The bill was filed by the executors of the last will and testament of Joseph Woods, Sen'r., asking the advice and direction of the (421) Court upon certain questions growing out of said will. The following are the provisions upon which the questions arise, viz:

"Item 1. I give and bequeath to my son Hugh Woods, one negro woman named Pleasant, and one negro boy named Haywood; also, one bed and furniture, and a negro girl named Kizza, or the proceeds of the said girl Kizza, if I sell her before my death.

"Item 2. I give and bequeath to my son Sames Woods, one tract of land, whereon he now lives, containing two hundred and two acres, more or less, and two girls by the name of Amelia and Betsey. Farthermore, I give to his son Lambert Woods, my grand-son, the tract of land whereon I now live and reside, containing two hundred and twenty-five acres, more or less; provided the said Lambert Woods shall pay to my grand-son Eli Woods, son of John Woods, deceased, the sum of three hundred dollars.

"Item 3. I give to the heirs of my son Eli Woods, dec'd., the tract of land whereon he lived and died, (describing it.) I also give to my son Eli Woods' heirs, one negro girl by the name of Sook. The distribution of all the above named property bequeathed to the heirs of my son Eli Woods, is (to) be governed by the will of the said Eli Woods — I mean his last will and testament.

"Item 4. I give and bequeath to my son John Woods, deceased, (422) one negro man named David.

"Item 5. I give and bequeath to my daughter Mary Rhew, one negro woman named Milly, and her two children, Mary and Charles, and also one girl by the name of Dorky, and one hundred dollars in money.

"Item 6. I give and bequeath to my daughter Elizabeth Hall, now deceased, one negro woman named Mahaly, and her two children, by the name of Hally and Hannah, and one girl by the name of Harriet, and one hundred dollars in money — to her and the heirs of her body; I mean the children of the said Elizabeth Hall, deceased, which are now living. * * * * *

"Item 8. I also give and bequeath to my daughter Elizabeth Hall, deceased, or to her children now living, the heirs of her body, one negro woman named Cresid, and her three children, Harriet, Haywood, and Phillis, which negroes are to be valued and go towards the proportion of my said daughter Elizabeth, or her said children, the heirs of her body, of my estate; and if the valuation shall be more than a due proportion of my estate, then the said Elizabeth, or the said children, the heirs of her body, shall refund to the estate all that is over.

"Item 9. I also desire, that my two grand-daughters, Adeline, and Elizabeth, daughters of my son Eli Woods, deceased, shall draw one-third more of my estate than the other three children, that is, Washington, Lucy, and Susan.

"Item 10. I also desire, that all my negroes, not mentioned in my last will and testament, or otherwise disposed of, together with all my property, of every description, not herein mentioned or otherwise disposed of, shall be sold after my death, and the proceeds arising from such sale, as well as all monies coming into the hands of my executors from the collection of my debts, bonds, etc., due me, shall, after paying all my just debts, be equally divided between my above named children, with the exception of my son William Woods, and my daughter Mary Rhew. I also desire and will that that part of my estate which would be given to the said Mary Rhew, shall be (423) equally divided between her children, viz., Sarah Frances Carrington, Lambert Hall, Robert Hall, Jane Hall, Martha Hall, Alexander Hall, and William Hall, being children of my said daughter Mary, by her first husband William Hall, deceased."

Upon the first item, the facts are, that the testator placed in the possession of Hugh Woods, the legatee, two of the slaves mentioned in this clause, and afterwards, in 1854, he gave him possession of Kizza; that at his marriage, which was more than thirty years before the filing of the bill, he gave him a bed and furniture. The plaintiffs contend, that this item was only intended as a confirmation of the previous gifts, and that there is nothing coming to him by force of the same. This, Hugh Woods admits as to the negroes, but contends, as to the bed and furniture, that the legacy, being a general one, is not discharged by the reception of things of the same kind before the will was made.

Upon the second item, arises the following question: The tract of land, called the home place, contained between four and five hundred acres, and was made up of several smaller tracts; the original tract, on which testator settled, contained two hundred and twenty-five acres, and several adjacent tracts were added to it, making the quantity above stated. The whole had for many years been used and cultivated together, and was uniformly designated and called by the testator his home place or plantation; was given in, assessed, and taxed as one body of land; and parts of the original farm and of the added parts, were fenced together as entire fields. Besides these facts, there was the further fact, that there was not timber enough on the original part to keep up a farm, but there was enough on the other portion. It was contended, that the testator only intended that Lambert should have the 225 acre tract, and that the remainder should fall into the residuum; while he (L.) insisted, that on paying the three hundred dollars, the whole body of land, known as the home tract, passed to him by the devise aforesaid.

