
    Woodrum et als. vs. Kirkpatrick, et als.
    
    Construction op Writings. Will. The will of the testator contained the following provisions: “My will and desire is, that all my negroes not otherwise bequeathed, shall lie valued and put into lots and divided amongst all my children; the ones drawing the most valuable lots to pay over to the less valuable the difference in cash, share and share alike.” Again: “ My will and desire is, that all my land be sold by my executors, hereinafter mentioned, to the highest bidder, on twelve months credit, and the proceeds to be equally divided between my wife and children. It is my will and desire that the portions or lots which are or may be assigned to Jane Woodrum and Mary Welsh, my daughters, shall be hold by them for the benefit of the heirs of their bodies, -not subject to be sold, bartered or traded by their husbands.” Held that by the first clause above quoted, Jane Woodrum was vested with an absolute estate in her portion of the slaves, and that by the last clause quoted this estate is to her sole and separate use.
    Husband and Wipe. Joint sale of wife’s property to discharge the husband’s debt. Though the wife join with the husband in the sale of property bequeathed to her to be held by her to her separate use; and “ not to be sold, bartered or traded by her husband,” if the sale be made to one who contracts with the husband, and makes the payment to the husband, it is void as to the wife.
    Same. Same. Slaves. Privy examination. A sale of slaves which are the sole and separate property of the wife, by the husband and wife jointly, without the privy examination of the wife, is void.
    Appeal. Chancery. Original bill and cross bill. An appeal from the decree of the chancery court rendered upon a cross bill, opens the whole case presented both by the original bill and the cross bill, though there be no appeal from the decree dismissing the original bill.
    This was a bill filed in tlie chancery court at Lebanon, upon the following facts: Li the will of Cunningham Smith, who died in 1840, are the following provisions: “Item 5th. My will and desire is,’that all of my negroes not otherwise bequeathed, shall be valued and put into lots, and divided amongst all of my children; the one draw-, ing the most valuable lots, to pay over to the less valuable the difference in cash, share and share alike.” “Item Tth. It is my will that the portions or lots which is or may be assigned to Jane Woodrum and Mary Welch, my daughters, shall be held by them for the benefit of the heirs of their bodies, not subject to be sold, bartered or traded by their husbands.”
    The negroes in dispute went into possession of Stephen and Jane "Woodrum under this will, soon after testator’s death. On the 1st of March, 1847, by their joint bill of sale, they transferred them to Thomas Kirkpatrick for nine hundred and thirty-six dollars then paid them, by extinguishing a debt due from Woodrum to Kirkpatrick. Kirkpatrick, by an instrument of the last' mentioned date, gave them a right to re-purchase said slaves at any time before the 1st of May following. They failed to pay at the time, but were left in possession of the slaves at a small hire, till May, 1850, when Kirkpatrick, wishing to take said slaves, said Stephen and wife filed their bill to prevent him, alleging that the transaction of 1840 was a mortgage, and praying to be allowed to redeem, stating that the purchase money was paid, and praying further to have the slaves restored and settled as under the will of Cunningham Smith.
    Pendingthis bill on the 2d of July, 1850, Woodrum, the son, and Lannum and wife, daughter and son-in-law of Stephen and Jane, file their bill in the nature of a cross bill, to assert their claim to said slaves “ as heirs of the body” of Jane Woodrum, and claiming that she had no estate in said slaves for her own use, but was only a trustee for the benefit of these last complainants. The chancellor, Ridley, at the July Term, 1852, dismissed the original bill, from which there was no appeal. Upon the cross bill, and in construction of the will, the chancellor decreed that Jane Woodrum was entitled to a separate estate for life which had passed by the sale to Kirkpatrick, and that Woodrum, the son, and Lannum find wife, had a vested remainder in the slaves, to secure which Kirkpatrick was ordered to give bond, &c. Erom this decree both parties appealed.
    Beady and MabtiN, for tbe children of Mrs. 'Woodrum,
    argued: Mrs. Woodrum takes no interest except as trustee. The bequest is to her children; and she is a trustee to hold the property for them. The term “heirs of hex-body,” as used here, means nothing more or less than her children. The word heirs is always construed to mean children, where it is necessary to carry out the intention of the testator, if it does not conflict with any positive rule of law. It is believed to be obvious that it was the intention of the testator to give the property to the children, and at most but a use to the mother.' It is believed this case falls within the principle of Benton vs. Pope, et al., 5 ITumplx. 392; Fite vs. Bead, 8 Humph. 328.
    Cabuthees and E. IT. Ewotg, for Kirkpatrick,
    ai-gued: The rule in Shelley’s case must govern this. With regard to the peculiar terms of the will, to-wit: “the property to be held by the legatee for the benefit of the heirs of her body,” and no express gift of any estate, it will make no difference in the construction and the application of the rixle. If the interest or profits only are given to the first taker, and the principal to the heirs, the rale will aPPly- 1 Mez. Ji\, 135, 154; 9 Yei\ 241.
    Tiie estate given to Mrs. Woodrum is a life estate. The exclusion of her husband from the power to sell, &c., does not alter the case. See Pott vs. Ovmvmgton, 1 Bing’. 453. Sarah Baker gave her daughter, Sarah Dott, sundry negroes disünet from her husband, during life, and at her death to the “ heirs of her body.” The rule, applied.
    
