Green v. Lane, 45 N.C. 102, 1 Busb. Eq. 102 (1852)

Dec. 1852 · Supreme Court of North Carolina

45 N.C. 102, 1 Busb. Eq. 102

DAVID GREEN AND OTHERS against HARDY B. LANE AND OTHERS.

However the general rule may be, both here and in England, as to whether a will and codicil, when admitted to probate as one instrument, must be so construed, yet this Court will not, in determining the particular case before it, overlook the fact that the testator calls the second paper a codicil, and that the bill and answer so designate it.

Where a testator by his will directed his slaves, consisting of a mother and her children of various ages, to be removed in as short a time as practicable, and with the intent to a permanent settlement in some State or country where emancipation was unrestricted, and there to be entirely emancipated, and also made provision for their subsistence and education; and eight years thereafter, made a codicil and republished his will, and gave to trustees a house and lot in Ncwbern and certain personal property, including household furniture, and a cow and calf, upon trust that they should permit the mother to use» occupy and enjoy the same during her life, and at her death, to surrender up the estate to the other slaves: — Held, first, that this provision indicated a change of mind of the testator, and his intention that the mother should reside on thp lot — so as to revoke the provision of the will for’her removal', and secondly, that as the testator had thus evinced a disposition to evade the law as to the mother, it ought to appeal* by the codicil, that he wished the fate of the children to be different from hers, or it must be presumed he intended that they also should remain.

(The cases of Hayioood v. Craven, 2 Car. L. Repos. 557, Pendleton v. Blount, I Dev. & Bat. Eq. 491, Sorrey v. Bright, Ibid 113, and Lemmond v. Peoples, 6 Ire. Eq. 137, cited and approved.)

This cause ivas removed from the Court of Equity for Craven County, at Spring Term, 1851 ; and came on at this term, upon a petition to re-hear the decretal order made therein, at December Term, 1851, of this Court. The following is the case, as stated by Chief Justice RuffiN, in delivering the former opinion of the Court — (8 Ire. Eq. Rep. TO):—

" William S. Morris, of Newbeni, made his will on the 15th of March, 1831, and therein appointed the defendant Lane the executor, and gave to his executor all his estates, except a negro woman named Patsy, and her three children, Harriet, Albert and Freeman, in trust for the following purposes : First, to sell the same and collect the proceeds and other monies due to the testator. 1 And, secondly, that as soon after my decease as practicable, and f at all events within a year thereafter, my executor remove beyond e the limits of this State, and with the intent of a permanent resi-1 dence, to some State or country, where emancipation is unre{stricted by law, the said Patsy, Harriet, Albert and Freeman, 1 and there cause them to be entirely emancipated. Thirdly, that 5 my executor shall apply one half of my money, debts due. me, ‘ and the proceeds of sales before directed, as a fund wherewith ‘ to effect the removal and emancipation as aforesaid, of the said 4 Patsy, Harriet, Albert and Freeman, and to provide for them, ‘ after emancipation, in such manner and form as my executor ‘'shall judge best, as the means of their education, improvement ‘and comfortable subsistence.’ And fourthly, that the other half be applied in certain other legacies.

“ By a codicil, dated May 30th, 1838, the testator expressly republished his will which, he says therein, was written by Judge Gaston, and appointed Hardy Whitford and John L. Durand executors ; and he ‘ devised to them, or the survivor of them, my ‘ piece of ground, with the improvements, on the west side of ‘ Craven street, between, &c., and also my household and kitchen ‘ furniture, my cow and calf, and ten shares of the capital stock ‘ of the Merchants’ Bank of Newbern ; to hold said real estate in ‘ fee simple, and said personal property absolutely, in trust never- ‘ theless to permit my woman Patsy to use, occupy and enjoy the ‘ said piece of ground and improvements, and said furniture, and ‘ cow and calf, and to have the dividends of said Bank Stock, dur- ‘ ing the natural life of said Patsy, and after her decease, in trust ‘ to surrender up said real or personal estate to Harriet, Albert and ‘ Freeman, the children of said Patsy, to be held by them in ab- ‘ solute property. Item, I desire my executors or the survivors of ‘ them to sell the lots, Nos. 83 and 67, in the town of Newbern, at ‘ public auction; and of the proceeds of the sale I give unto William ‘ Henry Morris, son of said Harriet, and grandson of my woman ‘ Patsy, one thousand dollars ’ — giving the residue of such proceeds to certain other persons.

