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 30
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R97
SIR JOHN RANDOLPH'S REPORTS
[204] Upon the whole we hope we have made it clear, perhaps upon a Nicer debate of the matter That the Court in 1683, gave a right Judgment And so we Submit it and pray the Judgm't for the Defendant
But if the Court shall be of Opinion that by the first part of the Clause the 3 Sons had Estates tail in the several parcels of Land Devised to them & that the Daughter took nothing upon the death of William, which was the Opinion upon the last Argu- ment, Yet the Deft. must have a good Title to William's part, Because the words (if any of my Children die without Issue that Share to be equally divided among those that Survive) will only pass an Estate for Life in Williams part to Tho's and Roger So is the Case of Middleton and Swain Skinner 339. and Beviston and Hussey Skinner 563. Then the Reversion in fee being in Thomas drowned his Estate for Life and the fee passed by the Conveyance to Browning as well of his Moiety as Rogers
But as to Rogers we have a Title by the Act of Limitation accord'g to the former Judgment Now it cannot be Argued from the Subseq't Words that this Remainder shall be by them turned into an Estate Tail, because upon the Authority of the Case before cited these words are Absolutely void if the Daughter took nothing in Rem'r which is now Admitted on both sides
But the Court gave Judgm't for the Plt. That the Sons had several Estates Tail with Cross remainder According to the Opinion upon the former Argument
Of this Opinion were Mr. Commissary, Byrd, Digges, Rob- inson, Dandridge & Custis, Ag't it Grymes, Randolph, The Gov'r Silent.
ARMISTEAD US SWINEY & HIS WIFE Ex'rs of N. CURLE. In Chanc.
The Case.
Nicholas Curle being possessed of a considerable Estate in Slaves, Goods, Chattels, ready money and outstanding Debts, made his last Will and Testament whereby he gave several Legacies to his Wife & Children And appointed her Executrix during her Widowhood, but if she married, then Geo. Walker, John Curle, and Harry Jenkins shou'd be joint Ex'ors. with her, After the Tes'tors. death she proved the Will and George Walker, Edmond Keary, Joshua Curle and John Smith became her Securities for her faithful Administration She exhibited an
R98
VIRGINIA COLONIAL DECISIONS
Inventory and afterwards intermarried with James Rickets which made her Securities uneasy, So they Petitioned the County Court of Eliz'a City to be discharged Whereupon the Plt. together with James Rickets and others [205] became bound to the Justices of that Court in the Penalty of 20006. Stg. upon Condition that Rickets Wife shou'd faithfully Administer her former Husbands Estate (In the words of the Condition of the former Bond) and the former Securities were discharged, After this Rickets wasted Curles Estate and died not leaving sufficient to Satisfy the Legacies given by Curle to his Children, His Wife is Adm'x of his Estate and married a third Husband, the Deft. Swiney, and upon this, Swiney to secure himself and his Wife as he Imagined, stired up a prosecution ag't the Plt. upon the Bond he entered into for Adm'on. in Order to compel him to satisfy Curles Legacies, so far as Rickets Estate proved deficient, And after some proceedings upon the Action, and a discovery made that Curles Estate was wasted, and Rickets Assets wou'd not be sufficient to Supply the Deficiency, the Plt. exhibited his Bill against the Defendant And the End of the Bill is to Compel the Deft. Jane to a Settlem't of an Account of her Administration of Curles Estate and Rickets and to oblige her, and her present Husband to Indemnifie the Plaintif
To which the Deft. Jane answers That the Plt. and the other Securities did become bound as in the Bill is set forth, but they did it out of friendship to Rickets, upon what Inducements she does not know and that she always Expected and understood that they were Answerable for Rickets management and that he wasted Curles Estate and if the Plt. had not with the other become Sureties the Estate wou'd have been taken out of Rickets hands and lodged in the Hands of the former Securities where it might have been secure And as to Rickets Estate she says that 4 of the Negroes are are not to be Accounted his Estate because three of them were Devised to her by Curle and the 4th she purchased in her Widowhood before she marryed Rickets
The Deft. Swiney Answers, That none of Curles Estate ever came to his Hands Except the Negro before mentioned and that he hath Exhibited an Account of the Adm'on. of Curles Estate, to which he refers. And as to the four Negroes he made them his own by Bargain and Sale Executed by him and his Wife to Samuel Swiney, who Conveyed them back to him, and owns that he caused the Action at Common Law to be Com-
R99
SIR JOHN RANDOLPH'S REPORTS
