Salathiel Cole, Exc'r of Artridge Cole, vs. Abraham Ensor and wife, and others, 3 Md. 446

Mason, J., delivered the opinion of this court. The present pontroversy grows out of the construction of the following clause in the will of Mrs.

Artridge Cole, to wit: “I give and devise unto my grandson, Salathiel Cole, my negro girl Beck, together with the rest and residue of my estate, consisting of household furniture, cattle, horses, farming utensils, all and singular, of whatever kind, named or intended to be named; likewise all the produce of the farm, and all the produce that shall be growing on the farm at the time qf my death.” At the time ef the death of the testatrix she was owner of Sten negro slaves, which were not particularly mentioned or referred to in the will.

The whole estate of Artridge Cole was valued at $4104, and the ten slaves, above referred to, ponstitute $2105- of the said whole estate. It is contended pn the part of the appellant, the residuary legatee, that the negroes in question passed to him under the residuary clause in the will, already set out. Oral testimony was then introduced by the appellee, to show that the testatrix did not jntend to embrace this particular property, (the ten slaves,) jn the residuary clause.

In this aspect of the case two questions arise: the first is, can thp intention of the testatrix, to exclude these negroes from the operation of her will, be gathered from the terms of the will itself, and from the surrounding circumstances of the case? and secondly, if not, will it be competent to offer oral testimony to show that the real intention of the testatrix was to make no testamentary disposition of said slaves? An affirmative answer to the first proposition, will render a consideration of the second unnecessary.

We have no hesitation in saying that the proper construction qf the clause of the will now before us, would exclude from its operation the negroes in controversy. If the clause in question had terminated with the expression, “the rest and residue of my estate,” it might doubtless have passed all the property owned by the testatrix at the tirne of her death, and which had not been specifically devised.

But these words are qualified and restricted by the words immediately succeeding, namely, “consisting of.” The effect of these last named words is to indicate, that the testatrix intended to enumerate what she considered to be the rest and residue of her estate, and what she designed should pass under that general designation. She accordingly then proceeds to specify, “household furniture, cattle, horses,” &c. She mentions by name “her negro girl Beck,” as a part of the property intended to pass under this clause of her will.

Does not this circumstance of itself, exclude the idea that her other negroes were also to pass under the same clause? If it were her purpose to devise all her negroes, why name one, and make no reference to the rest, either by the use of particular or general terms ? Much stress has been laid upon the succeeding comprehensive expression, “all and singular, of whatever kind, named or intended to be named.” This language, under the peculiar features of this case, manifestly should be confined to the property previously designated, namely, “household furniture, cattle,” &c.

With a view still further and more minutely to designate the property designed to be embraced in this clause, and to exclude all other not named, the testatrix proceeds to add: “likewise all the produce of the farm, and all the produce that shall be growing on the farm at the time of my death.” 1 Peere Williams, 302, Cook vs. Oakley. Timewell vs. Perkins, 2 Atk., 102. Boon vs. Cornforth, 2 Ves., Sr., 277. Delamater's Estate, 1 Wharton, 362. McChesney vs. Bruce, 1 Maryland Rep., 344.

Another controling feature in this case is to be found in the circumstance, that while the testatrix descends to the most minute enumeration of the articles of property which she designed to pass in this clause, she omits all mention of, or allusion to, the slaves, which arc equal in value to all her other property together. We must infer from this fact, that as she did not mention the slaves with her other property, she did not intend to pass them under the will. Decree affirmed, with costs in both courts.