USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. I > Part 24
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But the Judgm't was Affirmed.
THORNTON US BUCKNER. In Chanc. Fr Plt.
Some distinctions as to Joint enants &c. A will of lands good before patent obtained.
Thomas Pannel and John Prosser Surveyed 2200 Acres of Land upon the Branches of Mattapony and made a Division
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thereof, but never took out any Patent for the same But after- wards they made another Survey of 2500 Acres of which the 2200 Acres were parcel and for this 2500 Acres obtained a Patent granted to them by Sr. William Berkeley the 4th of November 1673. Before the passing of this Patent, the 28 Aug't 1673. John Prosser made his Will and thereby Devised his part of 2200 Acres first Surveyed in these words
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" Item I give to my Sons jointly by name Roger and Anthony " Prosser a Dividend of Land Containing one thousand and one " hundred Acres lying upon Mattap'y Swamps to them and " their Heirs for ever to be divided by Lot, when the eldest of " them comes to age, and dying without Issue to be equally " divided between the Surviving Brethren, yet this shall be no " bar to hinder any of them selling his own porper Inheritance." And he gave his Lands, not disposed of to his four Sons, and after passing the Patent John Prosser died leaving Issue four Sons, John his eldest Son & Heir Roger, Samuel and Anthony. " Item I give to Anthony Prosser a Tract of Land lying at " Mattapony Branches which was taken up between his Father " John Prosser and myself Copartnership, the s'd Land I say "to be divided between my own Children and him and their " Heirs for ever"
Thomas Pannel after making this Will died leaving Issue a Son and two Daughters, William, Mary and Isabella and his Wife enseint of a Son, who was born and Named Thomas
Mary married one Francis Stone & Isabella married Rich'd Philips who died after her Father and left one Child a Daughter named Catherine who married one John Knight, After the death of Thos. Pannel and Isabella a moiety of the Land was divided into 5 parts whereof 2-5 were assigned to William the eldest Son 1-5 to Thomas the after born Child 1-5 to Mary Stone and the other 5th to Catherine the Daughter of Isabella
Anthony Prosser died in the life time of Roger leaving Issue Anthony his Son and Heir John Prosser the eldest Son of the Patentee died leaving [142] Issue Samuel Prosser his Son and Heir. This Samuel & Anthony 21. Jan'ry 1717. sold and Con- veyed their Estate in these Lands to Francis and Anthony Thornton the Plts. who have ever since been in Possession thereof
John Knight and Catherine his Wife 24th March 1715 sold and Conveyed their part to them. So we say the Plts. are intitled to a moiety of the 2500 Acres and to 1-4 of the other moiety
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John Buckner purchased William Pannels part Anno. 1707 and Devised it to Thomas Buckner one of the Defend'ts.
Richard Buckner the other Deft. Anno 1707. purchased Thomas Pannels part In the same year he purchased Mary Stones part by the Name of 844 Acres and 220 Acres
And Roger Prosser by Indentures of Lease and Release dated the 9th and 10th Days of January 1709 Conveyed to the same Richard Buckner and Larkin Chew his part of the Lands being by Estimation 550 Acres more or less
Roger Prosser and Samuel the Sons of the Patentee are dead without Issue
The Plts. Francis and Anthony Exhibit their Bill ag't Richard Buckner and Thomas Buckner to have their parts assertained and to have Partition, they have Demurred to the Bill
But at the last Court the Demurrer was overruled and the Court Ordered the Plts. Title to be tried at Law and now the Case as it is above Stated is agreed between the Parties And the Question will be what part of the 2500 Acres Granted to Prosser and Pannel, the Plts. are intitled to or whether they have any Title, or any part, and in the determining this Question, two points must be considered
1. If the whole Patent accrued to Thomas Pannel upon the death of Prosser by Survivorship what portion of the Land Anthony Prosser and the Children of Pannel were respectively Intitled to under Pannels Will. Whether Anthony Prosser shall have a Moiety and the four Children of Pannel the other moiety as Tenants in Common, or Whether Each of them shall have 1-5. 2. If nothing Accrued to Pannel by Survivorship Whether Roger and Anthony Prosser did take anything in the 1100 Acres by their Fathers Will which was made before the Patent passed. For if they cou'd take, the 4 Sons by the last General Clause might take the Residue.
As to the Survivorship I need say nothing to it, either one way or the other the Plts. have a Title to a moiety and 1-4 of the other moiety. But I take it there shall be no Survivorship in this Case in Equity.
[143] 1. If there was a Survivorship in the Case Anthony Prosser must have a Moiety as Ten'ts in Common and the four Children of Pannel were Tenants in Common of the other moiety.