“ The testator died in 1848, and Lane and Durand, the only surviving executors, proved the will. The bill was filed against them in 1850, by the legatees named in the will, other than the negroes, and by the heirs and next of kin of the testator for an account, and payment of the legacies, and the distribution of the surplus undisposed of; and praying that the dispositions for the emancipation of the slaves and for provisions for them, may be declared unlawful and void, and that a trust in regard to the real estate may be held to result to the heirs, and of the personal estate to the next of kin.

" The answer of the executors and trustees states., that the boy Albert died before the testator ; and that £ in the year 1828, the £ testator carried the slaves Harriet and Freeman to the State of £ Pennsylvania, and there caused proceedings to be had for their £ emancipation, and did, accordingto the laws of Pennsylvania in £ such cases provided, emancipate and set free, as he was there £ advised, the said slaves, and then returned with them to his £ former residence in this State ; and that from thence until his £ death the said Freeman and Harriet were in his possession and £ use : And that, being advised after his return that the said pro- £ ceedings were irregular and contrary to the policy of the laws of £ this State, and that said emancipation was void here, and would £ probably be so declared at his death, the testator, under the ad- £ vice of Judge Gaston, executed his will in 1831, and subsequent* £ly thereto, the boy William Henry was born, who is mentioned £ in the codicil, as the child of said Harriet. ’ The answer submits whether under these facts Freeman and Harriet were not duly emancipated, and whether, therefore, William Henry was not free by birth.

" The answer further states ‘ that within the year after the testator’s death, and before the filing of the bill, the defendants removed the negroes Patsy, Harriet and Freeman to the State of Pennsylvania, with the intent of a permanent residence in that State — the same being a State in which emancipation is unrestricted, and there caused them, the said Patsy, Harriet and Freeman, to be entirely emancipated. And in that they say they did as they were advised, and as they believed in the faithful discharge’ of the trust reposed in them by their tesiator, it was their duty to do ; and that if any other thing remains or is necessary to perfect the execution of said trust, they are willing and ready under the order and direction of the Court, to perform the same.’ The answer then states the application of part of the funds of the estate to the removal and subsistence of the three negroes, Patsy, Harriet and Freeman, and the payment of two years’ rent of the house and lot to Patsy.”

Moore, for the rehearing.

The error complained of, seems to have arisen mainly from three sources:

1. It is erroneously assumed by the Court, that the will and codicil are two distinct instruments, and are irreconcilably repugnant ; and that the clause of the will, directing the slaves to be removed out of the State, is revoked by the codicil, because, by the latter instrument, an estate in a house and lot and some personalty, is given to trustees, “ to perndt slave Patsy to me, occupy and enjoy ” the property : whereas they are one instrument; and moreover, if they are two, they are reconcilable with each other.

2. It is erroneously assumed, arguendo, that the trustees, after the death of Patsy, are to permit the children of Patsy to “ use, occupy and enjoy” the property: whereas, the remainder in the property is given to them, absolutely and stripped of the trust, without any condition, express or implied, as to the mode of enjoyment.

3. The Court assumes, that there can be no construction given to the words “ use and occupy,” except that the donee is to abide and live on the premises : that these words are without meaning, unless they imply actual personal residence on the land, and actual personal manucaption of the personalty.

It appears from the probate, that both the will and codicil were proved as but one instrument, and as the will of the testator: whether they were to be regarded as one or two instruments, was a question which could be made only at the probate ; and the sentence of the probate court is conclusive on every other court for every purpose whatsoever, dependent on their being one or-two instruments.

