Safeold, 3.
Thomas B. Whitmell, in the State of North Carolina, made his will on the 26th of February, 1798, and died on the 20th September next, thereafter. He devised, inter alia, six negroes, which (with their increase and hire) are the subject of this controversy, to his daughter, Elizabeth, for her natural life, and after her death, to her children, if she should have any, and if not, then over to his four other children — to wit, Ann Smith Whitmell (now Ann S. Bell, the complainant’s wife,) Thomas Whit-mell, Drew S. Whitmell and Thomas S. Whitmell. The negroes having gone into the possession of Hogan, in the manner herein after stated, the bill was filed by Bell and wife, for their recovery, and the value of their hire, from the death of Elizabeth, the legatee for life.
[304]*304The material facia, disclosed by the bill, are, that after the making of the will, and before the te,stator’s death, to wit, in May, of the same year, Elizabeth married one David L; during the coverture they received possession of the negroes, and afterwards, in the life-time of David L, one of the executory legatees, Thomas W. Whitmell died intestate, an infant, and without issue; afterwards David L died; during his life, however, two of the said executory legatee.?, Thomas Whitmell, and Drew S. Whitmell, conveyed, by grant and release, all their said execu-tory interest, to their sister Elizabeth. After the death of David L, and during the widowhood of Elizabeth, Drew fi. Whitmell died, intestate, and without wife or children. After the death of said Drew S. Whitmell, the saw! Elizabeth David L intermarried with the defendant below, Arthur A Hogan.— And at a still later period Thomas Whitmell died intestate, and without wife or children; and afterwards, on the 26th August, 1824, the said Elizabeth, wife of the defendant, Hogan, died without leaving any child, hut leaving Ann S. Bell, the only surviving descendant of the testator, Thomas B. Whitmell — who, with her husband, are administratrix and administrator of Thomas W. Whitnell, and of said Elizabeth Hogan..
The answer of Hogan, as original defendant, resists the recovery, and relics for his defence, upon two distinct grounds: first, a gift from the testator to David L, and his wife, in his life-time; secondly, on the will of Thomas B. Whitmell — the release from Thomas and Drew S. Whitmell, and the will of David L,
[305]*305The only fact in controversy between the parties was, whether the elder Whitmell, in'his life-time, made an absolute parol gift and delivery of the ne-groes in question, to David L, and his wife; or were they received on the terms expressed in the will? — On this point a large mass of testimony was taken by each party.
The Circuit Court decreed, for the complainants, the negroes in controversy, and four thousand five hundred and seventy eight dollars, the value of their hire, since the death of Mrs. Hogan.
Hogan, having prosecuted this writ of error, assigns, as causes — that the Court decreed for the complainants, as stated, when their bill should have been dismissed. That there was error, in not giving effect to the deed of release, or conveyance of Thomas and Drew S. Whitnell; and in allowing damages for the detention of the negroes.
The whole merits of the case may be sufficiently investigated, by an examination of the two questions, first, was there any parol gift, legally consummated? Secondly, what was the legal effect of the will, as between these parties.
The first question must he governed by the strength of the evidence. The testimony on either side, considered apart from that oppsed to it, would afford reasonable certainty in favor of the party for whom it was introduced; but when compared, it is difficult to he reconciled. Much of the discrepancy has probably arisen from the great lapse of time, thirty years and more, since the happening of the events, concerning which the witnesses have deposed.
[306]*306So much as relates to the nature of the gift, is, doubtless, attributable, in a still greater degree, to the kindred nature of the facts, which each party has endeavored to prove, that is, whether the gift was absolute or for life only.
Had the question been, whether the original gift was to David L, and his wife, or to Ann S. or any other, less uncertainty or doubt could have arisen in relation to the same acts or expressions. The expression, in the will, that the testator lent the ne-groes to his daughter, Elizabeth, during her natural life, implies nothing less than that he had given them for the same term, and the latter would have been the most appropriate language. The former must have been used from a motive of extreme caution, that a larger interest should, by no possibility be implied. Yet, admitting that the testator’s intentiQns were always the same, as respected the nature and duration of the gift, it could not be presumed, that he would, in all his subsequent conversations on the subject, have observed the same caution.