menced ag't the Plt. and insists that neither he or his Wife are liable either in Law or Equity to indemnifie the Plt. There are other matters relating to the Account of Curles and Rickets Estates in both Answers which need not be mentioned, because when the first Question is determined, there must be a Decree for the Defts. to Account, and then all the disputed Articles will come properly before the Court Now upen the Bill and Answer, the Questions are Whether the Deft. Jane Executrix of Curle be liable in Equity to Indemnify the Plt. who became Security at Richards Request for her Administration [206] and if she is not then, Whether the 4 Negroes mentioned in both Ans'rs are not to be Accounted Rickets Estate And I conceive she is bound in Equity to Indemnify the Plt. because she is the principal in the Case and she is without doubt chargeable with all Debts and Legacies of Curl if the Creditors and Legatees think fit to take their remedy ag't her She is admitted herself Executrix and confessed that sufficient of Curles Estate came to her Hands to pay all his Debts & Legacies with an Overplus she married Rickets who wasted Curles Estate, this wasting is to be considered as her own Act being occasioned by her folly in Marrying such a Husband
If a Man takes an Executrix to wife and Waste the Goods it is a Devistavit in the Wife, for it was her folly, to take such a Husband who wou'd make a Devestavit And if she Survive that Hurband and marry another they are both liable and if there be a Recovery against them and the Wife dies the Husband still remains Chargeable in respect of the Judgm't against him in his Wife's life But if there be no Recovery in the Life of the Wife, then it's otherwise Fr Curiam Inter Monnson & Bourn Cro. Car. 519. S. P. Is so Adjudged between Eyres and Coward 1. Sid. 337.
The Legatees have not only a remedy against her & her present Hurband in Chancery, but they have the same remedy against them upon the Bond she entered into with the first Securities for her Adm'on. for that Bond is still in force as to her tho' the Securities are discharged by the new Secruities.
Then the Deft. Jane still remains chargeable as principal both in Law and Equity & we are liable only as her Sureties in the same manner as the first Securities wou'd have been if they had not been discharged and no otherwise, For our Bond is in the same words as theirs was, that she shou'd faithfully Administer
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R100
VIRGINIA COLONIAL DECISIONS
Curles Estate And it is ne ways material in the Case whether we became bound on her Account or out of Friendship to her Husband Rickets. If it was for the Advantage of the Husband to keep this Estate in his Hands it must likewise be for the benefit of the Wife, because their Inter'sts must be the same And the event of this management will make no difference now
Then if it be admitted that she is liable to the Cred'rs & Legatees in the first place which I think can't be denied, it must [207] follow by the rules of Equity, that we who are collaterally bound as her Sureties shou'd resort to her to be saved harmless and there can be no Reason that we shou'd pay the money she owes without Redress because the Creditors and Legatees chuse their remedy ag't us rather than against her, or rather because she and her Husband have had it in their power to stir up this Prosecution against us
If two or three Person become bound jointly and Severally as principals and the Obligee will take his Remedy against one he may Compel the rest to Contribute their proportion towards Indemnifying him
So it is Where several are Sureties and one is Sued Equity will Decree a Contribution against the rest and in all Cases the Secur- ities may resort to the principal for Satisfaction of what they are damnified on his Account And it is a Standing Rule in Equity, That the Person or Thing which is primarily Chargeable shall make satisfaction to the Person or Thing that is Collaterally or Secundarily liable This is apparent in a multitude of Instances in the Chancery Books
The Consequence of the Wifes being liable is that the Husband must be so too Tho' it may be objected to be a very hard Case, but it is of the unhappy Conditions of Matrimony that the Hus- band must take his Wife with all her Incumbrances
The Case of Gilpin vs Smith and his Wife & Touch 1. Cha. Ca. 80. is clear to this purpose S'r Edward Touch Settled Lands on Trustees after his Death for payment of his Debts and dies leaving the Deft. Touch his Son and Heir, and the Deft. Smith his Widow, She enters. The Trustees did not Act, She marrys one Loyd, and he takes the Profits during his Life, he dies. She Marries Smith, Smith received the Profits till the Heir came of age, The Plt. was a Cred'r of S'r Edward Touch and Ex- hibited his Bill ag't the Deft. to have his Debt It was Decreed that the Wife was chargeable with the money received by Loyd
R101
SIR JOHN RANDOLPH'S REPORTS
her Second Husband it being considered as her on Act and in Consequence of that Smith her last Husband was liable for the wrong done by Loyd, even tho' there was Assets of L'yds in the Hands of the Wife who was Executrix And Smith and his Wife were Decreed to Indemnify the Heir. N B.
