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 29
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Now I agree that if the first Contingency had not happened but the Son had died leaving Issue Male, upon the failure of the male line afterwards, this Rem'r cou'd not take effect, because the Expect'cy wou'd be too remote, and the Law won't allow the Rem'r of a Chattle to be good unless it may of necessity vest in a few years as upon the Death of one Person or more in being But this will not be a Reason why the Rem'r shou'd not take place when the first Contingency had its Completion upon the Death of the Son, which might & did happen in a very short time Therefore if any Rem'r can be of a Chattle this must be good I suppose the stale distinction in some of the old Law Books between the Devise of a Chattle with Rem'r and the Devise of the Life of a Chattle with Rem'r will not be revived since it has been Exploded lately upon a Solemn Argum't between Edmunds and Hughes (Ante)
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But if it shou'd The Cases which ruled the Judgm't in that Case must produce the same Opinion in this Nels. 174. 2. Vern. 245. 331. L'd Nott. Rep. 116. which clearly prove that there is no difference between the two Cases
[195] Then it will not be denied that a Rem'r of a Chattel limited upon a Contingency that may happen in a few years is good
Vide the Case of Chichester and Burges (before) So are the Cases Pawlet and Dogget. 2. Vern. 86. and Martin and Long ib. 251. where a Rem'r of a Chattel upon the Contingency of dying before 21. was good But the Case full to our purpose is the Case of Pinbury and Elkin 1. Vern. 758 and 776. Where one Devised his Personal Estate to his Wife Provided if she died with't Issue, then 80£. shou'd remain to his Bro'r after her decease The Lord Chan- cellor Macclesfield was of Opinion, the words (after her decease) determined the meaning of the other words (If she died with't Issue) to Intend, if she had no Issue living at the time of her death, which if they had stood Single must have been taken in the Legal Acceptation and Decreed the Rem'r good
So here the words (or in Case of failure thereafter) must have the same Effect upon the former words So is the Case of Nichols and Hooper 2. Vern. 686. Then clearly this Remainder of the Personal Estate must be good And so the Deft. has a good right to it, Yet the Case of the Att'o Gen'l on behalf of the Gold Smith's Company Fitzgib. 314. is full against this Argument
Then as to the Negro that is demanded I cannot see any difference between that and the rest of the Negroes which the Plt. pretends no right to. It is given to the Heir at Law with a Rem'r to the Deft. in Case of an Accid't that has happened it must be Considered as his Gift and must Consequently be Subject to his Will as well as the rest of his Estate
And as to the Profits the matter insisted on in the Answer I Conceive to be suff't for with't doubt the Legacy of a 1000£. was a Debt upon the Residuary Estate which was given to the Son So that Allowing the Profits to be the Sons Estate and no ways affected by the Fathers Will it shall be applyed to discharge the Son's Debt, So I think this Legacy is to be Considered Thus far I have Answered the Plt's. right in point of Law, in these particulars But if I shou'd admit her to be well Intitled in Strictness of Law, and so all regard to the Will and Intent of her Father who has made so handsome a provision for
i
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her must be out of the Question I Conceive we have the clearest Case in the World ag't her and that upon some other very significant words in the Will
" In Case of my Son's dying without Issue then I give my s'd " Estate Real and Personal to my Brother and his Heirs, he or " they paying my Daughter 25006. in full Compensation of the " same.
