Kemp v. Daniel

By the Court.

Warner, J.

delivering the opinion,

[1.] The only question for our judgment, made by tho record in this case, Is the proper construction to be given to that clause of Bates Bailey^s will, which relates to tho bequest to bis daughter, Celia Rosamond Powell.

The testator first directs that all bis property shall be kept together, until the first of August, 1830.

After making a bequest to his son, John Bourbon Bailey, the testator made the following bequest: “To my daughter, Celia Rosamond Powell, I give and bequeath, and to the heirs of her body, the following named negroes, to-wit: Hannah, Alex, Screen, and Dick. Should she have no heirs from her body, she is to have the use of said negroes her life-time, and at her death, should she die without any heirs from her body, the four named negroes above, and their increase, to return to my son, John B. Bailey, as his property, or to his lawful heirs. It is my wish and will, that in the year and date above mentioned, for all my property, consisting of negroes — whether men, women, or children— horses, cattle, hogs, household and kitchen furniture, plantation utensils, all together, to he given up to my son, John B. Bailey, as his property, except the four negroes mentioned above, which are to be given up to Celia R. Powell.”

What estate did Celia R. Powell take in the four negroes men, tioued in this clause of the testator’s will 1 If we lake the first part of the clause, and read it as follows — “ To my daughter, Celia Rosamond Powell, I give and bequeath, and to the heirs of her body, the following named negroes” — without any regard to the superadded words employed by the testator, then, an estate tail is undoubtedly created, and the absolute estate to the negroes vested in Celia R. Powell, as was ruled by this Court in Choice vs. Marshall, 1 Kelly, 97. Without any superadded words, explanatory of the intention of the testator, the words, “ heirs of her body,” would be held to be words of limitation, and not words of purchase.

But we think that the superadded words employed by the testator clearly show, that it was his intention that his daughter; Celia R. Powell, should take a life estate in the negroes, and that the words, “ heirs of her body,” were intended to be employed by him as synonymous with children.

If the contents of the will show that by the word “ heirs,” the testator meant other persons than next of kin, those persons will he entitled, and children may take under the word “ heirs.” 1 Roper on Legacies, 85, 86. 2 Roper on Legacies, 354. Swain vs. Roscoe, 3 Iredell’s Law Rep. 200. Here, the testator’s daughter is to have a life estate in the negroes, and at her death, should she die without any heirs from her body, the four named negroes and their increase, are given to John B. Bailey, the testator’s son, a person then in life, which negatives the idea that the testator intended by the words, “ heirs of her body,” an indefinite failure of issue. Taking all the words employed by the testator in his will, as explanatory of his intention, it is our judgment, that Celia R. Powell took an estate for life in the negroes, with remainder to her children, as purchasers under the will; and in the event Celia R. Powell had died without children, then, upon the happening of that contingency, John B. Bailey would have been entitled to the property.

Let the judgment of the Court below be affirmed.