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 31
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The Legatee died before 21. and the Lord Chancellor adjudged it a Lapsed Legacy If the Intent and the words of the Testor. and the Rule of Law in the like Case did not so strongly Concur ag't the Plts. Claim it might be worth while to Consider by what rule of Law or Equity he demands a Distributive share of this 1000£. before the time that the Child wou'd have been of age, had it lived which wou'd have happened in the Year 1742. for if it were a vested Legacy he is 9 years too soon with his Suit The Testors Intent is express that Legacy shoud not be paid before the Child attained 21. Years of age, and her Representa- tive cannot have another kind of right than she had That wou'd be Contrary to the rights of representation as it is directly against the words and Intent of the Will
Indeed if a Legacy be given to one to be paid at 21. and if he dies before, to another, and the first Legatee dies before, the first shall have the money immediately because the words of the Will may be so construed But there is no Instance to be given of an Ex'or. or Adm'r recovering a Legacy before the time the Person whom they Represent cou'd have recovered it
1. Vern. 199. Annonimus The Case of Cloberry & Sampson Cited where a Legacy was Devised to a Child, payable when 21. & he dies before, his Adm'r shall have it, but shall wait for it until the Child shou'd have been of age, Decreed by Lord Nottingham and Confirmed in the House of Lords But if the Legacy is payable with Interest the Adm'r shall have it pre- sently ibid.
So in the Case of Pupworth and Moor. 2. Vern. 283. Where a
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Legacy was Devised to I. S. to be paid at 23. and if he die before to A. B. [215] and I. S. died an Infant A. B. shall have it immediately because the Words and Intent of the Will seem to be so
And the difference is now settled in the Court of Chancery My Lord King Decreed it so in the Case of Landy and William Reported in Abridgm't of Cha. Cases 299. viz. Where such a Legacy is given over the Party shall have it immediately, but the Ex'r or Adm'r must wait till the Legatee wou'd have been of age A'o 1728.
But this Devise being to a Child in Ventre Sa mere admits of a farther Distinction, it is not good, but as a Contingent Exec- utory Devise and therefore cannot be construed to be a Debt in presenti (the Child being born two Months after her Fathers death) And then the Condition, if she lives to 21. must of neces- sity prevent its vesting till the Contingency was past
So upon the whole matter it is clear that the Bill ought to be dismissed And it was Dismissed by
Lee
ag't
Randolph
Tayloe
Custis
Digges
Byrd
Robinson
Blair
The Governor
And Col'o Grymes Declared he was of Opinion with the Majority of the Court
Hopkins's Argument for the Plt. was very Trifling and in- coherent Insisting upon Lord Keeper Wrights opinion in the Case of Yates and Phettyplace to be expressly for him, against the plain Sense of his Words All that he say'd worth answering was, That if the Posthumous Child had married under age and had Children & died before she attained the age of 21. It wou'd be very hard to Construe the Children out of the Legacy and the Construction now must be the same But it was Answered there was no necessity for her marrying before 21. and if she had, her Children must have Submitted to the misfortune
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SIR JOHN RANDOLPH'S REPORTS
[216] SWINEY US DANDRIDGE. In Chanc. Fr Deft.
The Case.
Wilson Roccow was possessed of a considerable Estate made his Will dated 26. of August 1713. wherein he gives to his Wife all his Personal Estate after payment of some Legacies inter alia. He gives to his God-Son Pasco Curle one hundred pounds at the age of 21. Years and to be brought up in England 2. Years at his Charge
The Wife married the Deft. Pasco Curle died before his age of 21. and the Plt. as his Adm'r demands the Legacy But I think upon the Reasons and Authorities in the Case of Nicholas & Burwell the Bill ought to be Dismissed, But there is a farther Reason from the different penning of the two Wills. The words of the Will connected are, After the payment of some Legacies he gives all to his Wife Then gives this Legacy at a time which never happened which I think clearly shews that the Wife was . to have all that the Legatees did not live to receive
And the Bill was Dism't by a great Majority of the Court
1IONES US LANGHORN. Detinue for Negroes Fr Deft.
The Case.
Mary Godwin being possessed of several Negroes by her Will disposed of them in this manner, " My Will is that after "my Debts and Legacies paid my Daughter Mary Rice shall " have the use of my whole Estate Real and Personal after she " comes to the age of Years, during her natural Life, " And if my Dau'ter shall leave Heirs lawfully begotten of " her Body, that those Heirs shall have my whole Estate &c.