Now surely these words (in full Compensation for the same are very clear and have no Equivocal meaning, they are Capable of being [196] but in one Sense which is, That if such an Accident shou'd befal the Son the Daughter shou'd have 1000£. Sterl. and 25006. Current Money and demand nothing more of his Estate, which he declares shou'd pass intire as it was to his Brother, I think in as express words as need to be used for such a Purpose
And there is nothing unkind or unreasonable in this a very ample Portion is provided for the Daughter So as to make her a Suitable match to any Estate in the Colony, on the one Hand & on the other he has pursued the Wisdom and Policy of the World in Supporting his Name and the Male line of his Family, So that here is a very wise and just Will and it were to be hoped that if the Plt. were of Years of Discretion she wou'd have so much Piety tow'ds her Father's memory as to desire his Will might take place in its full Extent and not to disappoint any . part of it
The Testors. Intention in this Case is so very Apparent that no Question or difficulty can possibly arise concerning it But say they on the other side the Rules of Law will not Allow a Man to Dispose of his Estate in this manner Therefore he will set aside the Rem'r Yet we will have the 25006. for a Man may certainly give his Daughter a Legacy if he leaves suff't to pay it, as the Testor. here has, But surely this is no reasonable way of arguing in a Court of Equity, The Deft. is bound to pay this Sum of Money in Consideration of his having all the Estate both Real & Personal So that he is no more than a Purchasor, tho' perhaps he has a very good Bargain, And if he is deprived of the Personal Estate how is he Intitled to the 2500£. She must have it upon the Terms of the Will, or not at all, if she has the p'rsonal Estate she must lose the money which I fancy will be no Advantage to her Therefore this Bill is the more Extraordinary on that Account, It seeks to set aside and destroy
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the Will in one part and to receive a benefit from it in another, which is unnatural and no ways Consistent with the Rules of Equity. So I think upon the whole matter there can be no doubt but if the Plt. will demand the 25006. she must Accept it upon the Terms of the Will, The Will is clear that she must give up all pretentions to her Father's Estate, for the Deft. must have that to enable him to pay the money, And of this Opinion I am persuaded the Court will be upon the Reason of the [197] thing with't any authority or Precedent, yet I will mention one Case very like this
The Case of Lady Hearne and Frederic Hearne reported 2. Vern. 555. which was thus Sir Joseph Hearne upon his Marriage agreed by Articles That his Wife, over and above one third part of his Personal Estate shou'd if she Survived him have 800₺ by the in money and the furniture of a Chamber and her Jewells And that notwithstanding any thing in the Articles she shou'd not be debarred of any thing S'r Joseph shou'd give her by his Will. S'r Joseph makes his Will and disposed of his Estate and among other Things gave his Wife 1000£. The Lady demanded the 800£ by the Articles and the 1000£. But the Lord Chief Justice declared she must either abide by the Articles and renounce the Will, For altho' the 10006. devised by the Will is not mentioned to be in lieu of what is given by the Articles, yet the Will reports a Disposition of the whole Estate and there- fore implies a Condition that she must accept what is there given her in satisfaction of her demands And if she shou'd take the benefit of the Will she must suffer the Will to be performed throughout L. p. p. Lord Semors, Laurence and Laurence 2. Vern. 365. and the Case of Ney and Mordaunt 2. Vern. 580. full to the same purpose
Our Case is still stronger than this Because the Testators words are Express that the 25006. should be paid in lieu and full satisfaction of all his Estate of every kind. But then it may be objected that the Profits accrued after the Testators death and can't be reckoned as part of his Estate and therefore can't be claimed by the Deft. by any words in the Will
And this indeed is all that can be claimed with any Colour of Reason in behalf of the Plt. as to these matters in dispute For supposing the Son had lived to be of age and after several years possession had raised a Considerable Sum of money out of the Profits might not he have had a Power over it and disposed
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of it as he pleased, Or if he had died Intestate wou'd not the Law have given it to his Sister, and then where is the difference be- tween that Case and this
Indeed I cannot withstand this Objection if that were the Case But my Answer is that there are no profits swallowed up in the payment of the 10006. Legacy And I must enforce that Argum't a little farther
Here all the Personal Estate except what was necessary to be preserved in Specie for the Benefit of the Heir and his Estate has been Disposed of, and the Profits were designed by the Ex'ors. & Guardians to Supply the deficiency of the Personal Estate that has been sold and have actually applyed by both Ex'ors. to the raising money for the Legacy in the life time of the Heir which was certainly a publick Application and cannot now be altered upon the event of his dying as being so much actually vested in the Plt.
[198] And besides it is plain that the 2500£. to be paid by the Deft. was intend'd by the Father in lieu and full Satisfaction of everything the Plt. might Claim from his Estate, and these profits do arise from the Estate and cou'd not be designed by the Father to be Accounted for to the Plt. in Case of the Accident of his Sons death If such Intent may be Collected from the Will, then the Plt. must be barred of them by the 25006. legacy or at least the pr.sonal Estate saved by the Profits re- mains Subject to the Contingency in the Will Then I under- stand the next thing to be Insisted on is Interest for the 1000£. and 2500£. there is no pretence to demand Interest for that and there are no words in the Will to charge the residuary Estate with the paym't of Interest for the 10006. before it was raised But as the Ex'ors. are Ordered to place it at Interest it is implied that the money must be raised from the Estate before that cou'd be done, Otherwise they must have paid so much of their own money
Now we Submitted in beginning to the Decree of the Court about placing out both Sums in such of the Government Securi- ties in England as the Court shou'd direct, and this we hope is all that cou'd be reasonably required of us, and the Court made an Order about it Accordingly as to the Nottoway Lands with't doubt they shall pass with the other Lands by the Will
A Purchase with't Conveyance is an Equitable Int. and is as well Devisable as Real Estates, the Vendor being a Trustee
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for the Purchasor 2. Vern. 680. 1. Cha. Ca. 39. So money agreed to be laid out in Lands shall pass as Land. 1. Vern. 471.