But perhaps the Case of Norton and Sprig 1. Vern. 309. may be Objected, It is say'd Fr Cur. Where there is a Bond there is a Lien by Deed and so the 2d. Husband in Case of a Devastavit of the Wife and her Husband is bound, But where there is barely [?] a breach of Trust or Debt by Simple Contract there the Plt. (a Creditor) ought to follow the Estate of the Wife in the Hands of the Ex'or. of the first Husband
[208] And I do Admit, that wou'd be reasonable, But it does not follow that when there is no Estate of the Wife or of the first Husband, that the 2d Husband shall not be Charged, but the contrary is to be inferred from the Case, for the Estate of the Wife can be chargeable no otherwise than her Person is And she is liable in Consequence every Husband she shall marry during their lives must be so to, for it is impossible to have a Decree or Judgment against a Feme Covert alone
Yet without doubt this Case proves that the Estate of the Wife where ever it is, is liable in the first place, Therefore no Question will remain whether the four Negroes mentioned in the Defts. Answer shall be applied towards our relief, be they accounted Rickets Estate or not
But besides I suppose no Man in the world will say Seriously that they were not Rickets Estate, since the Act explaining the Act mak'g Negroes Real Estate which is so express in the matter that nothing can be say'd against it
Therefore we pray a Decree that we may be Indemnified first out of the value of these Negroes so far as they will go. And for the rest ag't the Deft. Vid. 1. Rolls. Rep 26S. Husband Charge- able with the Devastavit of the Wife before Coverture Fr Coke Cro. Caro. 603. King and Hilson Fr Cur. S. P. 2. Lev. 145. Wife Chargeable with Devastavit of her Husband after his death, Agreed, Cited by Mr. Robertson for the Plt.
On the other side it was Objected by Mr. Hopkins That the Wife it is true is chargeable for a Devastavit to a Cred'r but shall not [?] a legatee. The Cases don't prove that, says he, and that the Plt. is no Cred'r And besides Preced'ts in Equity are of no use
R102
VIRGINIA COLONIAL DECISIONS
And the Court Decreed that the account of the Deft. Jane's Ad'mon. of the Estate of both her Husbands shou'd be Settled and that she and her present Husband shou'd Indemnify the Plt. for the Ballance.
[209]
1DOCTOR NICHOLAS & HIS WIFE US LEWIS BURWELL Surviving Exor. &c. of NATHANIEL BURWELL. In Chanc'y Fr Deft.
The Case.
The Testor. being possessed of a great Estate Real and Per- sonal and having four Children made his last Will and Testa- ment which is dated the 20th of August 1721. wherein he divides his Real Estate among his three Sons and gives his Personal Estate after his Wife's share was deducted (which he Said wou'd be 3) and 100%. Stg. to his Daughter, to be divided between his Sons, Then takes notice that his Wife was with Child and makes Provision for it in this manner " I do now hereby Order, Will " and Devise that if such Child be born and do live to the age " of 21. that then if it be a female, there shall be paid to such " female 1006. Stg., and if it be a Male Child, when it comes to "age, I give it 2000£. Stg. and these several Sums or one of " them out of the Bulk of my Estate."
The 21st of August he makes a Codicil giving his Daughter 200£ more and some other small Legacies and Explaining a part of his Will (which has no Relation to this Cause) " After " his Debts and Legacies paid and the Wifes Lawful Share " deducted, he gives all his Money in England and his Personal " Estate to be divided between his 3 Sons.
The Testator died, his Wife was after his Death delivered of a Daughter, who lived but two Months, She afterwards married Doctor Nicholas, And now they Exhibit a Bill ag't the Deft. who is the Surviving Exor. for her Distributive share of this 10006. Legacy, To which the Deft. has Demurred, And I think upon his State of the Case the Bill ought to be Dismissed, for I take it clearly, that this Legacy vested in the Posthumous Child and Consequently Lapsed upon her death from the most liberal Construction that can be made of the Testators words
His Intent is very Apparent from the whole Scope of the Will,
'S. C. in W. G.'s. Barradall 3 but not the same report. [Note by. W. G.]
R103
SIR JOHN RANDOLPH'S REPORTS
There a plain Declaration, that he Intended (in the first part of it) no more to his Wife than what she cou'd Claim by the Law of this Colony, And that the whole residue, after the Legacy to his Daughter and his Debts were paid shou'd be divided between his three Sons. This I say is his clear Intent before he thought of his Wife being with Child When he called that to mind he proceeded in a manner very Suitable to his former design and makes a Provision for the after born Child by words penned with the utmost Caution So as not to prejudice his 3 Sons in Case the after born Child shou'd not live long enough to want the Portion Intended for it His words are "If such "Child be born and live to the age of 21 Years, then shall be " paid to it so much [210] Carefully avoiding any word of giving or vesting the Legacy in Case the Contingency of her living to 21. never happened.