It was only When he undertook to explain his will,, or to define the limitations of any legacy contained in it, that this particularity could have been expected.
The presumption is conceived to be fully authoris-ed, that Elizabeth and and David L, knew that the will had been written, and were well acquainted with the nature of the legacy to her, before they received the negroes: the fact may also be safely assumed, that Hogan was in possession of the same information, at the time of his marriage: he, at least, had all the necessary means of acquiring it. The [307]*307denial, contained in his answer, of a full knowledge of the facts and circumstances, is too vague to be received as an express denial of the fact.
The most dubious point in the evidence, relates to the question, whether David L and wife, had received the negroes, and settled off to themselves, before the death of the old man, Whitmell; or, was this done afterwards 1
Many witnesses, on either side, and who are presumed credible, have deposed, with great confidence, in opposition to each other, respecting this fact. But, when it is recollected, that the house built by David L, and occupied by himself and wife, was only about one mile from the residence of his father-in-law, it may be reasonably conjectured, that these ne-groes, or others — probably some of each — were employed at different intervals, at each of the places.—
The period in question was from May, when the marriage took place, until September, when the death occurred. This was a season of the year, during which a crop could not have been commenced — the time while the building was going on; and it may well be inferred, that the same parcel of negroes, may have worked on the buildings, at different intervals, when they could best be spared from the crop. This is the only suppsition on which the conflicting evidence can be reconciled.
Much of the testimony on another point, in relation to which, the witnesses are in apparent conflict, may be reconciled on a similar principle. I allude to the declarations of the testator.
That he was often heard to speak of this gift to his daughter, is fully evident. Some understood him [308]*308to say, in general terms,'he had given the negroes to her — others, that he had given them to her for life, only.
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Safeold, 3.
Thomas B. Whitmell, in the State of North Carolina, made his will on the 26th of February, 1798, and died on the 20th September next, thereafter. He devised, inter alia, six negroes, which (with their increase and hire) are the subject of this controversy, to his daughter, Elizabeth, for her natural life, and after her death, to her children, if she should have any, and if not, then over to his four other children — to wit, Ann Smith Whitmell (now Ann S. Bell, the complainant’s wife,) Thomas Whit-mell, Drew S. Whitmell and Thomas S. Whitmell. The negroes having gone into the possession of Hogan, in the manner herein after stated, the bill was filed by Bell and wife, for their recovery, and the value of their hire, from the death of Elizabeth, the legatee for life.
[304]*304The material facia, disclosed by the bill, are, that after the making of the will, and before the te,stator’s death, to wit, in May, of the same year, Elizabeth married one David L; during the coverture they received possession of the negroes, and afterwards, in the life-time of David L, one of the executory legatees, Thomas W. Whitmell died intestate, an infant, and without issue; afterwards David L died; during his life, however, two of the said executory legatee.?, Thomas Whitmell, and Drew S. Whitmell, conveyed, by grant and release, all their said execu-tory interest, to their sister Elizabeth. After the death of David L, and during the widowhood of Elizabeth, Drew fi. Whitmell died, intestate, and without wife or children. After the death of said Drew S. Whitmell, the saw! Elizabeth David L intermarried with the defendant below, Arthur A Hogan.— And at a still later period Thomas Whitmell died intestate, and without wife or children; and afterwards, on the 26th August, 1824, the said Elizabeth, wife of the defendant, Hogan, died without leaving any child, hut leaving Ann S. Bell, the only surviving descendant of the testator, Thomas B. Whitmell — who, with her husband, are administratrix and administrator of Thomas W. Whitnell, and of said Elizabeth Hogan..
