This bill is filed by John Bullock, executor of Win Bullock, to have the trusts of his testator’s will declared, and to have tiie advice of the court on the execution of them. It is a proper case for such an application, as the will in many parts is of very doubtful meaning.
The question which presents itself is as to the increase of the slaves bequeathed to his daughters Susan Jiggils and Lucy Lewis, and to his grandson, Wm. B. Inge.. As to tlie latter, wo decline to give an opinion, as the testator says he lias made his grandson a deed of gift for the slaves. This deed must determine the question, and we have it not before us.
*314A legacy to a daughter of “the negroes I placed in her possession at her marriage,” passes the increase as well as the original stock.
A parol gift of slaves is not entirely void by the act of 1806,(72ct. c. 701,) the death of the donor, or a confirmation of it by him renders it good ab initio.
As to the two former, we think that the increase passed to his daughters respectively, together with the original stock, as wre look upon the bequests rather as confirmations of prior gifts than as legacies de novo. The testator in describing the original stock, says they are the slaves which he put into their possession, upon their . . marriages respectively Our act of 1806, {Rev. c. 701 does not annul entirely gifts of slaves made by parents to children, either express, or those presumed from a delivery of possession, but leaves them in the hands of the child as an advancement, if the parent does not by will or otherwise, declare the contrary. And although in this case, they are not advancements, so as to be brought into hotch-pot, for there is no intestacy, yet they have that character so far as to -form a guide in-arriving at the testator’s intent. There are additions al reasons appearing upon other parts of the will, which support this conclusion. In the clause creating cross remainders, we understand that this property is not esteemed as property received under the will, but as falling within the description of that heretofore received. The codicil affords strong proof, that as to these legacies he did not deem it necessary to mention the increase in order to pass them. For he therein declared, that as to the increase of the negroes bequeathed to his son John, in trust for the heirs of his son William, and of his daughter Fanny Jinn, he intended it should pass, anchis silent as to the increase of those bequeathed to his daughters Susan and Lucy. In the will, they were bequeathed in the same way without the increase. As to those given in trust for the heirs of his son and daughter, there had been no prior gift or delivery to the trustee, or the heirs, which the will could confirm. And therefore the testator very probably concluded, that it required express words to carry the increase. He there inserted the increase in the codicil as to them and said nothing as to the legacies in question, thinking as we believe, that the increase passed by the confirmation of the original gift. An additional reason might be given. He made a de^d of gift to his grandson, Wm. B. Inge, *315for ihe negroes lie put into the possession of his mother under the same circumstances. This' deed carried the interest from its date. Why then it may be asked, should he make this exception against these two daughters ?
A legacy of stock in trade and all purchases made therewith, gives the legatee the profits there.
Wc think also, that the bequest to the plaintiff of the testator’s interest in the Clarkesville si ore, in trust for the heirs of his son William, carries with it the testator’s share of the profits. This, we think, sufficiently appears on the face of the will. But taken in connexion with the master’s report made from the books of the concern, and from the testator’s own books, to which wo think the testator has given a testamentary character and which ought to be proved as parts of his will, as far as they are referred to in it — there cannot be a doubt on the subject. The words of the will are — “my said son John, (who became the partner of the testator after the purchase) is to continue to manage it to the best advantage, as ho has done for several years past, with all the purchases lie has made of (with) said stock, for the benefit of John and William Bullock, I do hereby leave for the benefit of the heirs of Win. H. Bullock.” From the master’s report, it appears that nearly the whole of the stock and profits, at least a great part thereof, had been applied to the use of William IS. Bullock, with the testator’s consent. I say with his consent, for he was a partner, and lived in the neighborhood, and it is presumed he knew the state of the books. And further, the sum of $1015 10, the one half of the amount given for the goods by William and Richard, Bullock,, to William and John Bullock, is carried to the testator’s own books, and entered as a credit thereon to Jfm. H. Bullock. We cannot but understand from this, that the appropriations made to the use of William SI. Bullock, by John Bullock, the active partner, 'were known to and approved of by the testator. And these advances made to Jim. H. Bullock, and appearing on the testator’s books, as charges against him, against whom and all his other ©hildren, it appears that the testator kept accounts, is conclusive evidence to show, both that the testator in* *316tended tbo profits to pass ; amt also approved of the ap-propriatiou of both stock and profits by the plaintiff, the active partner, to the use of Wm. II. Bullock. No exceptions being taken to the master’s report on this subject, the same is confirmed; and the executor is directed in closing the accounts of said concern, to make the said report the basis of the settlement.
