The question of the plaintiffs' right to recover arises out of the seventh clause of the will of Archibald McEachin, which is as follows: "Seventhly. I give, devise and bequeath to my children, to wit, Mary Jane McEachin, Ann Eliza McEachin, Margaret Annabella McEachin, Sarah McEachin, Peter McEachin and Flora McDonald McEachin, share and share alike, the following slaves, to wit, old Cate and her *Page 20 
children and grand-children, Peggy, Jack, c., (mentioning about thirty,) also the negroes hereinbefore devised to my wife Annabella during her life-time only, the before mentioned slaves and their increase, if any, to the said Mary Jane, Ann Eliza, Margaret Annabella, Sarah, Peter and Flora McDonald McEachin, their heirs and assigns forever; and that so soon as any of my said children arrive to the age of twenty-one years, or should marry or may be about to marry, then and in that case I authorize and desire that my executrix and executor, or either of them, should call together three disinterested and intelligent freeholders, and being duly sworn to do justice; and should none be willing to act, I direct that application be made to the County Court to order three freeholders, either with or without my executor or executrix, to value the before-mentioned slaves, whether they be increased or decreased, and put them into as many lots as there may be of my children then surviving, and the first lot to be drawn shall be the property of the heir claiming such division, and the balance of the negroes to remain in common as before, until another application, and proceed as in the first case, until all the lots are drawn; and the negroes thus drawn shall become absolutely the property of the heir drawing the same, and shall exclude the said heir from any further claim in this stock of negroes, unless some one of the children or heirs should die without legal issue, in which case the surviving ones shall inherit equally."
Mary Jane, mentioned in this will, intermarried with the plaintiff Angus D. McLean, Ann Eliza with Neil A. McLean, Margaret Annabella with Joseph B. McCallum. These, with Peter McEachin, are the plaintiffs in this suit. Sarah McEachin, one of the above-named legatees, died intestate and without issue, after her share had been allotted to her, and her property was divided among her brothers and sisters. Several other partitions were made in pursuance of the directions in the will, until the common fund included only the shares of Peter and his sister Flora McDonald, and, on his arrival at full age, he caused a partition to be made between *Page 21 
them, which was assented to by the executor and executrix. Subsequently to this last division, Flora McDonald intermarried with the defendant James Q. McRae, who took the slaves allotted to his wife, into his possession, and has held the same ever since as his property. Flora McD., the defendant's wife, died without issue of her body, and the plaintiffs claim the property assigned to her, by the right of survivorship, according to the terms of the above will. It was agreed that the slaves were worth $4,600, and that if his Honor should be of opinion with the plaintiffs, they should have judgment for that sum, but if of a contrary opinion, a nonsuit should be entered.
Upon consideration of the case agreed, the Court gave judgment against the plaintiffs, who took a nonsuit and appealed.
We concur in the decision made by his Honor in the Court below. The only fair construction of which the seventh clause of the will (on which the question is raised) admits, is that each share became absolute in the child to whom it was allotted. The death, without legal issue, of either of the children to whom a share had been allotted is not provided for by the millerjohn@example.org. The language of the will is that when a lot is drawn it shall become "the property of the heir claiming such division, and the balance of the negroes to remain in common as before, until another application, and then proceed as in the first case until all the lots are drawn, and the negroes thus drawn shall become absolutely the property of the heir drawing the same, and shall exclude the said heir from any further claim in this common stock of negroes, unless some one of the children or heirs should die without legal issue, in which case the surviving ones shall inherit equally." The evident meaning of this is, that a child to whom a share was allotted should no longer have any interest whatever in the common stock, how great soever its increase might *Page 22 
be, but should not be excluded from an equal division with the other children of the share of one of the owners of the common stock who should die without legal issue. That is the proper grammatical construction of the clause, and ought the more readily to be adopted, because it gives full force to, and is entirely consistent with, the expression that the "negroes drawn shall become absolutely the property of the heir drawing the same." If the provision of dying without lawful issue be held to extend to the child to whom a share had been allotted, then he or she would not have it absolutely, but only conditionally, contrary to the express words of the testator. But if the provision is confined to those only of the children to whom no separate shares had been allotted, but who still held their part of the negroes in common, no such inconsistency will exist, and full effect will be given to every part of that clause of the will. It is hardly necessary to say, that this construction cannot be affected by what the children may have done in dividing the share of Sarah upon her death without issue after it had been allotted to her. Our opinion, then, is, that the share of Flora vested in her, absolutely, upon its allotment to her, and became the property of the defendant by her intermarriage with him.
PER CURIAM,                               Judgment of nonsuit affirmed.
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