She married Myres, & Myres and she by Deed Mortgaged the Negroes to the Plt. and had Issue 4. Children, and she is now married to the Deft. Langhorn and has four Children by him
The only Question is, Whether a Thing, of which the Wife has only the use may be Disposed of by the Husband, so as to bind the Wife [217] after his Death, For the Deed made by Husband and Wife, is the Deed of the Wife only during Coverture and shall not bind her after the death of her Husband, and I think the Negroes here, of which the Wife had only the use cou'd
'S. C. in W. G.'s Barradall 15. and printed in Jeff. 37. but not the same report. [Note by W. G.]
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only be sold for the Life of the Husband and after his death the Wife shall be restored to the use of them
When the use of a Thing is given to one for a Certain time & after that time to another, it is agreed the first hath only the Occupation and the other the property Bro. Abr. Title. Devise, Lord Hastings Case. Cro. Car. 343. Owen 33.
Now the bare Occupation without a property is a naked Possession which must follow the Person of the Wife, and vests nothing in any of her Husbands longer than the Coverture continues
My Lord Coke upon Littleton 351. Sayes that Marriage is an Absolute Gift of all Chattels Personal in the Wife's own Possession in her own right Except Things in Action and Goods in Auter droit, and where the property is not vested in the Wife, And as to Personal Goods, there is a Diversity he says worthy observations between a property & a bare Possession, for if Goods be bailed to the Wife, or if she finds them, this bare possession is not given to the Husband, So in the Case of an Annuity Granted to a Woman for Life, if her Husband Release it, it shall not bind her after his Death, Adjudged between Thompson and Butler Moor 522. And the reason must be, that in that Case the Wife has only a right to Receive the money at the End of every Year if she shou'd live, and this Money when received belongs to the Husband
But a right to receive Money upon the Contingency of a Person living so long is a very uncertain Interest and a mere possibility which is a Thing of that nature that the Husband can have no Power to dispose of for want of an Absolute property vid. Co. Litt. 352. ut Supra.
The Case of a Trust for the Wife is much stronger than this and that is held in the Court of Chancery not to vest in the Husband
A Feme Sole Assigned her Term in Trust for herself before Marriage, the Husband alone Mortgages the Term And it was Decreed that such Mortgage was not good and Admitted by the Court to be the Constant practice since 2. Elizabeth's time to set aside & frustrate all [218] Incumbrances and Acts done by the Husband with respect to the Wifes Term. in Trust for her, and that he cou'd neither charge nor Grant it. 1. Cha. Ca. 225. between Doyley and Peifull.
But I agree this point was otherways determined in the House
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of Lords in S'r Edward Turners Case 1. Vent. 7. and so ruled Since in many others, tho' against the Reason of the Thing upon the Lords Judgment 1. Vern. 18. 2. Vern. 270.
Yet the Reason given is, That a Trust is an Equitable Interest which the Husband may as well dispose of as a Legal Inter'st
Then there is nothing to intitle the Plt. to these Negroes unless they will derive a Right from the Deed of the Husband & Wife which I think can't bind the Wife after the Husbands death
The Deed I agree was the Deed of both during Coverture but lost its force when that was determined, unless she had done some Act in her Widowhood to Confirm it
Baron and Feme Acknowledge a Deed to be Inrolled, this does not bind the Feme because she is not Examined by Writ .. 10. Co. 43. Such Deed shall be Inrolled only for the Husband, but tho' inrolled for both it bindeth not, 1. Inst. 673.
So if Baron and Feme make a Lease of the Wifes Land rend'g Rent, it is good, during Coverture, but may be avoided by her after the Death of her Husband Cro. Ja. 417. Smallman and Agboran, but if she receives the Rent she confirms it Cro. Ja. 563. Or if her Second Husband before her entrey accepts the Rent the Lease is Confirmed Dyer 159.
But it will be Objected, that the Will including both Lands and Negroes the words will pass an Estate Tail in the Land and therefore the Absolute property in the Negroes must pass Answer The Intent of the Tes'tor. as well as the words give her Expressly no more than for Life See the Will makes a different Provision as to the Lands and Negroes
The word Heirs here shall be a word of Purchase and not of Limitation. Loddington & Keme 1. Salk. 224. S. C. they are a good Description of the Person intended to take Newman vs Barkham 1 Vern. 729. [219] Barradell gave up all the points, but insisted the use vested in the first Husband And
Tayloe & Lightfoot were of that Opinion Blair, Byrd, Custis, Randolph & Lee Contra.