For the Testor. declaring that the Land was taken up in Partnership between him and Prosser, his Intent clearly was
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that the Land shou'd go according to the Agreement, and that it shou'd be divided between Anthony and his Children in Moietys. Otherwise it must be Supposed that he did not intend to do Justice which cannot be in the Case of a Will
Then for the other moiety the 4 Children must be Tenants in Common by force of the words [Equally to be divided] which shall run to both moietys and so is the Case in 3. Mod. 209. Where a man Devised his Lands to his 3 Grand Children to have one moiety and the Daughter the other And the Court were all of Opinion that the Grand Children were Ten'ts in Common of their moiety
Then the Plts. will be intitled to one moiety and 1-4 of the moiety which was Isabellas part
2dly. If there be no Survivorship, Prossers Moiety is not dis- posed of His Will as to the 1100 Acres is void being made before he had a Title. The Statute of Wills is, That any Persons having Lands may by his Will dispose of them. This word, having imports two Things, to wit, Ownership and the time of Owner- ship, For to be able to Devise Lands a Man must have them at the time of making his Will 3. Co. 30. b. Butler and Bakers Case
If a Man by his Will devises all his Lands and afterwards Purchases other Lands the new purchased Lands shall not pass, for a Man can't give that which he has not, and which was void in its original can never be good. If an Infant makes a Will it's void, tho' he come of full age before he die. So of a feme Covert, And in these Cases there is only a Personal disa- bility viz. Ifancy Coverture, Here is a real disability, wanting the Thing, And the Constant form of Pleading is That the Testor was seized and being so seized made his Will Bunter vs Coke Salk. 237.
Then prossers moiety descended to his Heir at Law of whom the Plts. have purchased But perhaps the Case in Fitzgib. Devise 17 and Bro. Devise. 15. and Plowd. 344a. If a Man devise Lands Certain, as the Mannor of D. and Whiteacre and has nothing at the time of making the Will and after he purchases it, it shall pass by the Devise, because it shall be sup- posed that he intended to Purchase it And the Rule of Equity 1. Cha. Ca. 39. That if upon Articles for a Purchase the Pur- chasor dieth and Deviseth the Land before the Conveyance Executed, the Land passeth in Equity, And that [144] a Pur-
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chase without a Conveyance is an Equitable Interest and is as well Deviseable as a Real Estate, the Vendor being Trustee for the Purchasor 2. Vern. 680. 1. Cha. Ca. ubi Sup. may be objected
If it be so the Defts. can have no more of Prossers moiety than Roger Prosser sold which was the half of 1100 Acres to him Anthony and the rest descend'd to Anthony the Heir at Law to the other Devisee
So upon the whole matter the Plts. are well intitled to one Moiety and 1-4 of the other moiety If Tho's Pannel took the whole Patent by Survivorship. If he did not nothing passed by Prossers Will but his moiety Descended to his Heir at Law of whom the Plts. have purchased. If any thing did pass Roger Posser sold 550 Acres, not claiming Anthonys part by Survivor- ship. Besides Roger and Anthony were Tenants in Common by the words of their Fathers Will. His directing that the Land shou'd be divided when the Eldest came of age and de- claring if they die without Issue it should be equally divided between the Surviving Brethren plainly shew his meaning that he cou'd not intend the Issue of either of the Sons shou'd be deprived of their Inheritance by Surviorship which is never favoured in Equity
The Court upon the Argument of this Case was of Opinion That the 1100 Acres passed by Prossers Will to Roger & Anthony as a Tenancy in Common.
That by the Will of Thos. Pannel Anth'o . Prosser was Intitled to so much as wou'd make up that 1100 Acres a moiety of the whole which the Plt. had purchased. And that the Plts. were intitled to one fourth of the other moiety Isabella's part
But the Lawyers on both sides the next morning met in the Secretarys Office to direct the Clerk in drawing the Decree, And I had Directed the drawing the Decree According to the Opinion above ment'd But the Lawyers for the Defts. telling the Clerk the moiety of the 1100 Acres was to be divided by Pannel's Will between his Children And that the Plts. were Intitled to the other Moiety under Anth'o Prosser and that the Deft. R. B. to one half of the 1100 Acres and the Plts. the other half
So the Decree was drawn and being for my Clients Advantage I did not gainsay it.
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[145]
April 1730
1MARSTON US PARRISH. Detinue Fr Deft.
