residue.

It is argued that the declaration in the will, that old Nat and old Patty £ are and reside ’ at Tibwin plantation, is as true of all the other slaves in controversy as of Nat, and demonstrates that they are ‘ attached and belonging ’ to that plantation. If this declaration be made concerning Nat, which is ambiguous, still mere residence at a plantation does not make a slave appurtenant to it. Besides, the express disposition of Nat by this clause of the will, leads to the conclusion, that the testator had not intended to describe him by the general words of the previous bequest to Mrs. Colburn : and the same application of the general words must be made to all who are in the same category. It seemed to be conceded at the bar that Nat was bequeathed to Mrs. Colburn by the latter clause; and we are content to allow this construction.

The evidence that the slaves in question were included in the inventory of property at Tibwin — a subsequent arrangement for convenience — if admissible, has no influence on the construction of the will; and, I think, was inadmissible.

In our oj)inion, the carpenters and boat hands are bequeathed by the residuary clause of the will.

The next matter of appeal relates to what are called the Thompson negroes ; and involves the question whether the debt for which the estate is liable on account of these negroes, .as between the two principal legatees, constitutes a charge upon the estate generally, or a specific lien upon the negroes themselves.

The slaves denominated the Thompson negroes were, at the time when they were respectively purchased, 19 in number, namely, Zacharias, Caesar, .Bella, Paul, Fanny, August, July, Abraham, Sarah, Liddy, Wanetta or Henrietta, Joe, Polly, Liddy, Nanny, Caroline, Amy, Die and Chaplin.

Of these slaves, B. P. Colburn, husband of Ann Ashby Col-burn, purchased Zacharias from Poyas, executor of Ball, on January 10, 1845, for $610, and, paying a portion of the purchase money in cast, for tbe balance gaye the bond of himself and testator of same date for $406, with interest from date, payable in three equal annual instalments, the last being on January 10, 1848; and on same day gaye a mortgage of the slaye to secure the bond. The interest on this debt was paid by Colburn to June 10,1848.

On February 13, 1845, B. P. Colburn purchased from S. M. Pringle, for $5,380, Csesar, and the nine following in the order of names aboye, and paying a part of the purchase money in cash ; for the balance gaye the bond of himself and testator for $3,900, with interest from date, payable in three equal annual in-stalments, the last being due on February 13,1848; and on same day gaye a mortgage of these slaves, (and of another named Frank,) to secure the bond. Interest has been paid to June 8, 1848.

On February 10, 1846, the testator purchased from E. Gr. Huger, for $2,500, Joe and the seven following in the order of names above, and on same day gave the bond of himself and B. P. Colburn for $1,666.67, with interest from date, payable in two instalments on February 10, 1847, and February 10, 1848; and on the same day gave a mortgage’of the slaves to secure the bond. Interest has been paid to February 10, 1848.

These three mortgages were duly recorded.

An indenture was executed by the testator and B. P. Colburn, August 21,1847, by which Colburn in consideration of his indebtedness to testator in the sum of $7,795 on promissory notes drawn by Colburn and indorsed by testator, conveyed to testator the Thompson land, (which, it seems, by statements at the bar, Oohrarn had purchased for $600 in cash,) and the nineteen negroes above named, with four others, Maria and Thomson, children of Liddy (Pringle,) and a child of Amy and a child of Nanny, to testator, in trust, for the separate use of Ann Colburn for life, not liable to the debts of her existing husband ; and if she should survive, without issue of the marriage, to her in fee; and upon her death, leaving her husband, B. P. Colburn, and issue of their bodies, for the joint and equal use of such husband and issue, without liability for husband’s debts, for the life of B. P. Colburn, and on his death to the issue; and if B. P. Colburn should survive his wife, without issue of the marriage, then the whole to him for life, with power of appointment by will as to one-half, the other half descending to the next of kin of his wife. The notes referred to in the consideration of said deed were drawn and indorsed from October 3 to December 18,1846, and were payable from January 2 to March 18, 184T.

The will of the testator bearing date January 21, 1848, contains the following clause: “ And whereas, in and by a deed bearing date the twenty-first day of August, in the year of our Lord one thousand eight hundred and forty-seven, made by and between myself and B. P. Colburn, the said B. P. Colburn, in consideration of the debt stated in said deed, and my release of the same, conveyed to me a plantation and twenty-three slaves, therein described, for the trusts and purposes set forth in said deed; and whereas the said plantation and negroes were purchased and paid for by mo, now I do direct, as a condition precedent to the bequests and devises, by me herein made to my daughter, Ann A. Colburn, and my granddaughter, Mary A. M. Colburn, that the said plantation and negroes mentioned in said deed, so far as shall lie in the power of the parties interested therein, shall be held, not to the uses, trusts, and limitations declared in the said deed, but to the trusts and purposes declared in this my -will of and concerning the property devised and bequeathed to my said daughter, Ann, and her child; and on failure of the parties interested conqfiying with my will in this particular, I revoke and annul all of the devises and bequests herein made to them; and I devise and bequeath the property above devised and bequeathed to them, to my daughter, Susan B. Hunt, and her children, subject to the same trusts, and for the same estates, as the property herein devised and bequeathed to them is subject to.”

It has been already decided by the Court of Appeals, that, in this clause, the testator did undertake to devise the Thompson land and negroes, so as to subject the parties interested therein to an election to take under the will or the deed, aüd so as to subject this property to rateable liability for the debts and pecuniary legacies of the testator. Mr. and Mrs. Colburn have elected to take under the will, and their infant daughter under the direction of this Court has made the -same election.