A legacy to tlie lieirs of a living person, is to bo construed as to his children, if it will that he is li-v'ms-
And in that case after horn children take un-dor the words “heirsproceeding from Uls body» ■
The next question is, as to the meaning of the words, heirs of the body, or heirs proceeding from the body: for ,. , , . , . . .. . . , testator uses both expressions indiscriminately. — - The words imnort a present gift. And if there is no person to taKc the legacy, it is void. As to the meaning of the words lieirs of the body of Wm. II Bullock,. we arc relieved from all difficulty on the subject. For the testator notices in another part of his will, that his son „ . ,. _ , ,. , William 11. is ahve. In speaking of some article, lie says, “which my son William II. has now on loan.”— —. . . , f, » .. . . Jhvidently therciorc, lie di« not mean heirs m its technical sense, the representatives of a dead man, but heirs apparent, to wit, issue, children. And we think the same construction must be put on the words, “heirs of the body of Fanny Ann Until.” In the first place, we Lave a specimen of the testator’s meaning of the words,. and unless controlled by other words, the same words should have the same meaning j and especially, when used by the same person in the same instrument, on thesamesufc-ject matter. The words are ‘ ‘ proceeding from the body 5” which word proceeding, is future, contingent, not past — ■ which have proceeded. It looks forward to the having of other children. Another reason might be given, if necessary. The testator mentions his daughter, Fanny Jinn, many times. Ho never declares whether she is living or dead. He mentions his daughter Elizabeth, hut once. He then calls her his “deceased daughter.’? Í have avoided touching on the doctrine of the case of Stith v. Barnes, (1 Law. Rep. 484.) We are therefore of opinion, that in each case, the words hdirs of the body mean children, or rather issue. The next question is, do these words take in after born children ; or is it confined to those born at the making of the will, or the tes* *317tator’s death. We think it embraces all. And we rely on the word jyroceeding as sufficient, independently of all other reasons. We are aware that in the conveyance of a mere legal estate, the estate cannot open and shut, as it is called. For the estate must pay to the grantee at first, br not at all. I speak of immediate freehold interests. It is otherwise as to a use or a trust. These may-cease in one person in whole or in part, and arise in another. Ami if it be a use, a sufficient scintilla of seisin remains in the trustee, to be converted into a seisin to feed the new use. And it is the same in wills. But here there is not only a will, but a trustee also for the heirs, as well those born as those to be horn. This is said as to the lands.- As to the personal estate, the inconvenience of permitting it, is here avoided. For the legatees in trust are not entitled to the control of the property, or to call for an immediate conveyance on account of these ulterior trusts ; so that there is no danger of its being wasted or eloigned, to defeat the ulterior cestuis que trust.. And we can therefore see no reason, why the personal estate also, should not open upon the birth of a child, and let it in to the benefit of the trust. And if there was no trustee appointed by the will, the court, to effectuate these intents, would declare the heir and executor trustees for that purpose.
The next question is, what property is subject to the cross remainders ? From the will we are bound to say all the properly taken under ii. These arc the testator’s words; and there is nothing in the will to control them, or-vary the meaning, only tiie expression “ not adverting to what has heretofore been given.” This can control them so far only, as to exclude all property, which the will states, either expressly or impliedly, to have been heretofore received. For as to that, the testator has made the will more confirmatory than legatory. But we cannot travel out of the will to ascertain what he intends to confirm as a gift or qziasi gift, and what he in-, tends as a legacy de novo, entirely under the will.
[ His Honor then proceeded to specify what property was subject to the cross remainders, and came to the con* *318elusion, that all the property which had not been given by the testator to his children before the date of the will, was thus subject — including in this exception, property which had been given to r'Hliiam II. Bullock, and Fanny Jinn limit, but which was by the will devised to the plaintiff in trust for their several children.]
Accounts rc-becometestameu-tary and may bo nono?thntiSta-tot’s intention,
The Executor has asked the advice and assistance of the court, in regard to the property subject to the cross remainders. He must take bonds from the legatees with ample sureties payable to himself, that the property shall be forthcoming, in case it shall be necessary, to perform the'ulterior trusts of the testator’s will.
Upon the subject of accountability for the receipts and advancements to equalize the distribution, upon what the testator calls the first division of his estate, wo are left somewhat in the dark. But after much consideration, we think that nothing received under the will, except the $ 4,000 to John Bullock, anil a part of the legacy given to him in trust for the heirs of Fanny Jinn Hunt, are to be accounted for. The testator’s will, as to what is equality, is the sole law. He can by his declaration so far as respects this question, make that equal which is in fact unequal. In giving the other legacies, he says nothing about inequality, but whenever he speaks of those two, he speaks of equality and drawbacks, and directs that they shall bo accounted for upon the division. It appears also, that the testator had something else in view when he speaks of equalizing the other legatees, master reports, that lie had kept accounts against i,is children. It must bo that he refers to those accounts, when he says, these two legatees are in advance of the -others. Had not the testator by referring to his books, made them in some degree testamentary, wg could not possibly travel out of the will to ascertain his meaning. In making the division, the executor will not consider the legacies given in the will, except as above mentioned, as creating the inequality to be made up upon the division. But he will be governed by the master’s report on the subject, as to the advancements made to the different children } and will make that the basis on which *319to found the equality directed by the testator, except as to the legacy to himself of g 4,000, which he will take into the account as so much advanced him, together with interest thereon from the time he received it. He will also take into account the monies paid hy the testator for the land devised to him, in trust for the heirs of Fanny Jinn Hunt, together with all his testator’s liabilities for John Hunt, deducting therefrom the bond which his testator gave to John Hunt, all which appears upon the master’s report. The executor will strike a fair balance, and make what is due from John Hunt the basis of equalizing the legacy to the heirs of Fanny Jinn upon the division. In striking the balance, the executor will include what he, as executor, has yet to pay on account of his testator’s suretyship for John Hunt, as wel] as what he has paid.