The invariable rule of construing two papers thus proved, is that of construing a single paper. Where they are li proved as one instrument, they must all be construed together.” (Brine v. Perrier, 10 C. E. C. R. 193 — W’ms. on Ex’rs. 801; Hillers-don v. Loioe. 24, E. C. R. at 366, et seq. — 2 Hare 355; Baillie v. Butterfield, 1 Cox, 392 5 Campbell v. Rodnor, 1 Br. C. C., 272.)

Independently of this artificial rule, the testator declares the codicil to be a part of his will. Being one instrument, the codi-cillary part, for the purpose of interpretation, is regarded as being incorporated into the will. When incorporated, the will reads thus : — u Secondly, as soon after ray decease as practicable, and at all events, within a year thereafter, my executors shall remove beyond the limits of this State, and with the intent of a permanent residence, to some State or country where emancipation is unrestricted by law, my slaves Patsy, Harriet, Albert and Freeman, and there cause them to be entirely emancipated.

“ Thirdly, my executors shall apply one half of my money, debts, &c., as a fund wherewith to effect a removal and emancipation, as aforesaid, of the said Patsy, Harriet, Albert and Freeman, and to provide for them after emancipation, in such form and manner as my executors shall judge best, as the means of their education, &c.

“ I also give and devise to my executors, Whitford and Durand, my piece of ground on Craven street, also my household and kitchen furniture, my cow and calf, and ten shares of the bank stock of the Merchants’ Bank; to hold said real estate in fee simple, and said personal estate absolutely, in trust nevertheless to permit my woman Patsy to use, occupy and enjoy the said piece of ground and the improvements, &c.; and to have the dividends of the bank stock during the natural life of said Patsy, and after her decease, in trust to surrender up said real and personal estate to Harriet, Albert and Freeman, the children of said Patsy, to be held by them in absolute property. ’ ’

It is confidently submitted, that if these extracts from the will and codicil, had been written in one instrument, no one could have foutrd a difficulty in giving to each part a precise and full meaning. In one part, there is a clear gift of freedom and the means of education, and a permanent home in some other State or countryin the other, a gift of property situate in this State, to be vested in trustees till the expiration of the life estate, and then to be denuded of the trust, and become the absolute property of the remaindermen.

The opinion of the Court treats the will and codicil as distinct instruments. Remove the codicil, and the provision for emancipation is lawful, say the Court. But why remove it, if both may stand together, when incorporated together as one?

But they are not irreconcilable when considered apart: they are not so by force of the words themselves, and it is against all reason to make them so by construction.

It is certain, that the testator knew that the slaves could not remain in the State, after emancipation. This knowledge gave birth to the explicit directions in the will — and he equally well knew that they could not be educated here, either as slaves or free negroes. To suppose that he did not intend their removal, is, necessarily, to suppose that he intended to disappoint his will — to deceive his slaves, and not only to destroy the will, but to make void the codicil itself. Nothing can be more unreasonable than such a conclusion. It is not in our power to believe it. Then, unless his words admit of no other meaning than that his slaves should remain in the State after emancipation, such interpretation is unjust and against all rule, by which wills are to be construed.

The Court ought not to adopt such a conclusion, if it may possibly be avoided, because,

1. The words which require their removal, are known to have been written for the express purpose of providing for their actual removal “ in a short time, and certainly within a year.”

2. The words used for that purpose, are apt, precise, definite, full, and admit of no debate as to their meaning or object.

3. Without such interpretation, both will and codicil are rendered nugatory.

4. The testator, who understood the full force of his words, would have annulled the provision plainly and directly, if he had changed his mind ; and would never have left his executors to the accident of finding by construction, in a word of double meaning, a countermand of instructions so explicit and peremptory ; and that too, in a moment after he had republished those very instructions.

5. A change of mind, so vaguely expressed, could not hope for execution but through secret instructions, and there is no proof of such.