The argument for the appellants proceeds on the assumptions; that the testator declared in his will, which must be assumed to be true, that he had purchased and paid for the Thompson land and negroes ; that in this statement a's to payment he referred to his -indorsement of the notes óf B. P. Colburn, which, as to liability upon the maker, he had released by the deed of August 21, 1847; that these notes were drawn and indorsed to raise money for the discharge of the bonds given foi’ the negro'es, and that by subrogation of the representative Of the testator to the liens of the mortgagees; 'or some general equity, th'e n'egrOes should be subjected to liability for the unpaid purchase money contracted to be given for them.

The foregoing statement of facts shows that there is ho basis for this argument. When the testator ddfelared that he had purchased and paid for this property; he manifestly meant that he had been obliged to pay $7,795; the sum of the notes indorsed by him for his son-in-laW; not th&t he had paid the original purchase money of the slaves. There is no evidence whatever that 'these hotes were drawn and indorsed to raise money for the payment of t^p bonds given for the original purchase of these negroes, in one of which testator was the principal, and in the Other two surety; and all the probabilities of the case are on the other side. The notes are ten in number, for th'e sum of $7,795, all payable in the early part of 1847; the bonds are three in number, fdr the aggregate sum of $5,912.67, the last instalments of which were payable in the early part of 1848. There is ho conformity in date, sum or maturity. Th¿ fact that the interest on these bonds was punctually paid, is treated as evidence Of fraudulent concealment from the testator that the bonds were outstanding and unpaid; but we do not perceive bow compliance with legal obligation is evidence of fraud, nor bow tbe testator could have been deceived into tbe belief that his own bonds, in one of which be was principal debtor, were paid before maturity by an insolvent son-in-law. He bad constructive notice of tbe existence of tbe mortgages from their being recorded, in all probability actual notice ; and there is not a tittle of evidence of any misrepresentation to him. Sufficient reasons, which are set forth in the appeal decree, existed for his change by will of the trusts set forth in the deed of August 21,1847, which were doubtless satisfactory to him at the date of the deed, as they were in exact conformity to the marriage settlement between Colburn and his daughter in 1884.

It appears to us that -this branch of the case is governed by the authority of Francis vs. Lehre, 1 Rich. Eq. 271, with which we are satisfied. There Ann Lehre purchased a plantation, and for the payment of the purchase money gave her bond secured by a mortgage on the plantation: she afterwards made a voluntary gift of the plantation in trust for Mrs. Raker, and then died leaving the bond unpaid. It was held, that her estate was bound to pay the bond and release the land from the lien of the mortgage. The Court, referring to Villers vs. Beaumont, 1 Vern. 100, scouts the proposition that one may purchase property, then make a gift of it, and afterwards revoke the gift by compelling the donee to pay the donor’s debt. Substantially the testator was the settlor in the deed of August, 1847, as he paid the consideration and directed the trusts.

We are of opinion that the present appeal is a naked attempt to make a legacy to a wife and daughter liable for the debt of the husband and father, who takes no interest under the will; and we conclude that the general estate of the testator must pay the testator’s debts.

The next subject of appeal is in reference to the executor’s accounts. All the objections to the report of the master in this matter were abandoned at the hearing here, except in relation to the account of Messrs. Yeadon & Macbeth, the counsel of the executor; indeed these matters were adjudged by the former appeal decree. In relation to this account of the counsel, the Chancellor directed an issue at law; and the executor appeals from this order. The counsel fee in this case was paid by the executor after the date at which he was directed by the order of this Court to pay over the funds in his hands to the master. We are not disposed to interfere with the order of a Chancellor in a matter of discretion. To guard against. misapprehension, it is proper to say that we do not recognize, as a rule of procedure, that a Chan-cell or must direct an issue at law in case of dispute between client and counsel as to the amount of compensation. The organization of this Court affords the means of trying and determining such a question satisfactorily. Much less are we inclined to abandon to the other Court the determination of the question as to what party shall be liable for fees that are reasonable. The adequacy of the compensation is distinct from the liability of the party to pay for the seryices. It may be that large compensation is due to counsel for seryices to a trustee; but that the trustee is litigating for his own benefit and should himself sustain the expense. We are content as to the Chancellor’s order in this particular, as a matter of discretion, so far as the quantum meruit is concerned; but we reserve the right of determining who shall pay the reasonable fee.

The appeal brings further into question the extent of land, passing as residue, and ordered, as it is said, to be sold for partition, including, it is said, some land exclusively claimed by Mrs. Hunt. No order for sale of such residue has been produced to us, and we conclude nothing as to the title of the parties. If there be an order for sale, the master should not sell disputed premises, but he should inquire into the facts and report to the Court. This matter is reserved.

It is adjudged and declared, that the carpenters and boat hands, except Nat, are not bequeathed to Mrs. Colburn, but pass under the residuary clause of testator’s will; and that Nat is specifically bequeathed to Mrs. Colburn : and it is ordered and decreed that tbe account be taken by the master accordingly.

It is further ordered and decreed, that the issue at law directed by the Chancellor, as to the account of Yeadon & McBeth, be confined to the reasonableness of the compensation claimed for the services rendered by the counsel.

It.is further ordered and decreed, that in all other respects the circuit decree be affirmed and the appeal be dismissed.

JOHNSTON, UuNKlN and Dah&AN, CO., concurred.

Decree modified.  