James Mateer made his will on 4 April, 1844, and appointed his son, Andrew and John, his executor. At that time, and at the time of his death, which happened in May, 1845, the testator had three children, namely, the two sons above mentioned and a daughter named Margaret, then the wife of Joseph D. Watson. He had also a grandson, James M. Donnell, one of the plaintiffs, who was the only child of the testator's deceased daughter, Polly, by her husband, Joseph Donnell. This grandson and the three children were the testator's next of kin.

The will contains the following dispositions, amongst others: (8)

"I give to my daughter Margaret one negro boy, Harvey (and five others by name), to wait and serve her lifetime, and after her death, to her bodily heirs. Also, I leave $300 in the hands of my executors to pay out to her as they see that she needs, if my estate will afford it. Item: I give to my son-in-law, Joseph Donnell, $25 as a memorial."

By other clauses the testator gave to his grandson, James M. Donnell, five negroes specifically, and the sum of $75; and to each of his two sons he gave land and personal legacies. He also gave legacies to his wife, and to several of the children of each of his two sons, and of his daughter Margaret. The testator's wife died before him, as also did Joseph Donnell, and some of the grandchildren, to whom legacies were given.

The will has no residuary clause, and there are several slaves and other personal property undisposed of, besides the legacies lapsed by the deaths of legatees before that of the testator.

The testator in his lifetime gave and conveyed to his two sons the land devised to them respectively.

Shortly after the death of her father, Mrs. Watson also died, leaving an only child, John H. C. Watson, and her husband, surviving; and the husband took administration of her estate.

The bill is filed by Joseph D. Watson as administrator of his late wife, and James M. Donnell, the grandson, against the executors and devisees, Andrew and John Mateer, and against John H. C. Watson; and it prays that the plaintiff Watson may be declared entitled to the six slaves and the $300 left to his intestate, and for the delivery and payment thereof to him; and that the plaintiff Donnell may have a decree for the legacies to him, and also for that of $25 to his father, which he claims, as representing his father. It prays also for (9) an account and distribution of the residue of the personal estate.

RUFFIN, C. J.

The pleadings raise several questions, but there seems to be no difficulty in either of them.

That which is of most consequence to the parties respects the disposition of the six slaves to Mrs. Watson. It is a gift to her for life, and then "to her bodily heirs." That has been so often and so recently decided to pass the whole property to the first taker as to leave now no question at all upon it. In Allen v. Pass, 20 N.C. 207, there was enough in the will to enable the Court to see that the testator meant "heirs of the body" for "children," and we gladly availed ourselves of that circumstance to uphold the disposition and intention of the testator. But there is nothing in the context here to control the technical meaning of the term "bodily heirs," and therefore we are obliged to receive them in that sense, as meaning the class of persons who, by law, take property by inheritance or succession from another. Thus understood, they are not words of purchase, but of limitation, in disposition of this kinds as well as in conveyances of land. The authorities were all consulted in Ham v. Ham 21 N.C. 598; and in Floyd v. Thompson, 20 N.C. 616, the doctrine was reaffirmed, and the reasons given why the courts cannot receive such words in any other sense. There have been several other cases to the same effect, and one of them as late as last term, that of Coon v. Rice, 29 N.C. 217. It must, therefore, be declared that these slaves belong to the plaintiff Watson, as administrator of his late wife, and not to their son.

The next question respects the sum of $300, left in the hands (10) of the executors for Mrs. Watson. The executors contend that it was not an absolute gift to her, but was intended for her personal comfort, if requisite for that purpose, in the opinion of the executors, and that, as she lived, but a few days longer than her father, and had no need of any of the money, it sunk into the residuum. But we all think that the condition annexed to this gift is that it must be raised without interfering with any other disposition in the will. It is admitted that may be done, as there is a considerable residue undisposed of after answering all other purposes. This, then, becomes a gift at all events. The testator intended, perhaps, to intrust the executors with a vague sort of discretion as to the time of payment, but not with the discretion of withholding the payment altogether. The daughter had an absolute right to demand the whole sum, at some time; and therefore it is a vested and transmissible legacy, and belongs to the administrator.

The plaintiff Donnell claims that the small legacy of $25 to his father did not lapse by the death of the father, but survived to him by the act of 1816, and the answer of the executors yields that the claim is well founded. But that is a mistake; though being in a matter of law merely, it will not hurt. The act has within its purview a testamentary gift to a child only. Rev. St., ch. 122, sec. 15. Neither its words nor spirit take in a son-in-law or daughter-in-law. The reason why the estate given to a child shall, upon the death of the donee in the life of the testator, go to the issue of such child, is that the issue of the child is necessarily the issue of the testator, and the Legislature presumed an intention, or, rather, a wish of the testator that the issue should stand in the place of the original donee, rather than the gift should fail altogether and that branch of the testator's family be without a provision. But that cannot apply to a gift to a son-in-law, since that would let in issue by another marriage, strangers to the testator, to whom it cannot be supposed he would intend a bounty. This (11) sum, therefore, is part of the residue.

Finally, the plaintiffs contended that in the division of the residue of the personal estate the gifts during the testator's life, and by his will, of realty and personalty must be brought in. But the contrary is most firmly settled, as law. There is no hotchpotch upon a partial intestacy. Norwood v. Branch, 4 N.C. 400, went only the length of saying that upon the particular language of our statutes there was a distinction between advancements of realty and personalty, and that devises of land must be brought into the division of the undisposed of land. But with respect to a personal residue, it has been always held that it is to be divided equally amongst the next of kin, without regard to gifts, either in the lifetime of the testator or by his will; and, indeed, it has been recently held that the law is the same as to land not disposed of by the will. Cowper v. Scott, Pr. Wm., 119; Edwards v. Freeman, 2 Pr. Wm., 440; Watson v. Watson, 14 Ves., 318; Johnson v. Johnson, 39 N.C. 9.

PER CURIAM. Decreed accordingly.

Cited: Worrell v. Vinson, 50 N.C. 94; McMichael v. Hunt, 83 N.C. 347; Leathers v. Gray, 101 N.C. 166; Marsh v. Griffin, 136 N.C. 335; Wool v. Fleetwood, ib., 469; Perry v. Hackney, 142 N.C. 374.

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