The answer of Hogan, as original defendant, resists the recovery, and relics for his defence, upon two distinct grounds: first, a gift from the testator to David L, and his wife, in his life-time; secondly, on the will of Thomas B. Whitmell — the release from Thomas and Drew S. Whitmell, and the will of David L,
[305]*305The only fact in controversy between the parties was, whether the elder Whitmell, in'his life-time, made an absolute parol gift and delivery of the ne-groes in question, to David L, and his wife; or were they received on the terms expressed in the will? — On this point a large mass of testimony was taken by each party.
The Circuit Court decreed, for the complainants, the negroes in controversy, and four thousand five hundred and seventy eight dollars, the value of their hire, since the death of Mrs. Hogan.
Hogan, having prosecuted this writ of error, assigns, as causes — that the Court decreed for the complainants, as stated, when their bill should have been dismissed. That there was error, in not giving effect to the deed of release, or conveyance of Thomas and Drew S. Whitnell; and in allowing damages for the detention of the negroes.
The whole merits of the case may be sufficiently investigated, by an examination of the two questions, first, was there any parol gift, legally consummated? Secondly, what was the legal effect of the will, as between these parties.
The first question must he governed by the strength of the evidence. The testimony on either side, considered apart from that oppsed to it, would afford reasonable certainty in favor of the party for whom it was introduced; but when compared, it is difficult to he reconciled. Much of the discrepancy has probably arisen from the great lapse of time, thirty years and more, since the happening of the events, concerning which the witnesses have deposed.
[306]*306So much as relates to the nature of the gift, is, doubtless, attributable, in a still greater degree, to the kindred nature of the facts, which each party has endeavored to prove, that is, whether the gift was absolute or for life only.
Had the question been, whether the original gift was to David L, and his wife, or to Ann S. or any other, less uncertainty or doubt could have arisen in relation to the same acts or expressions. The expression, in the will, that the testator lent the ne-groes to his daughter, Elizabeth, during her natural life, implies nothing less than that he had given them for the same term, and the latter would have been the most appropriate language. The former must have been used from a motive of extreme caution, that a larger interest should, by no possibility be implied. Yet, admitting that the testator’s intentiQns were always the same, as respected the nature and duration of the gift, it could not be presumed, that he would, in all his subsequent conversations on the subject, have observed the same caution.
It was only When he undertook to explain his will,, or to define the limitations of any legacy contained in it, that this particularity could have been expected.
The presumption is conceived to be fully authoris-ed, that Elizabeth and and David L, knew that the will had been written, and were well acquainted with the nature of the legacy to her, before they received the negroes: the fact may also be safely assumed, that Hogan was in possession of the same information, at the time of his marriage: he, at least, had all the necessary means of acquiring it. The [307]*307denial, contained in his answer, of a full knowledge of the facts and circumstances, is too vague to be received as an express denial of the fact.
The most dubious point in the evidence, relates to the question, whether David L and wife, had received the negroes, and settled off to themselves, before the death of the old man, Whitmell; or, was this done afterwards 1
Many witnesses, on either side, and who are presumed credible, have deposed, with great confidence, in opposition to each other, respecting this fact. But, when it is recollected, that the house built by David L, and occupied by himself and wife, was only about one mile from the residence of his father-in-law, it may be reasonably conjectured, that these ne-groes, or others — probably some of each — were employed at different intervals, at each of the places.—
The period in question was from May, when the marriage took place, until September, when the death occurred. This was a season of the year, during which a crop could not have been commenced — the time while the building was going on; and it may well be inferred, that the same parcel of negroes, may have worked on the buildings, at different intervals, when they could best be spared from the crop. This is the only suppsition on which the conflicting evidence can be reconciled.
Much of the testimony on another point, in relation to which, the witnesses are in apparent conflict, may be reconciled on a similar principle. I allude to the declarations of the testator.
That he was often heard to speak of this gift to his daughter, is fully evident. Some understood him [308]*308to say, in general terms,'he had given the negroes to her — others, that he had given them to her for life, only. The very natural presumption, that he may, on some occasions have defined the limitations of the gift, and at other times omitted it, would remove all the difficulty on this point.