(424) Upon the third item, arises this question: The female slave Sook had issue, a female child, born in the life-time of the testator, and it is contended on behalf of the residuary legatees, that Sook only being mentioned in the will, and no reference being made to her offspring, or increase, the child of Sook did not pass by the bequest. David McKee answered, and showed the following as the grounds of his claim to the slave in question: Sook, the mother, had been in possession of Eli Woods for many years before the death of the testator, claimed as his slave. In 1840, he made his will, and bequeathed the woman Sook to his (said David's) wife, Lucy Ann, and shortly thereafter, with the assent of the executor of the said Eli, he took possession of the slave in question, and has held her ever since, adversely to all other claimants. Some three years after thus acquiring Sook, she gave birth to the child now in controversy. In behalf of the said David McKee, it is contended, that the will of Joseph Woods, which was made in 1851, expressly ratified that of Eli Woods, which was made in 1840, so that the property passed to him and his wife, Lucy Ann, by virtue of that will; and further that claiming and holding the property three years, under the will of Eli Woods, gave him a full and absolute right to it by the statute of limitations.

As to the fourth item, it was contended that, the legatee being dead at the time of the making of the will, the bequest is void. In reply thereto, it is shown that, many years before the death of John Woods, Dave had been given to him by the testator by parol; that he had sold him with the approbation of the testator and received the money for him; and it was insisted, that this clause was a mere ratification of such previous gift, and therefore, valid to pass the right to the representatives of the said John.

As to item fifth: The negroes given therein to Mary Rhew, had been put into the possession of her first husband, William H. Hall, more than twenty years before the filing of the bill, and at his death, about five years afterwards, were distributed between his widow and children as part of his personal estate. Mary Rhew, who is again a widow, insists that she is entitled, not only to the one hundred dollars, (425) but also to the slaves therein bequeathed to her; and that it is the duty of the plaintiffs, as executors, to sue for the same and recover them for her. On the part of the children, it is contended, that by the 10th item of the will, all that she might have been entitled to, of her father's estate, was given to them, and that this provision extends as well to the pecuniary bequests, (to wit, the $100, and a share of the residuum) as to the slaves. She had no children by her second marriage.

Upon the sixth and eighth items of the will, various questions arise between the parties: John R. Hall, the husband of Elizabeth, under a parol gift, took possession of the slaves bequeathed in the sixth item, carried them to the State of Mississippi, more than twenty years ago, where they have been ever since. It is contended by some of the legatees, that these bequests to Elizabeth Hall are void, she being dead at the time of the making of the will, and that the value of the slaves given her, and the $100, should go into the residuum.

It is contended further, by the legatees, that the negroes mentioned in the 8th item do not pass, because they are given only in the alternative; but if the legacy is valid, that the value of these slaves ought not to be added to the general residuum, but that that should be made up without such addition, and that the children of Elizabeth Hall were intended to have these negroes in satisfaction of their part of that residuum.

Upon the ninth item, the five children of Eli Woods contend that they are entitled, altogether, to one share of the residuum, and that Adeline, and Elizabeth, are each entitled to one-third more than the entire share; while it is insisted by the other residuary legatees, that the children of Eli Woods, are not entitled to any part of the residuum; but if they are entitled, it is only to one share among them all.

The questions arising out of the 10th item are already stated incidentally. They are succinctly embraced in an enquiry, to whom does this residuum belong? and in what proportions? and whether (426) its distribution is to be per stirpes or per capita?

As to what that residuum shall consist of, various questions have already been propounded in stating the controversies about the several distinctive bequests in the will.

All the parties interested in the will, and the representatives of the dec'd. legatees, are made defendants, viz., Hugh Woods, Lambert Woods, Mary Rhew, the children of Mary Rhew by her first husband, William Hall, the children of Elizabeth Hall, the children of John Woods, the heirs and children of Eli Woods, and the executor of David McKee; who answered severally.

There was replication to the answers.

The cause was set down for hearing on the bill, answers and exhibit, and sent to this Court.

BATTLE, J.

Many questions are presented by the pleadings upon the construction of the will which is now before us. It was evidently written without the assistance of counsel, and needs all the aid which can be derived from that circumstance, to enable us to give effect to the wishes of the testator. It affords evidence of itself, that it is the will of an old man, whose numerous children had all grown up, most of them had married and had issue, and several of them had died, leaving families of children. It appears, from the admitted allegations of the bill, that most of the slaves, and some of the property bequeathed and devised to the legatees and devisees respectively, had been advanced to them, by the testator, many years before the will was made. We mention these things, because we have the right to look to the testator's family and the condition of his property at the time when his will was written, in order to fix a construction upon it. See Bivens v. Phifer, 47 N.C. 436, and the cases there referred to.

Having premised these general rules, we proceed to answer (427) the questions in the order in which they are presented in the bill.

1. The first question presented for our consideration is, whether Hugh Woods is entitled to a bed and furniture, under the first item of the will. The bequest to him is of certain slaves by name, "also one bed and furniture, and a negro girl by the name of Kizza," etc. He admits that he received the slaves, and also a bed and furniture, as gifts from his father, long before the making of the will, and he sets up no claim for the slaves under the bequest, but insists that he is entitled to another bed and furniture, because the legacy is a general one, and therefore, not discharged by the reception of an article of the same kind long before.

For the reason assigned for the claim, we think it must be allowed.