The Clerk and Master having reported, that William H. Bullock and John Hunt are prudent and discreet persons, and properly qualified to take the management of the property bequeathed to their respective families, the executor is hereby authorized, if bethinks proper, to put the trust property in their hands respectively, for the support of their families and to permit them to expend the whole profits for that purpose, and in the education of their children, the master having reported that they are not more than sufficient for that purpose. But the property is to be under the supervision of the executor, who may at his pleasure withdraw it, and must do so upon their mismanagement.
As to the application of the trustee to ho permitted to retire from the trusts, we can see no reason why he should, and therefore refuse his application.
We are also of opinion, that the heirs of William H. Bullock and the heirs of Fanny .inn Hunt form a unit each, and that upon the death of any one of them, the share of the one so dying goes to its heirs and next of kin, and not to the children of the testator.
Per Curiam. — Degree accordingly.
*320At this term the plaintiff" filed a petition verified by affidavit, in which he stated that the defendant Richard Bullock had become insolvent and as far as the interest of his infant cestui que trusts extended, lie prayed that the legacy of the defendant Richard should not bo paid over to him.
The defendants also filed a petition to rehear that part of the former decree which declared that all property which passed under the will was subject to the cross limitations — contending that it only applied to the property.-to be received at the last division. A rehearing was also bad of the former order, refusing to substitute William II. Bullock and John Hunt as trustees for tlieir children instead of the plaintiff.
Gaston, for the defendant.
We are satisfied with our former opinion, as to what part of the testator’s property is subject to the limitations in cross remainder; the words of the will arc too strong and point too plainly to what shall be received under the will as distinguished from that which had been heretofore received. The first, meaning that which the legatees had not possessed before but claimed entirely under the will; the latter, that which helmd before the making of his wdll possessed them of, and confirmed to them by the will. We went as far as we could in declaring that the property put into the bands of William H. Bullock and Fanny Jinn Hunt, and by the will given to John Bullock in trust for tlieir respective Children, to be property not received under the will in the meaning of the testator; substituting the trustee to their prior possessions, and their children to them.
We think that wc erred in directing the executor not to pay or deliver over the property subject to the cross limitations in remainder j for the testator has prescribed no conditions, and we think we cannot so do unless for some cause which wo think would have determined the testator himself to provide the means hy which his ulterior legatees should not be disappointed. In such a case we think it would be our duty to interfere, for we should *321then speak what we presume the testator would himself say were he capable of speaking, or would hare provided for had he foreseen the necessity. It is going very far then to take care of a remote contingent interest, to the prejudice of the near and immediate objects of the testator’s bounty, for it almost necessarily reduces the legacy to its interests or profits only. However, where there is a cause for it, as insolvency or the like, we think that we are bound to interfere, and John Bullock, the executor, as guardian and next friend to James Bullock, and trustee for the children of William 11. Bullock and Fanny Ann Hunt, having by his petition, verified by affidavit presented at this term, stated that Richard one of the legatees is insolvent to a very large amount, and praying that the said Richard should bo restrained and enjoined from demanding any part of said legacy in cross remainder so far as those for whom he acts are concerned, we think that until the petition be disposed of, that the prayer of the petition should be granted and the benefit of it be extendéd to all, for if Richard be insolvent it should affect all those who may claim.
In remote limitations of personal estate the first taker is not to secure the forth coming of the property to answer the ulterior' limitations unless ho be insolvent.
¥c therefore direct, that until bond and satisfactory surety be given by Richard for the forthcoming of the property as before mentioned, or until this court shall otherwise direct, the executor shall not pay said legacy or any part thereof to said Richard, and that the said Richard be restrained and enjoined from demanding and suing for said legacy.
In the former decree it was erroneously directed that the plaintiff should be charged with interest on the four thousand dollar legacy, from the time he received it. The court reverses so much of that decree and now declares that the same is payable out of the funds of Norwood and . Bullock from the first money received therefrom after the payment of the debts of the firm. The legatee is and was entitled to receive the same out of the first money collected from said firm, after paying the debts thereof and that he is not chargeable with interest thereon, but if the fund is sufficient, he is entitled to interest thereon from one year after the testator’s death until he recover the amount.
*322The petition of William H. Bullock and John Sunt praying to be substituted for John Bullock as trustee for their children respectively, is continued for further con-' sideration.
Per Curiam» — Decree accord in gxy.