But if it were Otherwise the Legal Estate by Conveyance is vested in the Deft. Subject to a Trust which is now gone and to set aside this Conveyance and create a new Trust cannot be by the Rules of Equity as this is Circumstanced, Because by the Compleating this Purchase the personal Estate which is now vested clearly in the Deft. is now lessened and therefore he ought to have the Benefit of the Purchase As where a Guardian of an Infant having a Consid'ble Sum of Money in his Hands raised out of the Infants Estate lays it out in a Purchase for the Infant. The Infant dies under age, this Land shall not go to the Infants heir, but shall be looked upon as a Personal Estate, because the Personal Estate was lessened by the Purchase And it is a Maxim in Equity that he shall have Satisfaction which sustains the loss Vern. 403. 435. Cha. Cases. 377.
So upon the whole matter I conceive that the Tes'tors Will must [199] be performed throughout, Otherwise the Plt. will have no right to the 2500£. The Tes'tors. Will is clear that the Deft. shou'd have all his Real & Pr'sonal Estate which Includes every thing a Man can dispose of, no Question can remain but about the Profits He might have disposed of them by proper words and they are charged we hope with the 1000£. if not, the 2500£. must be Construed a Composition for them, as well as every thing else
Then all the adversary part of the Plts. Bill must be dismisst and what relates to the paying and placeing out the Money at Interest we cou'd do nothing in it safely with't the Decree of this Court and to the Thousand pound Legacy the Deft. is only a Trustee And as a Trustee he shall not be Answerable for Interest, Unless he had been supinely Negligent or guilty of a wilful default in placeing it out at Interest Vern. 144. And as to the 25006. there cou'd be no payment to the Plt. being an Infant. The Court has taken the matter upon them and made an Order in it
So upon the whole it is Submitted
Cases cited against us. Whitmore's Case Pollexf. 37. of several Limitations of a Personal thing and only one of them good. Obj. That the Negro Bob was not in the same Circumstances as the other Estate
But the whole Court were of Opinion with the Deft.
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1MEEKINS US BURWELL. Ejectm't. Fr Deft. ( Vide Ante.
The Case.
Thomas Meekins was Seized in fee of a Tract of Land whereof : the Lands in Question are parcel and having Issue 3 Sons Thomas, William, Roger and a Daughter Mary, by his Will bearing Date the 7th February 1669. Devised one parcel of Land to his Son Thomas in fee with a Legacy, another Parcel to W'm in fee with a Legacy, another Parcel to Roger in fee with a Legacy and gives his Daughter a Legacy Then follows this Clause. "If it shall happen that any of my s'd Children die "with't Issue, then that Share to be equally divided among "those that Survive, but if all my Children die with't Issue "then my Lands shall fall to my Heirs in England." The Testator died, Thomas, William and Roger Entered into their several parts William died with't Issue before the Year 1682 Thomas entered into his part and by Feoffment dated 7. 9ber 1682, Conveyed it to Humphry Browning who entered, William Brown as Guardian to Roger Entered upon him Browning brought Ejectm't & by Judgm't of the General Court 28. Sep'r 1683. recovered The Court adjudging that Tho's had a fee in W'ms part. 1. Feb'ry 1698. Browning Enfeoffs Burwell and 4 & 5. April 1710. by lease and Release Roger likewise Conveyed his part to Burwell the Defts. Grand-father under whom he Claims Thomas Meekins the eldest Son died March 2, 1721, leaving Issue the Lessor of the [200] Plt. his Son and Heir and Roger Meekins died 6th March 1723, with't Issue
There was an Ejectm't formerly brought by this Lessor and the Son and Heir of the Daughter one Vadin and upon a Special Verd't in that Cause this Court in October 1729, adjudged that the three Sons had several Estates tail in their Lands And that Thos. and Roger had an Estate Tail in William's part and that the Daughter took nothing and for that reason the Plt. cou'd not recover having made Vadin one of the Lessors who had no Title. But as to a moiety of Williams part, it was held that Meekins's was barred by the Stat. of Limitations So now this Ejectm't is brought for a moiety of William's part, and all of Rogers part upon the Opinion of the Majority of the Court given in the former Cause
'S. C. in W. G.'s Barradall 32. [Note by W. G }
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SIR JOHN RANDOLPH'S REPORTS
It was strongly insisted in that Argument that the Recovery by Browning in this Court in the Year 1683. being still in force and not reversed gave the Deft. a Title, however this Will might be Construed, but that being overruled then I shall not touch upon that point but leave it to be Argued by the Gentleman who is concerned on the same side with me, whose Opinion I know is That that Judgm't gives the Deft. a Title, tho' my Sentiments of the matter are otherwise, but the Question I shall Consider will only be Whether the three Sons of the Testa- tor had several Estates Tail by this Will in the Lands Devised to them. In the first part of the Will all the Lands are given to the Sons and their Heirs for ever which with't doubt makes a Fee Simple But then this Clause "And if any of my Children "die with't Issue that Share to be equally divided between the "Survivors, and if all my Children die without Issue then my "Lands to go to my Heirs in England."