Again, when he comes to Explain his Will the next Day he gives the whole overplus of his Money in England and his Personal Estate to his 3 Sons and there can be no doubt of his Intending the Sons shou'd have the sole Benefit of the Deaths that might happen in his Family When he expressly provides that if his Daughter Elizabeth shou'd die before she came of age or was married that her Legacy shou'd go to the Children or the Survivor of them, So that taking the whole Will in one View it is apparent he never Intended that the latter Clause shou'd make any difference as to the Sons in Case the after born Child shou'd not live to receive its Portion
Nor can the words be construed in any manner to favour the Plts. Claim without wresting them from the Common and natural meaning, If a Man says " If such a thing, Or when such a Thing happens, I give you so much money, if the thing never happens nothing is given but all is void, And to Construe such a Gift absolute & free from the Condition can't possibly be with't rejecting the greatest part of the Sentence But such a Construction is now laboured & I Suppose will be urged upon the Authority of some Case or other which I never heard of. And indeed there must be something Extraordinary to prevail against Common Sense Or set aside the plain Signification of words I can find no Precedent whereon the Plt. can fix his foundation for this Claim, but all the Books are ag't him
In the Civil Law it is a settled point, That when a Legacy is Conditional it is not due, till the Condition is prformed, So
R104
VIRGINIA COLONIAL DECISIONS
when a Legacy is given at a time which may not happen, as when he shall Marry, or when he shall attain to such an age, if the Legatee dies before that time his Ex'ors. shall have no benefit of the Legacy.
But if a Legacy be given absolutely and a time be Limitted for the payment of it, tho' the Legatee die before, it shall go to his Ex'ors. or Adm'rs Swinb. 462. 463. 464.
This Distinction proceeded from a willingness in the Judges in Civil Law to favour a particular Legatee against the Residu- ary Legatee who takes away the whole Surplus of the prsonal Estate rather than from the reason of the Thing, for the differ- ence [211] between one Case and the other seems too nice for the generality of Mankind to think on in making their last Wills, or even Conceive, But it has been often said by very Eminent Men in the Common Law, that if that distinction had not ruled the Judges in so many Cases, it had not so much weight in it as to intitle the Ex'or. or Adm'r to the Legacy given in either these manners Because it is most Natural to suppose the Tes'tors. Intent to be, that the Legacy shou'd be sunk for the benefit of the universal Legatee when the particular Legatee died before he was Intitled to receive it rather than Devolve to the Ex'or. or Adm'r of the particular Legatee who may be a mere Stranger to the Testator and might not be designed by him to be a Sharer in his Estate. But the Distinction being Settled among the Judges of the Ecclesiastical Courts and a multitude of Cases being determined Accordingly When the Court of Chancery came to have a Concurrent Jurisdiction with them in these matters, The Lord Chancellors conformed themselves to their Rules that there might be two Jurisdictions determining the same point different ways, which wou'd be very Inconvenient to the Subject. Therefore we see in all the Chancery Books in Cases of Legacies, of which the Ecclesiastical Courts might have Cognizance this distinction observed, and wont obj. of, Excheq'r seems to think there is some probable Colour of Reason in it 241.
In Coleberrys Case. 2 Vent. 342. If Money be bequeathed to one at 21. or at Day of Marriage with Interest and the Legatee dies before it shall go to the Ex'or. because paying of Interest shews his Intent that it shou'd vest im'ediately So if Money be given to one to be paid at the age of 21. Years If the party die before, it shall go to his Ex'ors.
But if it be given to one at his age of 21. and he dies before
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R105
SIR JOHN RANDOLPH'S REPORTS
the Money is lost? Decreed by Lord Chancellor Nottingham, The same Case is Reported 2 Cha. Rep. 155. and is thus Stated, William Coleberry at his Death gave 2000£. to the Deft. Item to the Daughter of O. Coleberry when she shall attain her age of 21. Years or be married which shou'd first happen 500£. to be paid her with Interest, The Daughter died under age and unmarried. The father Sued and had a Decree for the Legacy and Interest, The Ex'or. brought a Bill of review And the difference was allowed by the Lord Keeper between a Devise to one to be paid at her age of 21. or Marr'e, there it is due tho' she die before, and where it is Devised If, or when she [212] Comes of age, Tho' the directing the payment of Interest made the Difficulty, yet the Lord Keeper once pronounced the Reversal of the Decree
The Case of Smell and Dee, 6. Anna. Salk. 415. is a Stronger Case Where the Tes'tor. gave 1006. a piece to the Children of I. S. at the end of 10 Years after his decease, and some of them died before, The Lord Chancellor Cowper Decreed it a Lapsed Legacy, Because wherever the time is annexed to the Legacy and not to the payment, it shall be so Tho S'r Tho's Powys distinguished very rightly I think that there was a great difference between this Case and a Devise to one at 21. Years of age Be- cause it is a Contingency whether he attain that age; but the Expiration of the 10 Years is inevitable
So that where a Sum of Money is given to be paid at a Certain time it is Construed to be in presenti, Tho' not payable till a future Day, and in that Case, if the Party die before the time it shall go to the Ex'or.