So Judgment was given for the Defendant
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MCCARTY US FITZHUGH. In Chanc Fr Deft.
The Case.
The Deft. Married Mackarty's Daughter & became Indebted to him 200£. by Bond, He lived at the time of giving the Bond, in Westmorland, but afterwards removed into Stafford, McCarty by his Will gives all his Debts in Stafford to his Son Dennis and the residue of his Estate to the Complt. and two other Sons and makes the Deft. one of his Ex'ors
The End of the Bill against the Deft. is to have a proportionable part of the Debt as residuary Legatee
The Deft. in his Answer has sworn, That he rec'ed 200£. or the value of it in Negroes with his Wife and borrowed this 2916. for which he gave Bond which rested several Years without demand- Upon some Discourse between him and McCarty he told him he wou'd take care that shou'd never rise against him, or Trouble him and Rather than it shou'd he wou'd destroy it immediately, But the Bond was not Cancelled At other times he had Discourses with his Wife and others about this Bond, and tells them that Fitzhugh shall never be Troubled for that money. But say'd. I don't deliver up the Bond yet, it will keep him in Awe &c.
And before the Marriage he told Fitzhugh he loved this Daugh- ter as well as any other of his Daughters and he wou'd give her as much as any of them, and never was Displeased with her, Now in his Will he has given his other Daughters 500£. besides other Legacies and to his Daughter Fitzhugh he gives 2 Negroes of 40% value Sterling All which will not make up five hundred pounds which the Tes'tor. was Obliged to give and the Question is, Whether upon the Equty of this [220] Case the Plt. ought to be relieved
This Debt is at Law Extinguished by making the Deft. an Ex'or. because it suspended the Action And a Person's Action once Suspended is gone for ever, This appears in a great many Cases, Alston and Andrews, Hutt. 528. Dorchester and Webb. Cro. Car. 372. S'r W'm Jones 345. Salk. 303. Wankford & Wankford
The Tes'tor. was a Lawyer and without doubt knew it wou'd be so and that must be the Occasion of not Cancelling the Bond and the Reason why the Defts. Wife had no more given to her by the Will
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But then it will be said, that notwithstanding the Law is so, the Debt still subsists in Equity and shall be recovered by the residuary Legatees upon the Authority of the Case of Philips & Philips 1. Cha. Cases 292. Nicholas Philips made his Will and the Deft. his Ex'or. who was Debtor to him 4006. gave particular Legacies and the residue to the Plt. And the Question was Whether the Debt, being discharged in Law shou'd be accounted as part of the residue, there being no need of it to pay the Debts or Legacies particularly given. A difference was pressed between a Legatee & a Debtor, in which the Debt, tho' discharged shou'd be Assets and the Case of an Ex'or. who is in Effect Devisee of the Debt, but the Lord Chancellor disallowed the difference and Decreed the Debt to the Plt. but was say'd to be contrary to former Precedents
I admit the Equity of this Decree, and there are other In- stances where a Bond is extinguished at Law, and shall subsist in Equity particularly in the Case of Acton and Pierce 2 Vern. 480.
And the Reason is from an Implication of the Tes'tors Intent that the Debt shou'd be accounted a part of the residue by the Rules of Equity because of the Express Legacy vid. Salk. 303.
Tho it may be objected that we can't be let into this Evidence as it tends to Explain a Will and to change that Construction which by the Rules of Equity might be made upon the face of it
But it is a settled point that proof may be admitted to Shew the Testor's Intent in some Cases when it is only to oust an Implication or Rule of Equity.
[221] As in the Case of Lady Granville and the Dutchess of Branford, 2. Vern. 648. and Batchelor and Seale 2. Vern. 736. So· Collateral Proof is Admitted to make certain a Person or Thing, between Hodgson and Caldicot and Hodgson and Fitzh. 2. Vern. 593.
So when a Testor was Indebted to a Person and gave him a Legacy, parol proof was admitted as to his intention, whether the Legacy shou'd go in Satisfaction of the Debt So here 2. Vern. 594.
.
[End, as I conjecture, of Sir John Randolph's Reports, which begin p. 114 ante.] [Note by W. G.]
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I, W. W. Scott, Law Librarian of the State of Virginia, do hereby certify that I have carefully compared the foregoing pages with what is believed to be the original1 Manuscript Re- ports by Sir John Randolph, said Manuscript being the property of the Virginia Historical Society, and that the said pages except as otherwise indicated in a few instances where the Original Manuscript was mutilated or illegible are a true copy of the same.