Now if the first part of the Clause can be construed to Relate to the Land the Estate of the Sons must be clearly a Fee Tail, But I conceive no such Construction can Reasonably be made, because the Tes'tor in the Former part of his Will besides the Land had given to each of his Sons a part of his Personal Estate, and had given his Daughter a part of his Personal Estate with't any Lands, Then immediately follows this Clause, and the words (if any of my Children) without doubt will Extend to the Daugh- ters as well as the Sons, And therefore the Tes'tor must intend that if the Daughter died without Issue her Legacy shou'd be divided among the Brothers. He must likewise intend that something shou'd Survive to the Daughter upon the death of any of the Sons, but the Court in the last Cause adjudged that the Daughter took nothing [201] in the Land And then consequently by this part of the Clause the Surviving Sons cou'd take nothing in the Land of William. So that these first words can have no Influence upon the Estates given to the Sons in the former part of the Will And this is clearer from the Subsequent words (if all my Children die without Issue, then my Lands to go to my Heirs in England) from whence it must be Implied that the word (share) before was not intended to affect the Lands for the express mention of Lands here must by all the rules of Con- struction Exclude them in the words before
And it will be no Objection to this Construction, to say, That if the Tes'tor's Intent was to Limit a Rem'r of the Personal
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Estate to the Surviv.g Children upon the death of any of them with't Issue such Intent cou'd not take effect by the Rules of Law And so it wou'd be Interpretting a Man's Words in Order to render them useless, This I say will be no Objection, if it be a Reasonable and necessary Construction, for neither Ignorant People nor those that are more knowing are so well Acquainted with the Rules of Law as to such Remainder can't be Limitted
Now to support this Construction by Authority. tho' it it without doubt difficult to bring an Adjudged Case that may be opposite to every Will in the World I think the Case of Ever and Haydon Cro. Eliz'a 476. to the purpose Where a Man was seized of Houses and Lands in Lawton in the County of Oxford, and also of Houses and Lands in Waterford in the County of Hartford and Devised his Houses and Lands in Oxton and also his Lands, Meadows and Pastures in the County of Hartford, And it was Adjudged that the Houses upon the Lands in H. did not pass, because hav'g mentioned the Houses and Lands in Oxton, and only the Lands, Meadows, and Pastures in H. he cou'd not intend to pass the Houses in H. Otherwise he wou'd have mentioned Houses in both places, and besides the particular Devising of his Lands, Meadows and Pastures restrain the general Intendment of the word Lands and excludes Houses
The same Case so Adjudged Owen 74. And the Judgm't was Affirmed upon a Writ of Error in the Exchequer Chamber, for this Reason That having Devised a House in Oxton and Land in H. it cou'd not be Intended that he wou'd pass more than his words express, viz. the Land and not the Houses upon the Land 2. Ander. 123.