These considerations, connected with the giving and acceptiag the release from her -two brothers, to Elizabeth; and the well established fact, that she and her first husband often admitted that they held the life interest only, warrant the conclusion, that the limitation expressed in the will, was intended by the old man, and that they so understood it, when they received the negroes ; or, if such was not their impressions, a doubt can scarcely exist, but that, af-. ter the death of the father, they acquiesced in the limitation, and admitted that their title was subject to it for many years, and never asserted the contrary during their lives.
Then, conceding the principle contended for in the .argument, and heretofore recognised by this Court, that, whenever, on the marriage of a daughter, the father sends a portion of his property, or permits it to go into the possession of his son-in-law, and to be held and used for a time, by the married couple, as. their own — the father having spoken of it, as a gift, the law implies a transfer of the right, and vests the title in the son-in-law, in consideration of the marriage ; also that the subsequent declarations of the donor to the contrary, are inadmissible as evidence, against the right, as was ruled in High vs. Stainback;
On tlie other point, relating 30 the effect and consequences of the limitations of the will, and the events mentioned as having subsequently occurred, we have felt more difficulty. It involved much of the legal intricacy and reiinement, concerning vested and contingent remainders, and executory interests, which are of rare occurrence. In the investigation of this doctrine the comise] have evinced equal zeal, talent and depth of research: their positions and illustrations have been duly considered.
In favor of Bell and wife, it is contended, that the death of Hogan’s wife, without issue, being the only event that could vest any interest in her brothers; and as Hogan claims in right of his deceased wife, by descent from one of the brothers, and a release from the others, these rights could not be reduced into Hogan’s possession, during the coverture ; and that without such possession, he could acquire no right to his wife’s dioses in action: that, neither by the common law, or statute of this State, was he entitled to the administration of his wife’s estate; and if. he were, that right could confer no title to the dioses in action ; but he would only recover and hold them, for the benefit of her heirs at law.
On the part of Hogan, it is admitted, that his claim can only be sustained on the principle, that the contingent interest created by the' will in favor of Eli-
[310]*310■zabeth’s brothers, was extinguished and discharged by the death of one, and the release of the other two, to her, during her life-—so as to convert her limited estate, (in proportion to these interests,) into an absolute one ; that the contingent bequests were both assignable and transmissible by descent; and under these titles Hogan held that portion of the property in his own and his wife’s absolute right, which was a sufficient legal possession.
The soundness of the position, that, to consummate the husband's title to his wife’s choses in action, he must, during the coverture, have reduced them into possession, is not now to be questioned, in this Court. We so ruled in the case of Mayfield, guardian, &c. vs. Clifton, and previously in Johnson, adm'r vs Wren. see, also, Wallace et ux. vs. Taliafero et ux.a and Baker vs. Hall.b
It is not sufficient, that he should have held as guardian, executor, or other trustee or agent—he must have possessed the property, quasi husband, for himsélf and wife.
But, as respects the two shares, released by the two brothers of Elizabeth, and a portion of the interest of the other, who had previously died, was not Hogan, before the death of his wife, in actual possession, under claim of individual right 1 He surely held and used the property, under an assertion of his title in right of his wife; and, as to these portions, it may fairly be presumed, he considered them no less his own, than if so much of the original legacy had been absolute to Elizabeth, his wife.
But, could the contrary be supposed, that, in fact, he considered his interest limited to the life-time o.f [311]*311his wife, or that lie had doubts as to the law of the case; yet he held the property by an absolute or limited title, as his own,- so long as it could exist — and such would appear to have been a sufficient legal possession. There were no means, by which he could change the nature of his possession ; even as respects his wife’s right, by descent, to the parts claimed, of her deceased brother, (Drew S, Whitmell’s) interest, there was no authority, while it rested on the contingency for an administration thereon — there was nothing certain or tangible on which to operate. Hence it results that David L, in his life-time'; and afterwards Hogan, were successively in legal possession, as the sbands of Elizabeth, of the portions referred to ; provided these interests were legally transmissible by descent from the one, and assignable by the deed of the other tWo: these latter questions will be farther considered. But this contest having been previously before this Court, in a suit at law, some of the principles involved, were then sufficiently determined, to obviate the necessity of a farther investigation of them, at present. The questions then raised, related mainly to the construction of the will; and the Validity of the limitations as therein declared. We there ruled, that the contingent interests, or limitation over to the brothers and sister of Elizabeth, in the event provided for was not too remote, but was good in law; also, that an interest depending on a contingency, not in the discretion of any one, was assignable by the executory legatee in his life-time, or' if not so assigned, was descendible, on his death, to his legal representative. This decision is still believed to be sustainable on authority, and it greatly narrows the [312]*312ground of our present investigation. A slight additional reference to authorities, will serve to illustrate the doctrine.
