Rebecca and Mary Long v. Lunsford Long’s Ex’r.
A, by Ms marriage with B, acquired sundry negro slaves in 1794. B. had issue,' two daughters, and died. In 1809, A. died, having made his will, and bequeathed to his two daughters “ all his negroes, together with their future increase, which came by his wife B.” The two daughters claimed of the executor, not only the increase after the death of the testator, but also the increase from the time the negroes came into A’s possession. Held,
That the daughters were entitled under the will to all the increase of the negroes, from the time they came into AJs possession.
This was a petition filed in the Superior Court of Law for Halifax County, and the facts therein set forth, so far as the same are necessary to illustrate the point sent up to the Court, were a.s follows :
In the year 1794, Lunsford Long married Rebecca Jones, by whom he had issue, the petitioners Rebecca Long and Mary Long. At the marriage, the father of *20Rebecca Jones gave to his son-in-law a number of negro slaves. In 1798, Rebecca, the wife, died; and sometime afterwards, Long married a second wife, by whom 11C iiad several children living at his death. In 1809, Long died, having previously published in writing his last will and testament, which after his death was duly proved : and in the said will he bequeathed as follows, to-wit: i( I give and devise to my daughter Rebecca Jones Long and Mary Rebecca Allen Long, ail my ne-groes, together with their future increase, which came by my dear departed Rebecca, their mother, (except Frank Bibb, whom I wish to liberate on account of his meritorious services, and request my executors to attend to his manumission,) to them, their heirs and assigns, forever.” lie appointed Allen Jones Green testamentary guardian to the petitioners, and Lemuel Long executor of his will, who delivered over to the said guardian the negroes which his testator had received from his fathpr-in-law at the time of his first marriage, but refused to deliver over those negroes “ which had been born of that stock since his testator received them;” alleging that they were to be divided, with the testator’s other negroes, .between the widow and younger children, under the next clause of the will, which is in the following words : “I give and devise all the rest and residue of my ne-groes, together with their future increase, to my beloved wife, Mary Long, my daughter, Mary M’Kinnie Long, my sons, Benjamin Sherwood Long and William Luns-ford Long, share and share alike.” This petition was filed against the executor, for the increase of the negroes from the time of the testator’s first marriage, till his death. To this petition the executor demurred, and the petitioners having joined in demurrer, the case was sent up to the Supreme Court upon the question, Whether the petitioners were entitled to the increase of the ne-groes as aforesaid.
*211? at.t.. Judge,
delivered the opinion of the Court:
The clause of the will under which the petitioners * * claim the increase of the negroes in' question- is a little doubtful as to its meaning. The testator speaks of “ all his negroes, together with their future increase, which came by his dear departed Rebecca, their mother.” It appears to the Court, that it was the intention of the testator, by this clause in his will, to give to the petitioners the increase of the negroes which came by his wife Rebecca. The expression used by the testator, will be understood in common parlance, as comprehending the increase: he speaks of the negroes generally, as stock, without particularizing them by name j which circumstance is favorable to the idea, that as stock is to be diminished by deaths, so it must be kept up and supported by its natural increase. In this view of the case, the words future increase, it is true, are to be considered as useless. If, however, they are referable in point of time, to such increase as happened after the testator became possessed of the original stock, (and in this sense the testator seems to have used them) the words of the clause may well stand. This construction is. aided by the consideration, that it appears from the will to have been the testator’s intention to give to the petitioners every thing that he became possessed of in consequence of his intermarriage with their mother. Let the demur? rer he overruled.