Which the Lord Keeper in the Case of the Lady & Lord Pawlet 1. Vern. 321. 1685. says is a Settled point in the Law But when it is given When a Person comes of age, or if he comes of age it is otherwise Except where Interest is to be paid in the mean time and for that reason it shall vest immediately in that Case As in the Case of Cave and Cave 2. Vern. 50S. Stapleton and Chule ib. 673. Collins and Metcalf 1. Vern. 462. So Decreed upon the Circumstance of carrying Interest
But when a Legacy is given out of Land at a certain time or to be paid at a certain time and the Legatee dies before the time in either Case the Legacy shall be sunk for the benefit of the Heir Because there the Civil Law has nothing to do This appears in the Case of the Lord and Lady Pawlet above, and is
R106
VIRGINIA COLONIAL DECISIONS
Decreed in the following Cases, Yates vs Phettyplace 2. Vern. 416. The Tes'tor. having Mortgaged his Lands Directs some Lease- hold and Personal Estate to be applyed for the payment of his Debts and Legacies And if his Personal Estate shou'd be applied to pay off his Mortgage the same shou'd be kept on foot to make good his Daughters Portion, And thereby Devised to his Daugh- ter 3000£. to be paid at 21. or Marriage with Content
[213] The Daughter died at 6 years old, her Mother Took out Adm'on and sued for the 3000£. But the Lord Keeper Wright Dismissed the Bill and Declared that the Devise being at 21. or Marriage, with Consent, it did not vest, but was Contingent And say'd that a Devise at 21. or to be paid at 21. was the same thing, and the Intention the same and the Distinction between the two Cases taken by Swinburn and Godolphin, he looked upon with't a difference and that the Authorities they Cited did not come up to what they laid down.
1S. P. is so determined by the Master of the Rolls in the Case of Smith and Smith 2. Vern. 92. and the Case of Carter & Bletso ib. 617. 1708. Where the Tes'tor directed that his Sons shou'd pay out of his Lands 2006. to his Daughter at the age of 21. and she died before The Lord Chancel'r Cowper Decreed that there was no vesting Clause in the Will, and the Direction to pay at 21. vests nothing and she died before, it never arises
In the Case of Beatman and Roach 11. God. 1. mi. [?] Mod. Cases in Equity 106. The Lord Chancellor sayes it is a standing Rule of the Court, That where a Legacy is given out of Lands there is no difference Whether it be given at a Certain time or to be paid at a certain time, for in both Cases, if the Party die before, the Legacy is lost, but it is otherwise when the Legacy is to be paid out of the Personal Estate, Yet one wou'd think that as the Testators Intention is to govern in both Cases, the same words ought always to be Construed to express the same Intent
But the reason for it it England seems to be good in respect to the Jurisdictions of the Spiritual Courts and the Court of Chancery Because it wou'd be very Inconvenient to have the same point decided Contrarily in the respective Courts, And that this is the Reason, appears very clearly from the Comment of a late Author in his Abridgment of the Chancery Cases 295. My observation upon this is, That the reason does not hold
"[I take S. P. to indicate SAME PRINCIPLE,-W. W. S.]
R107
SIR JOHN RANDOLPH'S REPORTS
in this Countery to keep up a groundless Distinction, Tho' in the pr'sent Case it is needless to Consider that matter because ither way it is a Clear Case against the Plt. So that it is very hard for me to conceive how the Plts. Case is to be distinguished from all others. If he found his Pretentions upon the word (paid) being made use of, that can avail little if the whole [214] Will be taken together. The Case in Vern. the 2. 617. above mentioned is full answer to every thing that can be say'd upon that word And the Case of Onslow and South Reported in the Abridgment of Cha. Cases. 295. is as strong to the same purpose The Tes'tor. being possessed of a Personal Estate part in Jamaica and part in England made Ex'ors. in Jamaica and in England, and De- vised to I. S. now under the Custody of R. D. the Sum of 20006. at the age of 21. to be paid by my Ex'ors. in England
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