In the case of King vs. Withers,a the testator had devised land to his son B, with condition, that if he should die without issue male of his body, then living, or which might be afterwards born, that then his daughter should receive, at her age of twentw-one or day of marriage, which should first happen, the sum of thirty-five hundred pounds; but in case the contingency of his said son’s dying should not happen before his daughter’s said age or marriage, then she should receive that sum, whenever such contingency might happen : and lie charged the legacy on his real estate. The daughter married, having attained her age of twenty-one, and died in the lifetime of her brother B., who afterwards died without issue, male. Lord Talbot decreed that the legacy should be raised for the benefit of the administrator (the husband) of the daughter; and he held, that though it did not absolutely vest, because it might never arise, yet it so far vested, as to be transmissible to the representative ; which decree was affirmed in the House of Lords. In Goodright vs. Searl,b the subject of which was strictly an executory devise, the right in controversy depended on a contingency similar to that in the former case, but was decided on a different principle. There, the Court recognised the rule, that one who claims a fee simple, by descent from one who was the first purchaser of the reversion or remainder, expectant on a freehold estate, •must make himself heir to such purchaser, at the time when the reversion or remainder falls into pos[313]*313session. This decision is believed to rest on tíié strictness of the rule referred to. In that case, the Court refused to recognise the principle contended for, that the executory fee, on the death of the exec-tory devisee, before the happening of the event which was to determine the right to it, could create a merger of the fee in the limited estate. In reviewing the case, Fearne remarks, “ how wsa it possible for it (the executory fee) to merge before it had any existence'? If it could be extinguished by merger, it must be by its union with a greater estate out of which it was to arise, and of which it might be considered as a part, or at least as an extraction. But how are two estates to unite, or one to become blended and confounded with, or absorbed in the other, when both are of equal measure, viz : both fee simples; and of which one can not commence or partake of existence at all, but in an event which destroys and annihilates the other To this application of the rule or cannon of descent, confining the inheritance to thé line of the first purchaser of lands; and to the reference of the right to the time when the reverson or remainder falls into possession, there may be no objection. Nor would I dissent from this technical doctrine of merger, in reference to real estates;' but I can not consider it decisive of the question before.us, or justly applicable to' executory bequests of personal-property.
The same learned jurist, in his several treatises on executory interests, has reviewed most of the doctrine in a very satisfactory manner. He'maintains,a that though the first taker can not destroy or disappoint [314]*314the ulterior executory interest, yet “ that a release from the person decidedly entitled to the future exec-utory interest, unto the first taker entitled to and in possession of the antecedent limited interest, will discharge that future executory interest.a Again, the same author says, “ there still remains another property of executory, devises, to he taken notice of, which belongs to them in common with contingent remainders; what I mean is, that an executory interest, whether in real or personal estate, is transmissible to the representative of the devisee, when such devisee dies before the contingency happens; and if not before disposed of, will vest in such representative when the contingency happens." Also he says, “ I have, in a former part of this treatise, observed, that contingent estates in lands of freehold or inheritance are not devisable, i. e. whilst they are contingent.— But it is otherwise in regard to contingent or execu-tory interests in terms or other personal estates. It appears indeed, that at common law, a possibility has been held not to be devisable; though a distinction in this respect, it seems, has been taken between interests in contingency, and naked possibilities.— Nor was a possibility assignable, though it might be released in certain cases; but, however, there are many determinations by the Court of Chancery, which prove, that at this day, possibilities of personal estates are devisable, as well as assignable in equity.”b
In Barnes vs. Alien,c a bequest had been made of the residue of the testator’s personal estate to his wife, for life; but if she.should die, without issue living at her death, then to testators two brothers, or if [315]*315one of them should be dead, then to the survivor. They both having died in the life-time of the wife, it was held, that the legacy had vested in both, the brothers, as joint tenants, and must descend to the representative of the survivor. In the decision of this case, the Lord Chancellor remarked, “ a contingent interest may vest in right, though it does not in possession. I take it to be clear, that if a testator gives a legacy upon a contingency, unless the contingency happens; the legacy does not vest; but the case of an executory devise, is, that the interest of the first taker and that of the subsequent taker, vest at the same time. Contingent or executory interests may be as completely vested as if they were in possession.”