      Personal estate cannot be entailed, and where it is given to A. and bis or ber heirs male of the body, or heirs, the whole vests in A. Seale vs. Seale, 1 P. "W., 290; Webb vs. Webb, Ibicl, 132.
    It is a ride of property and not of intention or construction. It must prevail, though it conflicts with intention; 9 Ter. 236.
   IIoustoN, Special X,

delivered the opinion of the court.

Cunningham Smith died in 1840, after having made and published his last will and testament, in which are the following provisions: Item 5th, “ My will and desire is, that all of my negroes, not otherwise bequeathed, shall be valued and put into lots, and divided amongst all of my children, the one drawing- the most valuable lots, to pay over to the less valuable, the diiference in cash, sháre and share alike.” Item 7th, “My will and desire is, that all of my land be sold by my executors hereinafter mentioned, to the highest bidder, on twelve months credit, and the proceeds to be equally divided between my wife and my children. It is my will and desire, that the portions or lots which are or may be assigned to Jane "Woodrum and Mary "Welch, my daughters, shall be held by them for the benefit of the heirs of their bodies, not subject to be sold, bartered or traded by their husbands.” Shortly after the death of the testator, the negroes in controversy went into the possession of Jane "Woodrum and her husband, Stephen "Woodrum, and on the 1st of March, 1847, Stephen "Woodrum and wife; by bill of sale, conveyed the negroes to the defendant, Thos. Kirkpatrick, for the consideration, as the bill of sale states, of nine hundred and thirty-six dollars, and by an instrument of tbe same date, Kirkpatrick gaye them tbe right to re-purchase the slaves, upon the payment of the nine hundred and thirty-six dollars on or before the 1st of May, 1847. The bill of sale of 'Wood-rum and wife was proved by the subscribing witnesses, there being no privy examination of Jane Woodrum. The negroes remained in the -possession of Woodnim an'd wife, and they not having repaid the nine hundred and thirty-six dollars to Kirkpatrick on the 1st of May, 1847, he was proceeding to take possession of the slaves in May, 1850. Whereupon they filed a bill to prevent him, and charging that the bill of sale was only intended as a mortgage; that the purchase money had been repaid, and praying to have the slaves secured and settled upon Jane Woodrum, as provided in the will of her father.

On the 2nd of July, 1850, whilst the bill was still pending, William A. Woodrum, a son of Stephen and Jane Woodrum, and Geo. S.‘Lannum and wife, Mary E., their son-in-law and daughter, filed a cross-bill in the cause, asserting their claim to the slaves, under the will of Cunningham Smith, as heirs of the body of Jane Woodrum, and alleging, among other things, that .she has no title to them in her own right, but only as a trustee for their benefit.