6. The provision for removal is just what the law required ; and no one is presumed to intend a fraud on the law.

7. Because the law favors every construction that favors liberty.

Therefore, the words from which it is inferred, that the testator intended to destroy the provision — to disappoint his slaves, and abrogate their right to freedom, or commit a fraud on the law, should not only be incapable of any other meaning, but should so clearly contain the meaning adopted by the Court, as to admit of no debate or question on the point. (Stokes v. Heron, 12 C. & F., 2 pt. p. 161.) u If the will is clear, a condicil to alter it must be unencumbered by a doubt.” “ The will, in all cases, is the primary and governing instrument,” per Ld. Brougham at p. 165, etseq. “ The absurdity of an interpretation may be so great as to raise an implication,” per Ld. Cottenham, at p. 193, March v. Mar chant, 46, E. C. 1/. R. 813 ; Edens v. Williams’s Ex’rs., 3 Mur. at p. 32. The will and codicil, even when distinct papers, must be construed together, and every part be mai'e to stand, if possible ; and revocations are not favored or presumed. (Hill v. Chapman, 1 Yes. 403 ; Crosbie v. McDowell, 4 Yes. 610, Ram on Wills, L. Lib. 265 ; Jones v. Jones, 2 Ire. Eq. 389.)

In truth, however, in a case like this, where the question is one purely of repugnancy, and not of cumulative legacies or the like, the rales of construction are the same, whether the instruments are to be considered one, or two. If the provisions are irreconcilably repugnant, they cannot stand in one, better than in two papers : and to admit that they might stand, if in one paper, is to concede that they may be reconciled, and then, of course, they must stand, although in two.

“ It is an established rule not to disturb the dispositions of the will, further than is absolulely necessary to give effect to the codicil.” (1 Jar. on Wills, 160.)

“A codicil is no revocation of a will, except in the precise degree in which it is inconsistent with it, unless there be words of revocation.” (Jar. utsupra, n. 2 ; Brant v. Wilson, 8 Cow. 56.)

“ It is a settled and invariable rule not to disturb the prior devise further than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition- ’ ’ (1 Jar. on Wills, 414.)

The testator, in the codicil, expressly republishes his will, yet the Court say, “ the testator must have changed his mind as to the residence of the negroes, and when he made the codicil, he intended that they should be free and remain here. It must be so inferred, because, in the codicil, he devises the lot and improve-merits in Newbern to trustees, to permit Patsy, during her life, to use, occupy and enjoy them, and after her death, for her children.”

These words apply to Patsy, but it is a mistake to say, that the testator applies them to the children, all of whom, it appears were more than half grown, when the codicil was made, and one of whom was then the head of a family of her own. The codicil provides, simply, that after Patsy’s estate shall end, the property, stripped of the trust, shall belong absolutely to the children.

To Patsy alone the word “occupy” is applied. Does this word, necessarily signify that she must live on the premises? Does it as clearly imply that she shall remain in the State, as the words of the will do, that she shall leave the State, and go to “some other State or country ”? If so, the papers are irreconcilable, and they furnish, under all the circumstances, the most unaccountable and flat contradiction ever witnessed.

Can Patsy “ use and occupy ” the property without remaining in Newbern?

I think it clear that the words were used to give property, and not to designate the mode of enjoying it. Had they been used in a devise to a freeman, actual, personal occupancy would never have been inferred, as a condition of the enjoyment. “ Occupy ” is a word of liberal meaning : Even in Statutes concerning land it is used as synonymous with “ hold ” : as in 11 Geo. 2 ch. 19, which gives an action “to recover satisfaction for lands held or occupied.’’’’ As also in the act of 1850, ch. 120, which copies the words of the Statute of George. During the last half century the Courts have found no difficulty at all, in deciding that a respect for good English did not require that there should be a personal residence in order to satisfy the meaning of “occupy.” It is perfectly well settled that in deeds, it does not necessarily imply a possessio pedis. The term is used in legal precedents of the highest authority — in declarations for use and occupation, 2 Ch. PI. 45 46, and its meaning is fully satisfied by the occupation of an under-tenant, though the occupier in law never saw the premises. (Bull v. Sibbs, 8 T. R. 327 ; Pinero v. Judson, 19E. C. L. R. 56 ; Brown on actions 494 — ’5 ; Saund. PL & Ev. 889.) So that a lease to a non-resident free negro, on condition that he shall íC use and occupy,” without any prohibition against underletting, would be good.