2. The cases referred to by the counsel of Lambert Woods, show clearly, that he is entitled to the tract of land on which the testator "lived and resided" at the time of his death. It consisted of several distinct parcels, and was occupied and cultivated by the devisor as one plantation. Bradshaw v. Ellis, 22 N.C. 20; Bolick v. Bolick, 23 N.C. 244; Stowe v. Davis, 32 N.C. 431.

3. There can be no doubt that David McKee is, in right of his wife, entitled to the child of Sook, born in the testator's life-time. The general rule is such as is contended by those who oppose the claim of the legatee; but there are two circumstances which prevent its application in the present instance. The testator had made a parol gift of Sook, to his son Eli, many years before, who, upon the marriage of his daughter Lucy with David McKee, made a similar gift of the girl to her. Eli Woods died, and by his will confirmed the gift, and David McKee kept the girl claiming her as his own for more than three years before the testator's death. His will also refers to, and confirms, that of his son Eli; hence, it follows that the child of Sook, which was born after

Eli's death, was the property of the legatee under his father's will, as well as under his will. Moreover, the bailment of the (428) slave was terminated by the death of Eli, and the possession of her by the legatee, for more than three years, gave him a title to her, and all her increase born during such possession. Powell v. Powell, 21 N.C. 379; Richardson v. Pridgen, 43 N.C. 153.

4. The bequest in the fourth item, of negro David to John Woods, deceased, would be void, were we not at liberty to construe it as a confirmation of the parol gift made by the testator to his son John, in John's life-time. Such was undoubtedly the intention of the testator in many of the bequests made to his living children, and we cannot see any reason why it may not be carried into effect in this, as well as in the other instances.

5. Mary Rhew is entitled, under the bequest in the fifth item, to the general legacy of one hundred dollars. The specific bequest of the slaves was a mere confirmation of previous parol gifts.

6. Mary Rhew is expressly excluded from any share in the residue given in the 10th item of the will, and the part to which, as one of the children, she might have been otherwise entitled, is expressly given by the testator to her children by her first husband, William Hall. It seems there was no issue of her last marriage.

7. The slaves bequeathed in the sixth item, to Elizabeth Hall, deceased to her and the heirs of her body, were advanced to her and her husband many years before, and the bequest is operative, so far only as to confirm such gifts. As the testator himself explains that, by heirs of her body, he meant her children now living, and mentioned her as being dead, his intention is clear to give the children what she would have taken if alive; and in that view, they have a right to the general legacy of one hundred dollars given in that item.

8. The children of Elizabeth Hall are also entitled to the slaves mentioned in the eighth item. The testator having noticed that their mother was dead, it is manifest, that he intended the children to take in her stead; and as the bequest is in the alternative, to her or them, there (429) is nothing to prevent them from taking it. They are also entitled to a share of the residue, unless the slaves given to them by this item, shall equal, or exceed in value their proportion of the testators "estate." If there be an excess of value they are to refund it. By his estate, the testator here means, what he had not otherwise disposed of by his will, and left to fall into the residuum. Nearly all the slaves given by the will, were mere confirmations of previous parol gifts, and of them, he did not wish any account to be rendered. Some other devises and bequests are made, which are not required to be valued, and of which, we therefore concluded, that he did not wish any account to be taken in the division of the residue. But the slaves bequeathed in this item, are required expressly to be valued, and that value is directed to be accounted for in the division of the residue. That value then must be added to the value of the residue, in order to ascertain the proportions to which Elizabeth Hall's children are entitled. The construction contended for by the other legatees, that the amount of the residuum is to be ascertained without these slaves, and then, that the children of Elizabeth Hall are to take the slaves in payment of their share of the residuum, is altogether inadmissible, because it would defeat that equality in the division of his "estate," indicated in the eighth item of his will.

9. The preference given by the ninth item to the testator's granddaughters, Adeline and Elizabeth Woods, in the distribution of the residue is, by an obvious construction, confined to the division between them and their brothers and sisters, of the share to which they all may be entitled. This view is made clear by the intention apparent from the latter part of the eighth and the tenth items, to have an equal division of the residuary estate between the testator's living, and the families of his deceased, children.

10. From what we have already said, it will appear that our opinion is, that the residuum, including the value of the slaves given specifically to Elizabeth Hall's children, is to be equally divided per stirpes between the testator's living children and the children of his deceased children, excluding therefrom his own son, William (430) Woods, and his daughter Mary Rhew, but putting the children of the latter as legatees in her place, to take among them one share.

There must be a reference for the purpose of taking the necessary accounts, with a view to the distribution of the testator's estate according to the principles announced in this opinion.

Per curiam:

Declare accordingly.

Cited: Young v. Young, 56 N.C. 220; Williamson v. Williamson, 57 N.C. 285; Fairbault v. Taylor, 58 N.C. 221; Jones v. Robinson, 78 N.C. 401; Grimes v. Bryan, 149 N.C. 250; Austin v. Austin, 160 N.C. 369; Trust Co. v. Wolfe, 243 N.C. 473.