Cesar v. Chew , 7 G. & J. 127 ( 1835 )

Chambers Judge,

delivered the opinion of the court.

The second exception was disposed of during the argument. There is no ground upon which to except this case from the general rule, which requires that the nature of the estate passed by the will, shall be determined from the face' of the will alone.

The first exception raises the question, whether the appellant, having served five years since the death of the testator, is now free according to the legal construction of the will.

We know nothing of the testator’s family or property, except what we learn from the will.

There are no facts in the case to shew, whether he had, or had not, any near relation beside- the appellee, or any other real estate, except that devised, or any personal estate, other than such as consisted of the kind enumerated, or other negroes than those named.

Whatever difficulty might be made, if the question arose in relation to an article of property, not enumerated, or ejusdem generis ; (and on this point we decide nothing) it is clear, that so far as regards the kind of property enumerated, the-legatee took the whole, and absolute interest, subject to the <c terms” or conditions and limitations, afterwards prescribed.

The appellee’s counsel, is not understood to deny, that the words, “ all my personal property,” are ample to pass every thing, from the heir, or legal representative, but for the enumeration, and as far as the negroes are concerned, the enumeration does not operate, because they are included in it.

The legatee then, had the absolute interest in Cesar, “ upon the terms,” or on the condition, that he was to serve for five years. After this period, he could not be the property of the legatee, because he had performed for him all the service required, or intended by the will, nor could he be the properly of any other, because the whole interest was passed away by the will from the representatives.

The apparent intent of the testator was to manumit all his negroes, at the periods, and ages respectively given, and although the wprds of the will are certainly not technical, we think they sufficiently manifest that intention. The ultimate state of freedom intended for the negroes, is expressly declared in reference to the two first given to N. Chew, and necessarily so, in reference to the child bequeathed for a term of years to its mother. The language then employed, is such as was necessary to define the different periods of service respectively intended for them, omitting the repetition of words, which we think are plainly implied.

The language was necessarily varied in the last clause, ■where no term of service being intended, the testator’s object,could only be effected by such expressions as are employed.

We think, that both upon the general intent of the will, and the particular expressions, the appellant is entitled to freedom, and that the court below erred, in giving a contrary instruction to the jury.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED