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. II > Part 10
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If it be objected that what Mr. Boush Swears is only his Opinion I answer it is something more he was the Writer of the Will And one who takes Words from the Mouth of another to commit to writing may from the way & manner of the party's expressing himself be a better judge of what he means & intends than any person can possibly be who reads the words afterw'ds And Boush says when he wrote the Will he did believe the Tes'tor intended no more than {th for Walkers Children So that this is certainly something more than a bare Opinion & I dare say will be considered as a strong circumstance at least to prove the Tes'tor's intention That the Writer of the Will at the time he wrote it apprehended the Tes'tors intention to be so
Thus we have not only the Evidence of the Writer of the Will but the other strong circumstances viz. The intention of the Tes'tor from the whole Scope of the Will The true rule for con- struing all Wills The inequality this will occasion contrary to the presumed rules of Affection
And on the other hand I dont know one Circumstance that can be offered on the other side to fav'r the construction they contend for There could be no inducement from the Circum-
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stances of the Children's father to provide so largely for them Mr. Walker is very well able to provide for his own Children The Children's Mother was dead & we [97] may rather suppose his Affection was lessened from that Circumstance There is no proof of extraordinary Affection to these Children And the truth is he conversed but little with Mr. Walker whereas the Plt. lived with him So that I apprehend they have nothing to rely upon but the Words And I conceive the words may very well receive the Construction I contend for. The Word Equally may very well import Equal according to the Relation of the sev'l Legatees Especially as he has not mentioned the Children's names but seems by the manner of the Expression to consider them as one P-son as the Representatives of their Mother
But if there is any doubt upon the words themselves The Testimony of the Writer The Scope of the Will & the other Cir- cumstances which have been observed sufficientiy & I conceive incontestably shew the Tes'tor's meaning.
P. the Deft. It was insisted that the word Equally could not be satisfied unless the Children had each of them a Share That it was the genuin construction & the Tes'tor could not have expressed himself in any other manner to give it them
That there was no difference between naming the Children & not That there were no Cases where parol proof or Circum- stances were admitted to influence Construction of a Will but to make certain a person or thing Cole & Rawlinson 1. Salk. 325. Cary & Bertie 2. Vern. 337. Rachfield & Careless Mo. Ca. L. & Eg. g. were cited
That there were Circumstances in their fav'r Tes'tor might intend a provision for his Nieces Children In case Walker married again The Tuckers had good fortunes from their father Uncertain what Walker might do for his Children
There were also cited these Cases Weld & Bradbury 2. Vern. 705 Devise to the Children of I. S. & T. N. who had neither of them any living at time of Devise or Tes'tor's death Adjudged Children born afterwards should take & that per Capita not per Stirpes.
Walsh & Walsh Ch. Ca. Abr. 249. A had three Brothers all died before him leaving several Children Adj'd Children should take per Capita not per Stirpes Because do not take by way of Repre- sentation but all as next of kin
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And a Case out of Swinburn where a Father & his Children were made Ex'ors & Residuary Legatees And held that each of the Children should have a Share
Et Vide Pres. chan: Warner v. Hone & Talbot, 251, Thomas v. Hole.
To which it was Answered
Admitting the word Equally ex vi termini imports that each shall have the same Part Yet here we are in the Case of a Will where the Intention is to govern without regard to the precise & strict Signification of the words And the q'n here is Whether the Tes'tor did not consider [98] Mr. Walkers Children collec- tively as representing their Mother In that view the word Equally may very well be satisfied by giving them a a 5th The Matter depends upon the meaning & intention of the Tes'tor See Skinner 182.
The Children not being particularly named is certainly an Argum't that the Testor considered them collectively tho' if they had been named it would have made but little in fav'r of their Argum't
It is strange it sh'd be say'd there are no Cases where parol proof is admitted but to make certain a person or thing After so many have been mentioned which prove the contrary viz. that it is admitted to explain a Tes'tor's meaning But admit- ting it to be so we are within the Distinction we are here en- deavouring to ascertain the person in some sort Cole & Rawlin- son & Cary & Bertie are upon a Devise of Lands where I agree parol proof is not admitted The reason of which is the Statute And in Rachfield & Careless it is only say'd no Evidence shall be admitted where the Will explains itself which admits that Evidence may be where the Will wants explanation And tho' such proof is not allowed to a Jury It is always allowed to the Court in Equity Ch. Ca. Abr. 230. in Notis.
The Circumstances relied on in their fav'r are forced & meerly conjectural & no great complim't to Mr. Walker as to Tuckers having good Fortunes That is not the Case of the Cookes but probably he intended to keep up his Name & family
Weld & Bradbury was cited I suppose because there happens to be the words Stirpes & Capita in it for it is nothing like this Case
The p'son to whose Children the Devise was had none living at the time of the Devise and therefore it was held an Executory
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Devise to such Children as they should afterwards have And the Children to take per Capita. There was nothing in the Case to shew he intended otherwise & without doubt in a general Devise to a Mans Children they shall take equally which is all the Case cited out of Swinburn prooves
Walsh v. Walsh is still less to the purpose The Quest. there was upon the Stat. of Dist. A man had three Brothers who all died before him & all left Children And it was held the Chil- dren sh'd take per Capita being all in equal degree of Relation There they did not take by Representation all their fathers being dead but if one had been living it had been otherwise
In the Case of Godwin v. Kinchens Ex'ors heard in this Court in April 1738 the Devise was thus " All the rest of my Estate I give to my Brother W'm Kinchen & my three sisters Eliza. Martha & Patience & James Godwin's 3 Children James Martha & Matthew. And it was held and so Decreed that Godwin's Children took collectively and had but a 5th.
Vide. 2. Will. 383. Blackler v. Webb seems contrary to this Case.
[99] And so in this Case after two Argum'ts it was decreed for the Plts. that Walker's Children took collectively & were intitled only to } among them
But note this Decree was reversed upon an Appeal And chiefly as I have been informed by reason of the Word (Parts) in the Lim over to the Surv'r of Walker's Children
BURWELL &c. vS. OGILBY &c. In Canc.
One Ogilby by his Will devised as follows " As to what relates " to my temporal Estate I appoint as my whole & sole Ex'or " my beloved Wife Item I desire all my lawful Debts be paid " after my funeral Charges Item I leave all Estate at the dis- " cretion of my Ex'x to be equally divided among my Children " born in Virg'a And that my Wife shall possess the House & " Lots during Widowhood but if she marries the House & Lots " to be sold & equally divided among all my said Children" There being a deficiency of p'sonal Assets to pay the Tes'tors debts The Cred'rs by simple Contract brought this Bill ag'st the Ex'trix & Children to subject the House & Lots devised above to the paiment of their debts
Barradall fr Plts. The Lands & Tenem'ts of a person dece'd are not subject by the Common Law to the paiment of debts by
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simple contract tho' they are to debts by specialty But as there is no foundation in natural Justice for this distinction And the Civil Law makes no difference between debts of the one sort & the other Nor even a Court of Equity in Cases of Bankrupcy & Meer Equity as Trusts &c. Therefore Equity is always ready to assist simple contract Cred'rs to subject the Lands to a satisfaction of their debts where the p'sonal Assets are deficient
If an Ex'or pays debts by Specialty out of the p'sonal Assets Equity will relieve the simple contract cred'rs & charge the Lands to the value of the Debts by Specialty paid by the Ex'or And so in Case of a Will the most liberal construction will be made to subject the Lands And this seems founded both in Charity & Justice for we ought charitably to suppose every Man intends to pay his Debts & tis certainly just & right that they should be paid
The words of the Will are " As to what relates to my tem- poral Estate I appoint my wife Ex'or Item I desire all my Debts may be paid after my funeral charges"
[100] The words temporal Estate include real & p'sonal Then immediately speaking of his debts is a plain indication he intended they should be paid out of his whole Estate He designed to provide for them in the first place.
Talb. 284. Tanner & Morse.
Then the Will goes on " I leave all my Estate to the discre- "tion of my Ex'trix to be equally divided among my Children & " that my wife shall possess the House & Lots during her " Widowhood but if she marries to be sold &c."