The terms were, doubtless, selected by a lawyer, or taken from some common form book, and are generally used to denote the fullness of the estate of the cestui que use, as distinguished from a trust to pay debts, and also to exempt the trustee from responsibility for the profits. Patsy, therefore, could morally, legally and technically “ use and occupy ” the premises, by leasing them for life. In other words, she could remove, and yet occupy them. So there is no repugnancy in her removal out of the State, and her use and occupation of the lot.

No one, therefore, can say, that the testator has, with the same clearness, declared his purpose, that she shall remain, as he has, that she shall remove.' But with what propriety can the other slaves be affected by these words, if their meaning and connection fix Patsy’s intended abode in the State? The terms are, dropt in the devise to them : — the property is to be u surrendered ’ ’ to them. Now, this is the legal mode of devesting the trustees of their estate, and the surrender imports only, that after her death, they shall have the property, not that they shall “ occupy ’ ’ it. And there is not a word in the codicil respecting them or their property, in which can be found an idea definite or vague, concerning'their place of abode here or elsewhere.

Á devise like this in the codicil, taken without a context, would give to a freeman a life estate simply, and, without even an implied condition of residence here. Such a devise to a free negro resident abroad, who is forbidden by our law to come hither and settle, would not be void, upon any implication that the testator intended that the free negro should violate our law by removing into the State. Most certainly it would not, if the testator should declare it to be his wish, that the free negro should stay out of the State. Can it be otherwise, when property is given by the same words to a slave who is directed to remove away, and permanently settle in some other country ? If it be said that the very fact of residence abroad will serve as a context to explain the words “ use and occupy ” in a devise to a non-resident free negro, this argument will show, first, that these words do not necessarily import a personal occupancy ; and, secondly, that they are well capable of being explained by the context in the will which directs their removal. The condition of non-resident free negroes does not render them incapable of possessing land here — and land is well conveyed to them by the terms “to have and to-hold.” The testator has only devised a remainder in property to slaves, whom he directs to be removed for emancipation- Is there any thing irreconcilable in their enjoyment of such property, and their removal? Would the directions for emancipation have been revoked by a devise to Patsy for life, remainder to her children ? Such, and no more, is the devise to the children.

So far as they are concerned, the whole case, stated in its strongest light against them, is this : Both mother and children are well emancipated by the will; by the codicil the testator declares his purpose to be, that the mother shall stay here. Does this annul the gift of freedom to the children ? The Court first infers from the term “ occupy,” which is applied solely to the mother, that she is to remain ; and then, because she is to remain, it is inferred that all are to remain, although it is expressly declared that they shall remove, and although by this remotely drawn inference, they are to lose the gift, first of all things intended by the testator, and dearest of all things to the donees?

Can any one pronounce that the testator has as plainly spoken in the codicil that these children shall remain, as by the will he has declared that they shall remove ? A shade even of doubt on this question will reverse the opinion. It is urged that the word “occupy” has a popular signification, and for the most part implies personal residence. Be it so. The books are full of cases where the law, in its indulgence to ignorance, has resorted to the vulgar meaning of a word to sustain the wills of men ; but I never knew one case, where it destroyed a will, by denying to a legal term its legal meaning.

These inferences, drawn from and piled on each other, are opposed by every rule admitted in the interpretation of wills.

By the rule, which declares, that the oifice of a codicil is to add to and not to annul a will: — to explain what may be vague, and not to cloud what is clear.

By the rule, that a codicil is to be construed, with the will, and not in opposition to it, so that both may stand in all their parts, if possible.

By the rule, that, when the inconsistency is unavoidable, the codicil shall affect the will as little as possible, both as to property and persons.

By the rule, .illustrated by many and all the decisions of this Court on the subject, that every presumption shall be made in favor of the claim to liberty, even of him who has once been a slave.

