
    
      Daniel Foster et al. vs. D. Kerr and W. Edrington.
    
    Bequest of slaves to a feme covert “to her and the heirs of her body, and to them alone, ” does not confer a separate estate on the wife, in exclusion of the rights of her husband.
    
      Before WaRduaw, Ch., at Fairfield, July, 1851.
    Plaintiffs, children of Josiah Foster and Pinckey, his wife, •which Pinckey was the only child of Z. Hall, filed this bill, April, 1849, claiming certain slaves as enuring to them under the operation of the will of their said grand-father. The will bore date February 18, 1826, and was admitted to probate, February 20, 1830. Its fourth clause was as follows : “ I give unto my beloved daughter, Pinckey Foster, to her and the heirs of her body, and to them alone,’ the following tracts of land, &e.; also seven negroes and their increase, namely: Sal, Anny, Caroline, Cynthia, Beck, Jim, Charity; also one bed and furniture, furnished equally to the one above mentioned.”
    In December, 1833, Josiah'Foster sold Sal and her children,'. born since the death of testator, to wit: Jerry, Daniel and Bun-el, to defendant Kerr, and in February, 1836, sold Caroline to defendant Edrington. Pinckey Foster died about 1835, and Josiah Foster died intestate, in 1836.
    WaRMíAw, Ch. The question is, whether the bequest is of a separate estate in the slaves to the wife, Pinckey Foster, in exclusion of the rights of the husband. The gift is ‘ to her and the heirs of her body, and to them alone.’ It has been long ago settled, that these terms, without the last clause, would, in a gift of personalty, carry the absolute estate, upon which of course the rights of a husband would attach, and the only dispute is as to the meaning and effect of the words, “ and to them alone.” I construe these words according to their natural and grammatical reference, to qualify the force of the word ‘ heirs ’ only, and to convey, by a common pleonasm, the meaning of the testator, that none but heirs of the body, not heirs general, should take by succession from the first taker. Upon tbis construction, the quantity of estate in the wife, and through her in the husband, would not be limited by the words. But the consequence would be the same, if we construe the words reddendo, singula singulis, as referring as well to the wife as to the heirs: for then the meaning would be, that none besides the wife and the heirs of her body, successively, should take the estate, which, as to chattels, would be a gift absolute to the wife, upon the fixed technical construction, often defeating the real wishes of donors. Myers vs. Pickett, 1 Hill, Ch. 37. No doubt can arise in the case, except by torturing the phrase heirs of the body, into children, and deducing that those in existence at the death of the testator, shall take jointly with their mother. If we held the children thus to take as original donees and purchasers, all of the plaintiffs would now be barred by the statute of limitations, except, perhaps, Susan Morris; but I reject this forced construction. A separate estate in a married woman, in derogation of the husband’s common law right, can be created only by express terms, or by necessary and unequivocal implication. Wilson vs. Bailer, 3 -Strob. Eq. 260. The implication in this case, to exclude the husband, is much feebler than in Weatherford vs. Tate, 2 Strob. Eq. 27, where it was regarded as insufficient. The gift there was to a married woman for life, and at her death to the heirs ■of her body, with a provision that the property should not be sold by the husband, nor removed from the State ; and this was held to confer an absolute estate on the husband, upon his reduction of the property into possession.
    It is ordered and decreed, that the bill be dismissed.
    The plaintiffs appealed, on the ground, because it is apparent -that it was the intention of the testator to create a separate estate in Pinckey Foster and her children, free from and beyond the control of her husband, Josiah Foster; and the decree should have ordered that intention to be carried into effect.
    
      A. W. Thomson, for appellants.
    
      Boyce, Boylston, contra.
   Per Guriam.

This Cpurt is satisfied with the decree of the Chancellor from which the appeal is taken; and it is ordered that the same be affirmed, and the appeal dismissed.

JOHNSTON, Dunein and Daegan, CC., concurring.

Appeal dismissed.  