Given under my hand this 12th day of April, 1909.
W W. Scott
As to which see Ante, p. 14 et seq. R T. B. ·
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TABLE OF CASES REPORTED BY SIR JOHN RANDOLPH
Page
ABBOT vs. ABBOT R115
Action of Trover; plea not guilty; demurrer to plea; judgment in former action dismissing suit, offered in bar; held no bar. ALLEN vs. STAFFORD R48
Action of ejectment; construction of will; whether estate tail; statute of limitations; saving because of infancy; bar of former judgment.
ARMISTEAD vs. SWINEY R97
Bill in chancery; construction of will; liability of husband for wife's devestavit of former husband's estate; where it was the second husband who wasted the goods; obligation of sureties on executor's bond.
BARRETT vs. GIBSON R70
Action upon the case under statute; liability of ware-house man for act of servant; law as to keeper of a Rolling-House.
BARRYMAN, etc., vs. COOPER, etc. R57
Bill in chancery ; marriage agreement of second husband to pro- vide for children of the first; legacies by second husband to wife on condition that she discharge the marriage agreement; she accepts legacies and marries third husband; bill to compel performance; so decreed.
BLACKGROVE vs. ADDISON R20
Action of ejectment; construction of a will; devise upon condi- tion precedent; effect of notice to purchaser; judgment for defendant.
BOOTH vs. DUDLEY R10
Action of ejectment; statute of limitations; rule requiring con- fession of lease, entry and ouster; effect of a warranty.
BURGESS ADMX. vs. CHICHESTER ADMR. R22
Bill in chancery ; devise of personal estate for life with remainder over; "first hath only the occupation and the others the prop- erty"; a double remainder void.
CHURCHILL vs. BLACKBURN R26
Appeal from County Court; information for a fine for violation of statute regulating planting of tobacco; the act construed; judgment reversed.
CHURCHILL ADS. MACHEN R30
Appeal from County Court; information for violation of tobacco act; objection for lack of sufficient description; judgment affirmed.
DENN vs. SMITH R50
Action of ejectment; plea of statute of limitations; deed of feme covert; acknowledgment on privy examination; effect of repeal of statute of limitations; changes in the statutes; savings in cases of infants and married women.
DIGGES vs. LILLY. R7
Action for death; form of declaration; plea of non assumpsit. EDMONDS vs. HUGHS R36
Action of detinue; gift of remainder interest in negroes, after estate for life, held good.
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EPPES vs. REDFORD
Page R74
Indebitatus assumpsit; averment and proof of consideration; promise of forbearance.
FLEMING vs. DIGGS R78
Action of case; judgment confessed while in custody; discharge by sheriff; whether debtor was "in execution"; liability of sheriff ; judgment for defendant.
FREEMAN et al. ADS. HURST ADMR. R56 Action of debt; plea covenants performed; case settled by compromise.
GODDIN vs. MORRIS & UX, etc. R80
Bill in chancery ; suit for an account; complications from various marriages and resulting liabilities; right to increase of negroes; charge of "combination and contrivance"; decree for the plain- tiff.
, GOODRIGHT vs. BATSON R65
Appeal from County Court; construction of a will in action of ejectment; conditional estate; questions of repugnancy; breach of conditions.
GRAVES vs. BOYD R45
Bill in chancery for specific execution of contract to convey land; question of "a very hard and unreasonable Bargain"; specific performance decreed.
HARRISON vs. BLAIR R54
Action of assumpsit; non assumpsit and statute of limitations; effect of repealed act which was in force when plea pleaded; held act no defence.
JONES vs. LANGHORN R109
Action of detinue; gifts of negroes for life; mortgage of negroes by life tenant and husband; death of husband and second mar- riage; effect of mortgage after first husband's death; words of purchase and limitation; held mortgage did not bind wife after first husband's death; judgment for defendant.
LAWSON vs. CONNOR R68
Action of ejectment; grant for life of grantee with right of rever- sion and subsequent grants; one moiety conveyed to son who died in father's lifetime without issue; question whether any- thing passed by deed to son; grant of estate to commence in future without intermediate estate; judgment for the defendant. LEGAN & VANSE vs. LATANY R39
Action of ejectment; facts agreed; effect of devise in fee in one clause of will and conditional estate in subsequent clause; marriage of grantee and conveyance of land; death of grantee and devise by will; question whether first devisee had estate in fee or estate tail; held an estate in fee.