If a testator directs all his slaves to be emancipated, and a sale of some of them is needed to pay debts, the Court does not annul the act of emancipation ; but withdraws, by lot, from the boon of freedom, only so many as are necessary. If a testator, by a codicil withdraws one, directly and expressly, it is but fair to conclude that he intends to continue the boon to the others. But if he withdraws one by construction, or by the use of an unfortunate word, intended, indeed, to add bounty to freedom, th e case before us decides, that all the others must follow the fate of him who loses his freedom, by the mode of enjoying his property.

J. II. Bryan and Miller, contra.

Battle, J.

This is a petition to rehear a decretal order made in this cause, at the December Term, 1851, of this Court. The parts of the decree complained of, are those wherein the Court declares, “ that, the codicil to the will of 1831, set forth in the “ pleadings, and exhibited in the cause, operated so as to revoke “such of the provisions of the will providing for the emancipa-ron of the slaves, as might have been lawfully carried into ex- “ ecution, inasmuch as it provided for their residence in this State, “ in a condition and state contrary to our laws and policy ; and “ thereupon adjudges that the negines Patsy, Harriet, Freeman “and William Henry Morris, were still slaves, and belonged to “ the estate of said testator, and with their increase, if any, were “to be accounted for by the defendants as executors:” And wherein the Court further declares, “ that the said bequests for “the emancipation of the said slaves being .void, they belonged “ to the plaintiffs, who are the next of kin ; and that the devises “ and bequests of property of every kind, both real and personal, “ in said will to said slaves, or in trust for their benefit, were void: “ and resulted to the said heirs at law and next of kin of said tes-cc tator, and that the same; with the profits and interest accrued <c and accruing thereon, were to be accounted for by these de- “ fendants, as trustees, to and With the said plaintiffs.”

The questions raised upon the petition to rehear have been elaborately argued before us by the counsel on both sides. We have given to the arguments a full and mature consideration, but yet without being able to discover in the decretal order any error of which the petitioners have a right to complain. A will is an instrument by which a person makes a disposition of his property, to take effect after his decease ; and which is, in its own nature, ambulatory and revocable during his life. Jarman on Wills, 11. A codicil is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as a part of, a testament— being for its explanation, or alteration, or to make some addition to, or substraction from, the former disposition of the testator. 2 Black. Com. 500 ; Williams onEx’rs. 8. In the construction of wills, the leading and controlling object is to ascertain the intention of the testator ; and in order to accomplish this purpose, technicalities may be disregarded, and irregularities of form overlooked, The same rule applies to a codicil, so far as the- construction is confined to itself; but so far as it affects the will to ivhich it is a supplement, the rule is, that it may vary, by adding to, or taking from the will, but it is not wholly to supplant it. Jarman on Wills, 160. In the construction of wills, it is said too, that there is a difference between inconsistent provisions when found in the body of the will itself, and when found in the will and codicil, arising from the fact that in the former case, both provisions have operation from one and the same act of publication, while in the case of the will and codicil, the. provisions contained in the codicil necessarily modify or revoke those inserted in the will. But it is contended for the petitioners, that here the will and codicil were proved as a will only ; that the decision of the probate Court is conclusive, as to that fact upon the Court, of construction ; and that, therefore, they arc to be construed as one instrument. However this may be in England, or in other cases in this State, as to which we do not determine, we do not see how we can, in this" case, overlook the fact that the testator himself calls the second instrument a codicil,; the bill states it to be a codicil, and the defendants in their answer admit that it is so. But, notwithstanding this, we agree with the counsel that the plain intent, apparent in the will, that the slaves should be sent abroad to be emancipated, ought not to be defeated by any doubtful intent, that they should reside in this State, to be extracted from the codicil. We agree with him further, that where two intents appear in the same instrument, one lawful and the other unlawful, the former is to be adopted. But we cannot apply the rule to a case, where the intention, if a plain one, is contained in an instrument whose office it is to vary a former one. We agree still further with the counsel, that a testator is to be presumed to know the law of the country ; but we cannot say that, if so knowing it, he manifestly attempts to evade-it, his unlawful attempt is to be overlooked, for the purpose of carrying out a previously expressed lawful intention. Such a rule would have saved the Court from the disagreeable necessity of deciding the cases of Haywood v. Craven, 2 Car. Law Repos. 557, Pendleton v. Blount, 1 Dev. & Bat. Eq. 491, Lemmonds v. Peoples, 6 Ire. Eq. Rep. 137, and Sorrey v. Bright, 1 Dev. & Bat. Eq. Rep. 113: all which were attempts to set slaves free, in evasion of the settled policy and laws of the State.