John Williams was possessed of two Negro Boys Arther and Bill and two Negro Women Dinah and Nanny and made his last Will 22d. April 1713. Willed his Negroes and all other Goods and Chattels to be valued and Appraised and equally divided between his Wife and 3 Children, and that his Wife shou'd keep his Childrens Estates till they came of age and died soon after making his Will, After his death the Negro Woman Nanny had two Children, Obey and James, and the Negro Woman Dinah had a Child named Essex
Anthany the Widow married John Marston who supposing his Wife to be with Child, by his Will dated the first day of De- cember 1719 Devised these Negroes viz. Arther, Will, Nancey, Essex, Obey and James to the Child his Wife was enseint of, and gave all the residue of his Estate Real and Personal to his Wife and her Heirs for ever, paying his Debts and the Orphans Estates in his Hands and died soon afterwards, but his Wife did not prove with Child and the Widow is married to her 3d. Husband Parrish the Deft. and none of Williams Children are of age
And the Plt. as Heir at Law to Marston the 2d. Husband hath brought an Action of Detinue for Arthur, Will, Essex, Obey and James which are properly William's Estate and for Nancey which was Marstons proper Estate
The Plt. as to the Negroes that were William's cannot main- tain an Action of Detinue. For by the Will of Wm's they were to be equally divided between his Wife and Children, and until her part is assertained by a Partition it is uncertain which of them is hers
Therefore supposing her part vested in Marston her Second Husband, And that it descended to the Plt. as Heir at Law, the Plt. must know which of the Negroes are his to support this Action For in Detinue the Things demanded must be certain as in Debt
But there is a stronger Objection, and that is to the Plts. Right to the Thing demanded upon the Will of his Brother
1S. C. in MSS. Virg. Rep. in Congr. Libry. and printed in Jeff. Rep. [Note by W. G.]
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The Devise to the Child in ventre Sa mere never vested because no child was born, but was for that reason void And what ever was intended to have been given to this Child if it had been born, by Law vested in the Wife to whom the residue of the Estate was given
A residuary Legatee is in Law Haredis and universal Successor to the Testator, and must have every Thing that is not given away by the Will. Here was only an Intention to give, but no Gift for want of a Person to take
Tho' in the Case of Sprigy and Sprigy. 2. Vern 394 it was [146] Admitted that in the Devise of the residue of a Personal Estate if a Legatee was dead at the time of making the Will the residuary Legatee shall not have the Benefit of that Legacy and that it shou'd not fall into the residue, because nothing was intended to pass by that Devise but the residue, after that and other Legacies paid.
Yet the principal Case there was of a Legacy to Thos. Sprigy if he came from beyond Sea. And the Lord keeper was of Opinion that the Devise being Contingent, and Conditioned preced't which never happened was as if never given and the residuary Legatees shou'd have the benefit of that Legacy
So here in a Case of a Devise in ventre sa mere is a Contingent Devise, for in reality the Woman was not with Child, and the Intent of the Testor appears plainly to be that the Wife shou'd have all his Estate if there was no Child, taking Notice of no body but his Wife and the Child he supposed she went with And there is a great deal of reason and Justice she shou'd have it, for all the Negroes except one came by her, And she is Charge- able with all his Debts and the Estates of Orphans out of the residuary Estate
The Court were of Opinion that the Plt. had no Right to recover the five Negroes that were Williams's, And, that the Plt. shou'd recover the Negro that was Marstons as his Heir at Law
1EDMONDS US HUGHS.
Det. Fr Deft.
Remainder of a chattel after Estate for life good in a Will.
The Special Verdict in this Case is very imperfect and In- certain so that no Title in the Plt. can be Collected from it, But the Case is thus, Richard Alderson was possessed of several
S. C. in MSS.Virg. Rep. in Congr. Lbry. and printed in Jeff. [Note by W. G.]
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Negroes in the Decl. mentioned and made his last Will and Testam't in these words (dated 16th Sep'r 1695) "My Will is " that Margaret my Wife shall be Sole possessor and disposer " of all and every part of what Estate it hath pleased Almighty " God to endue me withal, during her Life, providing she keep " herself unmarried, or in Case she do marry again, that she " nor her Husband, or any Person or Persons in their behalf " by any means or Instrum'ts to Imbezel or make waste of the " s'd Estate to any Indemnity to my Children." Then by another Clause he gives his whole Estate Chatel and Chatels to his Son Richard, please God he lives &c.
[147] Margaret after her Husbands death married the Plt. who left her and carried off several of the Slaves and as it is say'd marryed one of them and has several Children by her.
Margaret died and Richard Alderson the Son took the Negro's in the Decl. mentioned and sold them to the Defend't.
