Where a testator after giving to his wife for life a certain plantation and negroes directed in a subsequent clause that his estate should be kept together on his lands and plantation ("not left to his wife") for a particular time, and that the profits which had accrued during that time should be divided between his daughter E. A. and his grandson J. T. G., and then in several distinct sections proceeded to limit his estate, real and personal, in and among his family upon the happening of certain contingencies; and then in another section devised and bequeathed as follows: "I further will that at the death of my wife all that estate left her during her natural life, both real and personal, be equally divided between my daughter E. A. and her children, and my grandson J. T. G., provided he shall have attained the age of twenty-one years, to them and their heirs forever." Held, upon its appearing that the daughter died without children in the lifetime of the tenant for life, but after the grandson had attained the age of twenty-one years, that the remainder in the property given to the wife for life was not affected by any clause of the will but the last, and that by that clause a moiety of the remainder in the slaves vested in interest in the daughter, either immediately upon the death of the testator or, at least, upon the coming of age of the grandson, so that upon the death of the daughter her husband was entitled to claim the same as her administrator.
DANIEL, J.
Upon this state of the case, there can be no doubt, and we so declare, that the remainder in the slaves and their increase (which had been bequeathed to Hannah Thomas for life) vested in moieties in Elizabeth McAlister and John T. Gilmore. Whether the said legacy vested in interest immediately on the death of the testator, or on John T. Gilmore's arriving at the age of twenty-one years, it is now unnecessary to decide, as Gilmore arrived at twenty-one years of age before the death of Elizabeth McAlister. But our attention has been called to the eighth, ninth, tenth and eleventh sections of the will. On reading those sections, we have no hesitation in saying that they relate entirely to other portions of the testator's property and do not touch or relate to the property given by the testator to his wife for life and then in remainder (by the twelfth clause) to Elizabeth McAlister and John T. Gilmore. By the eighth (25) section the property (not left to his wife) is to be kept together for a particular time, and then a direction how the profits which had accrued during that time should be divided between Mrs. McAlister and John T. Gilmore. The ninth, tenth and eleventh sections proceed to limit the said property in and among his family, upon the happening of certain contingencies. The property referred to in these sections, we think, does not include the interest in remainder of the slaves left by the testator to his wife for life. This may be collected from what the testator has said in the eighth section ( "not left to my wife"), as well as the express enumeration and designation of the property intended to be covered by the eleventh section, at least by the schedule appended to the foot of that section, which schedule does not include the slaves given to his wife for life. We think that the twelfth section is an independent clause, intended solely to dispose of the property given before to his wife for life. The plaintiff is entitled to have his moiety of the slaves secured, etc.
PER CURIAM. Decree accordingly.
Cited: Hearne v. Kevan, 37 N.C. 38.