
    *Lucy & Others v. Cheminant’s Adm’rs.
    April Term, 1845,
    Richmond.
    Wills — Construction—Emancipation of Slaves — Case at Bar. —S. L. by her will emancipates certain of her slaves, and then says: “All the rest of my slaves I lend to my brother and sister equally during their lives, and the life of the survivor; and on the death of the survivor it is my desire that the said slaves be set free.” Held. The slaves alive at her death, and their descendants born during the life of the brother and sister, and the life of the survivor, and those born after the death of thesur-vivor are emancipated by the will of S. L.
    Susanna Lester by her will dated the 23d of February 1801, and duly admitted to record on the 11th of May following, devised as follows: “It is my will that my slaves Temple, Leah, and Mourning, a negro man called Mulatto Will or Will Brown, may be set free on my death, if such manumission is not prohibited by the laws of my country. All the rest of my slaves I lend to my brother and sister equally, during their lives, or the life of the survivor; and on the death of the survivor, it is my desire that the said slaves be set free, if it can be effected, or is not prohibited by the laws of the country, except as is hereafter excepted.” She then proceeds to give to her brother Richard a slave named Black Will in fee simple, and to allot to her sister Fanny certain slaves by name, as her portion of those embraced in the preceding clause.
    Richard Lester died in 1803. Frances Lester married Cheminant, received into her possession the slaves bequeathed to her for life, and died in 1841; having survived her husband.
    . Among the slaves thus received by Frances under the will of her sister, were two women named Edy and Juno. After the death of Susanna Lester, and in the lifetime of Frances, Edy had one child named Mourning; and Juno had six children, viz: Mary, Charles, *Fed, William, Ned and Sawney; and Mary had one child John; and after the death of Frances Cheminant, she had another named Ned.
    After the death of Frances Cheminant, the descendants of Edy and Juno brought a suit in equity against the administrator of Frances, and others claiming under her, insisting that under the will of Susanna Lester they were entitled to their freedom; and asking for an injunction to prohibit the administrator from selling them until their right to freedom could be tried. The Court granted the injunction, and the parties defendants having answered, contesting the right of the plaintiffs to freedom, the cause came on to be heard in November 1843, when the injunction was dissolved and the bill dismissed. From this decree the plaintiffs applied for and obtained an appeal to this Court.
    Stanard, for the appellants,
    referred to Erskine v. Henry, 9 Heigh 188; Elder v. Elder, 4 Leigh 252, and Anderson v. Anderson, 11 Leigh 616.
    THarrison, for the appellees,
    referred to Maria v. Surbaugh, 2 Rand. 228; Ellis v. Jenney, 2 Rob. R. 597; Henry v. Bradford, 1 Rob. R. 53; Crawford v. Moses, 10 Leigh 277 ; and M’Cutchin v. Marshall, 8 Peters’ R. 220.
    
      
      Wills — Emancipation of Slaves in Futuro — Increase. —“In Elder v. Elder’s Ex’or, 4 Leigh 252: Erskine v. Henry, 9 Leigh 188: Anderson’s Ex’ors v. Anderson, 11 Leigh 616; Lucy v. Cheminant's Adm’rs, 2 Gratt. 36; and Osborne v. Taylor’s Adm’r, supra, 117, the word ‘all,’ and other words of like comprehensive import, used in a will in reference to slaves to whom freedom in futuro was given, were construed to embrace the increase of the females born between the death of the testator and the period when the slaves were to be free.” Wood v. Humphreys, 12 Gratt. 336. To the same effect, see the principal case also cited in Osborne v. Taylor, 12 Gratt. 117, 129, and foot-note ; Taylor v. Cullins. 12 Gratt. 398; Hunter v. Humphreys, 14 Gratt. 298. The principal case was distinguished in Wood v. Humphreys, 13 Gratt. 351.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that by the terms of the will of Susanna Lester, bequeathing all the rest of her slaves to her brother and sister equally during their lives, or the life of the survivor, all her slaves not specifically disposed of, born during the lifetime of the testatrix, or after her death and during the lifetime of her brother and sister, or the survivor, passed as the slaves of the testatrix, or her estate, to the brother and sister equally during their lives, and to the survivor during her lifetime; *and the provision that on the death of the survivor, the said slaves should be set free, refers to and embraces all the slaves of the testatrix so as aforesaid passing by the previous clause to the tenants for life, and to the survivor of them; and consequently that the appellants, whether born before or after the death of the testatrix, were entitled to their freedom upon the death of Frances Cheminant, the sister who survived. The Court is therefore of opinion that said decree is erroneous, and the same is reversed.

And this Court proceeding to render such decree as the Court below ought to have rendered, it is adjudged, ordered and decreed, that the appellants, upon the death of the said Frances Cheminant, were free; and that the injunction awarded in this cause be and the same is hereby reinstated, and made perpetual; and that the appellants recover of the appellees their costs by them about the prosecution of their suit in this behalf expended.  