And the Question will be Whether the Rem'r of Negroes which are at the time of the Testors death Chattels (first given to Margaret for Life be a good Rem'r to Richard
And I think clearly it is
The Devise that his Wife should be sole possessor of his Estate during her Life, if it had gone no farther it wou'd have been construed as to Chattels no more than the Devise of y'e use and in that Case without doubt a Remainder might by the Rules of Law be Limitted over But when he goes on and says she shall be sole possessor and disposer of every part of his Estate during her Life it may be a question whether it be not the same as if he had given his Estate to his Wife for Life Rem'r over
And admit it to be so yet the Rem'r will be good, and Richard had a good right to the Negroes after his Mothers death. There is a difference taken in the old Books, where the thing it self is Devised, a Devise over is void But where only the use is Devised to one for a cert'n time it is otherwise And the principal Case to this purpose is 37. H. 6. 36. Bro. Abr. Title Devise pl. 13. upon which several other Resolutions have been built viz. Plowd. 521. b. Owen. 33. Marsh. Rep. 106.
But these Authorities are certainly too rigid in the Case of a Will where a Construction ought to be made as far as the Law will admit that the Intention of the Testor, may take place, for a Man upon his death Bed being supposed to be inops consilii,
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the Judges will so Expound his Words that the whole Will may stand and take effect
And as to the Case here of latter times it has often been re- solved upon great debate contrary to the old Books and at this Day the Law is not so Strict as it was formerly taken to be in the Disposition of Personal Chattels. For instance In the Case of Catchmay and Nicholas A'o 1673. where one Devised all his Estate to his Sister during her Life and after her decease he gave 400£ a piece to his four Neices which Estate Consisted of Personal Things, there it was insisted that the Legacy to the Neices was void, it being the Devise of the Rem'r of a Per- sonal Thing after the death of another to whom it had been already given
The Master of the Rolls referred this point to Justice Ellis [148] for his Opinion, which was that the Remainder was good, and it was so Decreed at the Rolls, And upon an Appeal to the Lord Keeper the Decree was affirmed, Lord Nottinghams Rep'ts 116. for the first Devise shou'd be construed a Trust
Sr. Tho's Charges Case A'o 1691. Nelsons the old Duke of Albemarle Devised his Jewels and Plate to his Wife for Life and afterwards to his Son Christopher which was a plain Devise of a Chattle personal with a Remainder, And the Master of the Rolls held this should be Construed a Devise of the use of the Jewels in Order to Support the Will and Intention of the Testator
S. C. is reported 2. Vern. 245. And the Lord Chancellor De- creed Accordingly, And the Remainder to the young Duke was held good.
In the Case of Hide and Perrot 2. Vern. 331. The Plts. father Devised to his Wife all his Household Goods in his dwelling house at Heddesden during her natural Life, and after her de- cease to his Son Joseph And the Question was Whether the Devise over of these personal Chattels was good or not.
The Lordkeeper held that the Devise over was good, for as to the Personal Chattels the Civil and Common Law is con- sidered, and there the Rule is, Where personal Chattels are Devised for a Limitted time it shall be Intended, the use of them only, and not the Devise of the Thing itself, And therefore allowed the Rem'r over to be good.
These Cases were determined upon Solemn Arguments and are conformable to the Resolutions in several other Cases cited in the Reports They come up expressly to the Case at Bar, and
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there can be no Question but According to them Richard had a good right to the Negroes now in Question.
And it was Adjudged for the Deft.
1TUCKER US SWENEY. Appeal from Eliz'a City. Fr Appell't.
Increase of Slaves after the death of owner, may be taken in Ex'on for his debt.
The Case.
Mr. Dandridge recovered Judgm't against the Ex'rs of Nicholas Curle for 5076. Curle died possessed of several Slaves and of these Slaves after his death there was a Considerable Increase Mr. Dandridge took out a Fi. Fa. which was served upon several of the Slaves which Curle died possessed of and likewise upon several of the Negroes born after his death And the Ques- tion is Whether the Increase of the Negroes may be taken to satisfy this Judgment. And I hold clearly they may.
Negroes notwithstanding the Act making them Real Estate remain in the Hands of the Ex'ors by that Act as Chatels and as such do vest in them for payment of Debts So that in this Case they are considered [149] no otherwise than Horses or Cattle, And there is no doubt but the Increase of any living Creature after the death of the Testor, are looked upon as part of his Estate, and are liable to be taken for his Debts.
The authority for this is Went. 83. And was Adjudged by the Court.
LEGAN & VANSE US LATANY. Ejectm't. Fr Deft.
A case where a devise to one, & if she die with't issue to ans'r - & the first devisee had a fee-simple.
The Case agreed is thus.