The chancellor dismissed the original bill upon the ground, that the sale of the negroes by Woodrum and wife to Kirkpatrick, was not intended as a mortgage, but was an absolute sale with liberty to repurchase. Upon the cross-bill, the chancellor decreed, that Jane Wood-rum had- a separate estate for life in the slaves, under her father’s will, which she could convey, and had conveyed by the bill of sale to Kirkpatrick, and that the complainants in the cross-bill had a vested remainder in tbe slaves, and Elrkpatrick was required by tire decree to execute a bond conditioned not to remove tliem from the State, and to have them forthcoming, to be delivered to complainants at the death of Jane "Woodrum. And from this decree, upon the cross-bill, both parties appealed, there being no appeal from the decree dismissing the original bill. The whole case, both as to the bill and cross-bill, is before ns for examination, and the question for our consideration is, what is the true construction of the 5th and Yth clauses of the will of Cunningham Smith? "We cannot assent to the argument that the testator intended to convey the property to his daughters merely as trustees, to hold for the benefit of their children, giving them no estate whatever in their own right. It would require very strong language, indicating such intention, to bring our minds-to such a conclusion.

"We are well satisfied that by the 5th clause, taken alone, an absolute estate in their own right is given to the daughters of the testator, and this conclusion is strengthened by referring to the former part of the Yth clause as recited in the statement of the facts of the case.

The negroes are to be valued and put into lots and divided amongst all the children; those drawing the most valuable lots, are to pay to the less valuable, the difference in cash. The land is also to be sold and the proceeds of the sale are to be equally divided between the testator’s “wife cmd his children.” Without the latter part of the Yth clause of the will, there could be no doubt that the daughters would take an estate in fee in their shares. But how is the case affected by this part of the ' Yth clause? "What did the testator mean by this provision?

He provides that “ the portions or lots which is or may be assigned to Jane "Woodrum and Mary Welch, my daughters, shall be held by them for the benefit of the heirs of their bodies, not subject to .be sold, bartered, or traded by their husbands.” We cannot give any more force to the words, “to be held by them for the benefit of the heirs of their bodies,” than we would in the words “to be held by them and the heirs of their bodies,” or, “ to go to the heirs of their bodies.” In either event, whatever might be the intention of the testator, the case would fall within the rule in the case of Polk vs. Faris, and the first taker would be vested with the absolute interest. And so we think in this case, that under the 5th and 7th clauses of the will, Jane Wood-rum is vested with the absolute estate in the slaves in controversy. But by the 7th clause, we think the testator also meant to vest his daughter, Jane Woodrum, with the absolute estate in the slaves for her sole and separate use, and this intention not being in contravention of any rule of law, and the words used, being in our opinion, sufficient to create such an estate, we so construe the will, and hold that Jane Woodrum has a separate estate in fee simple, in the property bequeathed to her by Cunningham Smith.

A question is then presented, as to the effect of her joint bill of sale with her husband, to the defendant, Kirkpatrick, of the' negroes in question. She takes this separate estate under the will. It provides no mode by which she may convey or dispose of the estate. Had there been a mode pointed out in the instrument under which she derives title, she could only, pursue that mode, as has often been decided by this court. But here, there is' no provision made for her alienation of the estate. But it is not necessary for us to decide, in this case, whether or not a married woman may convey by deed, ber separate estate in personal property, upon privy examination, when tbe instrument creating tbe estate makes no provision for its alienation by ber, in any manner; or whether, in such case, it can alone be done through tbe intervention of a court of chancery. "We expressly reserve that question. But there are two grounds upon which this bill of sale will be held void as to Jane "Woodrum. The will provides that the property shall be held by her, not subject'to be sold, bartered, or traded by her husband. The answer admits that the consideration for the negroes conveyed by the bill of sale to Kirkpatrick, was a prior debt, . due by her husband, Stephen Woodrum, to Kirkpatrick. The sale was for her husband’s benefit, and virtually by him, in direct contravention to the will.

Again, this bill of sale was proved by subscribing witnesses, and no privy examination of Jane Woodrum, the feme covert, was ever taken. And whether she could convey the slaves by bill of sale, with privy examination without’ resorting to a court of chancery or not, she certainly could not convey them by bill of sale, without such examination, and this bill of sale, as to her, is void, and the title' to the slaves in controversy is still' in her, under and by the will of her father, as her separate estate; and Thus. Kirkpatrick took no title from her, to the slaves, under the bill of sale. We therefore reverse the decree of the chancellor, dismissing the bill, and also his decree upon the cross bill, and order that the slaves in question be delivered up to Jane Woodrum, as her separate estate under the will of her father.  