LIGHTFOOT vs. LIGHTFOOT R84
Bill in chancery; devise of land and personalty to son with gift to brother in case son dies without male issue; with provision in that event to daughter of son, or if none, then for testator's own daughter; personal estate insufficient to pay specific legacy ; son dies in childhood; suit for account of personal estate and profits of land and negroes and for legacy and provision for daughter; decree for the defendant.
MARKS vs. DUNN R44
Action of ejectment; devise of lands to be sold; whether proceeds of sale are assets in ex'ors hands; title of the purchaser in such case, held purchaser takes the land but heir has remedy against ex'or if there were personal assets to pay the debts.
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TABLE OF CASES
MARSTON vs. PARISH
Page R35
Action of detinue; bequest of negroes and other personalty to wife and children, with right of widow to keep children's shares until they came of age; negroes had children; widow marries; second husband bequeathes negroes to child of which wife sup- posed to be enceinte; residue of estate to wife; widow proved not to be with child and married a third time; detinue by heir of second husband for negroes; held that five of the six negroes sued for belonged to third husband, but plaintiff entitled to judgment for the one that belonged to second husband. McCARTY vs. FITZHUGH .. R112 Bill in chancery; son-in-law indebted by bondin 200{ to father- in-law; latter lived at time bond given in Westmoreland Co., but afterwards moved to Stafford; by will gave all debts due to him in Stafford to his son and residue of his estate to his son- in-law and two other sons; bill by son to have proportionate part of his debt as residuary legatee; effect on debt of making the debtor an ex'or .; rule in equity; proof of intention.
MEEKINS vs. BURWELL R92. Action of ejectment; construction of will; whether estate in fee simple or entailed.
MEEKINS & VADIN vs. BURWELL et als. R15 Appeal from County Court; action of ejectment; special ver- dict; in uncertainty preference given to fee simple estate; the estate in this case; judgment reversed.
MUTLOW vs. BALLARD R9
Action of case for slander; actionable words; the innuendo.
NICHOLAS & UX vs. BURWELL EXR. R102
Bill in chancery; gift to child with which wife was pregnant; conditions of gift; codicil; after born child lived but two months; widow remarried; bill for distributive share of legacy to posthu- mous child; bill dismissed by a divided court.
POWELL vs. FARREL R55
Appeal from County Court; action of ejectment and special ver- dict; judgment but no damages assessed; motion to set aside judgment, but it was affirmed.
ROSS EXOR. vs. COOKE et al. R42
Plea of infancy followed by plea in abatement; demurrer; (record illegible but see same case in Barradall's reports Post MSS. 128 there entitled Rose Exor. Bagg vs. Cooke et als. R. T. B.).
SMITH vs. BROWN R1
Action of trespass; property to be charged in declaration; goods damaged need not be valued; civil action lies although act complained of be also a felony.
SWINEY vs. DANDRIDGE . R 109
Bill in chancery; devise to wife and legacy to god-son; widow marries the boy who died under age; she sues for the legacy, but fails.
THORNTON vs. BUCKNER R30
Bill in chancery; title to land; issue out of chancery.
THURSTON vs. PRATT R63
Appeal from County Court; action of ejectment; the statute of limitations; effect of ouster and disseisin; coparceners.
TUCKER vs. SWEENEY R39
Appeal from County Court; increase of slaves after owner's death may be taken in execution for his debt.
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Page R77
WAUGH vs. BOGG
Appeal from County Court; action of indebitatus assumpsit; pleas non assumpsit and statute of limitations; demurrer to second plea; writ of enquiry and damages assessed; objection that damages excessive and new writ asked and awarded; reversed on appeal.
WAUGHOP vs. TATE R76
Appeal from County Court; action of detinue; deed by infant for negroes and will same day not mentioning them; deed held good as a codicil to the will; an infant not being competent to make a deed but if eighteen years old competent to make a will. (Randolph had advised against this view and says "I believe any lawyer in the world would have given the same opinion.")
WILLARD vs. PERRY R72
Appeal from County Court; action of indebitatus assnmpsit; grant to man and his wife with restriction against sale of land without consent of grantor; indenture not sealed by wife and not recorded; wife devised the land during during her life for yearly rent; original grantor entered and ousted lessee; question of the validity of the lease; wife sued for rent in County Court and judgment given her; on appeal reversed.
WADDY vs. STURMAN et al. R61
Bill in chancery; will of personal estate; exor. paid the debts and took negroes and increase as his own property without sale of them; the effect of the statute of limitations in equity; held that legatees to whom estate was delivered should be made parties to the bill.
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