One other case maybe noticed, Pinbury vs. Elkin.a It was very similar to the last referred to—a bequest had been-made of eighty pounds, to the testator’s wife, with a proviso, that should she die without issue by him, tlien, after her death, the legacy to go to his brother. After the testator’s death, the brother died in the life-time of the widow, who afterwards died without leaving any issue. The Court held, that this possibility devolved to the executors of the brother, though he died before the contingency happened.
I decline a farther review of the numerous authorities cited on either side; the full discussion of them in argument, and our subsequent examination, have satisfied us, that the true doctrine to be extracted from them all, is that maintained by the cases I have noticed. But further to test the effect of an assignment of an executory interest, before the event has [316]*316happened, on which it depends, it may be useful to suppose the case suggested in argument — that all the executory legatees had released their interests to their sister Elizabeth, or to her and either husband in her life-time. In such case it would appear impossible to doubt, but that the future contingent interests would have been extinguished and discharged; and that Elizabeth’s bequest would have been relieved of the limitation expressed in the will, and the •same have been converted into an absolute estate in herself and husband. A similar discharge of the limitation must also have been the consequence of the death of her sister and all her brothers, during her life-time. If in this way a total extinction or discharge of the executory interest would have been effected, parts of the same were equally liable to be discharged and united in the limited estate, from like circumstances.
Then admitting the principle contended for in argument, that neither David L or Hogan, as husband ..of Elizabeth, was, by the common law, or any statute of this State, respecting distribution, entitled to her choses in action, not reduced to possession during coverture; yet this admission does not affect the right now claimed in favor of Hogan. As already remarked, he is conceived to have had and enjoyed for his own benefit, -during coverture, all the possession of which the property in question was susceptible ; •and that we regard as a legal possession, as well of •.the released interests, as. of the part claimed by descent. And as was said in our previous decision on the subject of this suit, to authorise a recovery of any part of this inheritance, in a suit at law, the right [317]*317must have been established through the representative of the deceased, Drew S. Whitmell; yet this principle does not affect the right of Hogan, under his former possession, to retain so much thereof, as by law he is entitled to; especially when litigating the right with one having the administration of that estate.
From these views of the case, we are of opinion, that the decree of the Circuit Court was erroneous; that Hogan, plaintiff in error, was and is entitled to retain, as his own, all the property in question, and now in existence, (being the surviving negroes and them increase,) except one fourth and one sixteenth (in other words five sixteenths) thereof; that this latter proportion of the property, constituting the original contingent bequest to Ann S. Bell, and her distributive share of the portion of Drew S. Whitmell, deceased, together with an equitable rate of hire, in proportion to their division of the negroes, the complainants are entitled to recover. But the testimony taken may not afford all the requisite information, on which to found the final decree; at least we consider it.necessary, that a master in chancery or commissioners, to be appointed by the Circuit Court, should first make an examination, and report on the subject.
We, therefore, reverse the decree, and remand the suit, that the Circuit Court may carry into effect, the principles of this decision, as herein declared.
Lipscomb, C. J., not sitting.
1 Stew.24