With these admissions, we proceed to the inquiry whether the codicil, in the case under consideration, discloses a clear, plain, unmistakable .intention of the testator, that his slaves should, notwithstanding his declared purpose to emancipate them, continue to reside in this State. The counsel for the petitioners contends that he does not; that the only term used by him, which creates any difficulty, is the word u occupy,” and that that word does not necessarily mean what is technically called a possessio pedis. We think the counsel has succeeded in showing, that it is barely possible the testator might' have intended the slaves to reside abroad, while enjoying the benefit of the property devised and bequeathed to them. He certainly hás not succeeded beyond showing such a possibility. But we do not consider that to be the rule for ascertaining a testator’s intentions. Ordinary words found in a will are to be taken in their ordinary acceptation. Technical terms are to be understood in their technical sense, unless the context shows that the testator os.ed them in a different sense. Here the testator gives a certain piece of ground, with the improvements, in the town of Newbern, his household and kitchen furniture, and his cow and calf, and ten shares of stock in the Merchants’ Bank of Newbern, to the petitioners, to be held in trust “ to permit his woman Patsy to use, occupy and enjoy the “ said piece of ground and said furniture, and cow and calf, and “ to have the dividends of the said Bank Stock, during the natu-í£ ral life of the said Patsy,” &c. He then directs certain other lots to be sold by his executors, and of the proceeds of the sale, lie bequeathed to William Henry Morris, a son of Harriet, and grandson of Patsy, one thousand dollars. We ask seriously, whether one man out of a hundred would suppose that Patsy, a woman, was intended by the testator to reside in Pennsylvania, or any of the other free States, and yet “ use, occupy and enjoy a !£ house and lot, household and kitchen furniture, and a cow and “ calf, situated in the town of Newbern in this State.” We answer confidently, that he would not. Nor will it help the construction, to say that the trustees were bound to sell the cow and calf, for the reason that they were given to Patsy for life only, with remainder over to her children. We cannot presume that the testator intended a sale ; because, if so, we cannot see why he did not expressly direct it, as he did with regard to the lots out of which William Henry Morris’s legacy was to be paid, and as he did with regard to all his estate in his will. We are bound, therefore, to declare our opinion to be, that the testator intended Patsy to reside in the town of Newbern, and there to occupy tjie house and lot, and use and enjoy the furniture, and the cow and calf.

But the counsel for the petitioners contends that, supposing this to be the proper construction with regard to Patsy, it does not apply to her children, Harriet and Freeman, and her grandchild William Henry Morris.

If the clauses in the codicil, relating to the children, had been separate and distinct from those which apply to their mother, we might perhaps be justified in putting a construction upon it more favorable to them. We admit that the terms employed by the testator do not so necessarily imply a residence in this State, as in the case of the mother. But neither the will nor codicil any where shows an intention that they should be separated from their mother, and we think, that as the testator has evinced a disposition to evade the law of the State in relation to her, there ought something to appear in the codicil, that he wished their fate to be different from hers. In the absence of any such intention disclosed by either instrument, we feel bound to hold that the testator meant that the children should reside with their mother, in the town of Newbem. That being so, the result is, that the bequest for emancipation has failed, and the slaves mentioned in the pleadings, together with the property devised and bequeathed in trust for them, belong to the heirs at law and next of kin, and the petitioners must account for them accordingly.

We must declare that there is no error in the decretal order in the matters alleged, and the petition must be dismissed with costs.

Per Curiam. Petition dismissed,