There is the very same Reason here that the express mention of Lands in the latter part of the Clause shou'd restrain the general Intendment of the word (Share) in the beginning to exclude the Lands if it might Otherwise Extend to them
Then if this be the natural Construction of the first words [202] We must Encounter the Subseq't words of the Clause "If all my Children die without Issue, then my Lands to go to my Heirs in England And no doubt it will be Argued on the other side that these Words put their Title out of dispute, notwith- standing our Construction of the preceeding Words shou'd take place, But I conceive these words Cannot hurt us
For the Case then will be no more than this "A man having 3 Sons and a Daughter devises Lands to his Sons and to their
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Heirs for ever And adds a Clause that if all his Children die without Issue, then his Lands to his next Heirs If these words were in a Deed the Sons with't doubt wou'd have a fee Simple And a Will shall never be construed to Convey an Estate Otherwise than a Deed will, unless the apparent Intent of the Devisor will Otherwise be frustrate and ineffectual Therefore where in a Deed the words carry a fee simple, and the like words are in a Will, but some farther Intention of the Devisor be expressed which can't take effect with't restraining words which Import a fee Simple to an Estate Tail Such Construction must be made, And this is the Reason why in Construction of Devises to one and his Heirs, and if he die with't Issue, Rem'r to another The first shall be only an Estate Tail that the last may not be frustrated, but the Intent observed & performed. Pollexf. Argum't his Rep. of Maynel & Reads Case 426.
But when this farther Intention is so doubtfully expressed that it cannot be Collected from his words in whom this Rem'r shall vest Then the fee Simple shall stand and not be turned into an Estate Tail, because this is to be done only for the sake of the Rem'r to make that good
Now if in this Case the Testor had had only three Children and Devised his Lands to them and their Heirs with such a Clause as is here they wou'd have several Estates Tail with cross Remainders to one another, and if they had all died with't Issue, then the Heirs in England must have come in, But having four Children & Land to 3 of them and their Heirs, and then saying, if all my Children die without Issue, then to my Heirs in England, makes an invinceable difficulty in the Case
It cannot be so much as Conjectured from the words, how or in what Order the Surviving Children shall take upon the death of one or more of them with't Issue; and no Cross re- mainder can be Implied He might intend that upon the death of one Son with't Issue [203] the Land shou'd be divided among the Surviving Sons, exclusive of the Daughter or equally between the Sons and Daughter, Or he might intend his Daughter to Succeed after all his Sons were dead But which of these he in- tended can't possibly be discovered. For which Reason this Clause must be void
An Authority for this point is the Case of Hanchet & Thelwal 3. Mod. 104. and Skinner 266. Reported by the Names of Price and Warren Where the Tes'tor. had two Sons and 4 Daughters
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and Devised Lands to One Son for life Rem'r to his 4 Daughters share and share alike. And if all his Sons and Daughters died without Issue, then to his Sister and her Heirs. The Court held it uncertain in what Order the Estate shou'd go, there being no Appointm't who shou'd have the part of any of the Daughters dying with't Issue, therefore the Daughters had no Estate Tail, but the words (If all my Sons and Daughters die without Issue were void
For the Wills are to be favoured in Construction as far as may be Yet where they are so uncertain that the Intention can't be Collected they ought to fall, Our Case is the same, as to the last part of the Clause, and if one the other side it shou'd be laboured to Construe the first part of the Clause to extend to the Lands, there will be the same difficulty there, for it will be impossible to know whether the Tes'tor intended to exclude the Daughter in the first Rem'r or not, the words will certainly take her in, And yet the Court at the last Argument held she took nothing, And where one part of a Mans Will is Clear and Express, as here, in the Devise to the 3 Sons, and the other part is so Doubtful and uncertain that it may be taken one way or other it is most Reasonable, and the Case before cited proves it to be Lawful to let the express Devise take place and to shew no regard to that which can't be clearly understood
But then it will be Objected that the Tes'tor plainly intended to keep his Land in his Family as long as any of them was re- maining And here we are labouring to frustrate that Estate
Ans'r The Intent is clearly so, but that Intent can't be per- formed for want of knowing how the family were to Succeed in the Inheritance and then it is the same thing as if no part of his Intent cou'd be discovered, However it must be Admitted of all sides that this is no clear Will, It was Adjudged in this Court near 50 Years ago that the Sons had a fee Simple That Judgm't has remained in peace till within these four Years, We have purchas'd under it, and thought we had the same Security that any Body can have under any Judgment of this Day, Making a different Construction of the Will now will be unsettling a long possession that we had of Williams part, De- stroying a Title which is founded on the Judgm't of the Supreme Court of a Country and the Consequences of such a Preced't ought to be considered.
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