John Penn was seized in fee of the Lands in Question and by his last Will and Testament devised them to Ann Sharp in these words I give and bequeath unto Ann Sharp Daughter of John Sharp my Plantation which I now live on, Then in another Clause at the end of his Will he says " And for my Land which " I have given unto Ann Sharp if it shou'd please God that she " die without Issue I give to my friend Thomas Harwar, Other- " wise to her and her Heirs for ever
1S. C. in M.S.S. Virg. Rep. in Congr. Libry. and printed in Jeff. Rep. [Note by W. G.]
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Ann Sharp married Vincent Vanse and had Issue by him John Vanse her Son and Heir, who is the Lessor of the Plt. but Vanse & his Wife by Deed dated the 20th of February 1692. Acknowledged by them both in Court she being first privately Exam'd. Conveyed the Lands in Question to Edward Thomas in fee And Edward Thomas by his Will dated the 28 of May 1699. Devised the Lands to the Parish of South Farnham for a Glebe And the Minister of that Parish hath ever since enjoyed it as such And Latany is now Parson of the Parish
The Question arising upon this Case is What Estate Ann Sharp had by the Will of Penn: Whether an Estate in fee or an Estate Tail And I must think she had an Estate in fee
I admit if Lands be given to one and if he die without issue General. The word Issue makes an Estate Tail by Implication, but when the dying without Issue is Limitted within a certain time it is Otherwise So it is held in the Case of Bacon and Hill Moor 464. Cro. Eliz. 498. So Adjudged in the noted Case of Pell & Brown where one Brown leaving 3 Sons Tho's W'm and Richard by his last Will Devised Lands to Tho's for ever and if Tho's died with't Issue living W'm that then W'm shou'd have the Land, And it was resolved by all the Justices that Tho's had a fee, because the first part of the Devise carry's a fee And the Clause If he died without Issue is not Absolute and Indefinite, whensoever he died without Issue, but with a Con- tingency if he die without Issue living W'm Cro. Ja. 591.
[150] My Lord Chancellor Nottingham in the Duke of Norfolks Case 31. and 49. Says there is not a clearer Rule in Law than this, that there can be no Remainder Limitted after a Fee Simple, but yet the nature of Things and the necessity of Com- merce between Man & Man have found a way to pass by that Rule and that is thus
Either by way of use, or by way of Devise Therefore if a Devise be to a Man and his Heirs and if he die without Issue in the Lifetime of B. then to B. and his Heirs, this is a fee Simple upon a fee Simple and yet it has been held good, and he mentions the Case of Pell and Brown and says the Law was so Settled before in a Case between Hynde and Lyon 3. Leond. 64.
The Law being clearly settled in this point it only remains to shew that the intent of the Testor. was not that the Land shou'd remain to Harwar, if Ann Sharp at her death left Issue and that Issue after several Years shou'd fail and be Extinct
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But that he intended to Limit her dying without Issue to a certain time, And that I think is clear enough from the whole Will, Otherwise the last words must be rejected as Senseless, which cannot be in the Construction of a Will where the Judges will make use of every Word of the Testors, [if it be possible] and make such an Exposition as that the whole Will may take effect and nothing be rejected.
If the Testor. intended that Harwar shou'd have the Land whenever the Issue of Ann Sharp shou'd fail the Subsequent words (Otherwise to her and her Heirs forever) are useless and must be Rejected as having no meaning.
For the first words (if she die with't Issue) had fully Ex- pressed that before But the word (otherwise) does plainly shew the Testators Intent to be thus If Ann Sharp shou'd have no Issue living at her death I give the Land to Harwar, otherwise, that is, if she leaves Issue, I give it to her and her Heirs forever, And if this be his Intent Ann Sharp had a fee Simple. In Com- mon parlance or According to Vulgar Acceptation A Man is say'd to be dead without Issue when he has no Issue living at the time of his death 2. Vern. 759. 767.
Indeed in the Legal acceptation it is understood of a future time when the Issue left at his death might afterwards happen perhaps 100 years after to die without Issue. But where there are other words to shew the Testors. Intent to be According to the Vulgar Acceptation [151] they shall be taken in that Sense As in the Case of Pinbury and Elkin 2. Vern. ubi. Supra. Where a Man by his Will gave Money & other Personal things to his Wife provided if she died without Issue that the 80£ shou'd remain to his Brother after her decease, And the Lord Chancellor was of Opinion that the words (after her decease) shewed the Testors. Intent to be that his Brother shou'd have the 80€ if his Wife had no Issue at her death and so Decreed the Devise over to the Brother to be good There is another reason for Construing the Words (if she die with't Issue) to be Limitted to the time of her death from the Estate given to Harwar which is no more than an Estate for Life.
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