This Clause shews he intended his wife & Ex'trix should dis- pose of his Whole Estate & having provided for the paiment of his debts first it must be intended out of the Estate given to his Extrix
The very making a proviso for paim't of his debts imports an intent to subject his real Estate because p'sonal would be subject without
Cases of this sort frequent
Cloudsly & Pelham 1. Vern. 411. Devise of Lands to B. in tail Then reciting that he owed B. money devised to him all his p'sonal Estate willing him to pay his Debts Tho' the Clause as to paiment of Debts seemed only to relate to p'sonal Estate &
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the Lands were intailed Yet held that Lands were liable Alcock & Sparhawk 2. Vern. 228. A devises his Land to his Brother & Heir & makes him Ex'or & desires him to see his Will performed Lands held liable to debts
Beachcroft & Beachcroft 2. Vern. 690. I do by this my Will dispose of such Worldly Estate &c. first I will that all my Debts be paid
Trott & Vernon Abr. E. 198. 6. I will & devise that all my debts Legacies & funerals be paid & discharged in the first place Prec. Ch. 430. S. C. Hallon & Nicholl Talb. 110. s. p.
Lord Warrington & Lee Rep. Ch. & K. B. 39. As to all my worldly Estate &c. I give & dispose in manner following
Imprimis I will that all my Debts be discharged & paid
Harris & Ingleden cited in Case ult And as touching such Worldly Estate & my Debts being first yaid & satisfied I will & devise &c.
Bowdler & Smith Prec. Chanc. 264. In point
In all which Cases it was decreed that the Lands were liable to the paiment of the Testor's debts
The number of these Cases shew the concurr'd Opinion of many great men
The 2. first Cases turn upon all the Estate being devised to the Ex'or And then there is an implied Trust
[101] The latter 3 turn all upon this expression in the begin- ning " as to all my Worldly Estate " providing for his debts in the first place
We have the reasons of all these Cases 1. Tes'tor has given all to his Wife & Ex'trix, 2 he begins As to my temporal Estate 3. he provides for his debts in the first place.
In this Case it was decreed fr tot cur præter Randolph & Custis that the House & Lots should be sold to satisfie the Plts. Debts. And that the Sherif of the County should sell to the highest bidder & the Ex'trix & Heir make a Conveiance to the Purchasor
ANONIMUS. Vide.
A man marries a woman intitled to a distributive part of her Father's Estate & dies before distribution. Q. Whether this distributive part survives to the wife or shall go to the Adm'r of the husband
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The general rule of Law is that Things in Action do not vest in the husband by the marriage unless reduced to a possession during the coverture but survive to the Wife 1. Inst. 351. 6.
They must either be reduced to an actual posscon or there must be some act to attach the Intt. in the husband.
I cannot easily apprehend how the distributive part can be distinguished from any other debt duty or interest of the wife's It seems to be as much a thing in action as a Debt due by Bond or otherwise or a Legacy which [sic] must be admitted do not vest in the husband meerly by the marriage unless there be a Judgm't during the coverture or some other act to alter the property as a promise to the husband an assent to the legacy or the like
But even in the Case of a Judgm't at Law for the Debt or a Decree in Equity for the Legacy if the husband dies before Execution the benefit of the Judgm't or Decree survives to the wife & she shall have Execution & not the Executor of the husband 1. Ch. Ca. 27. Nanny & Martin 1. Ch. R. 233. S. C. for by the Judgm't the Debts attached in them jointly Carth. 415. Skin. 632. So that if the husband survives he shall have it If the Wife she shall have the benefit
In this Case then if there had been a recovery of the dis- tributive part by Decree & the husband had died before the Decree was satisfied The Wife would have had the benefit How much more so when there is no recovery or any Act to attach this Interest in the husband.
[102] Obj. Cary & Taylor 2. Vern. 302. A. Married B. the Daughter of J. S. who dies Intestate B. dies before distribu- tion A. also dies before distribution or Adm'con taken to his wife The Q. was whether the Adm'r of the husband or the Adm'r of the wife was intitled to B.'s distributive part of her father's Estate It was agreed in this Case that the distributive part was an Interest vested but the doubt was whether it was so vested as a legacy assented to that it should vest in the husband without taking Adm'con to his wife And it was argued for the husband's Adm'r (the Plt.) that since the Stat. for settling Intestates Estates the Adm'r is but in the nature of a Trustee & the taking Adm'con as the acceptance of a Trust & implies an Assent that the Estate should be distributed accord- ing to the Stat. & therefore the distributive Shares ought to be considered not only as a legacy but as a legacy assented to &
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consequently go to the husbands Adm'r This was the Coun- cil's Argum't but what the Decree was whether in fav'r of the husband's Adm'r or wife's does not appear by the Book But the Reporter adds at the End Tamen vide the decree By which manner of expression I sh'd judge the decree was rather ag'st the Argum't than in fav'r of it. However it must be allowed that it rem's uncertain how the determination was & therefore it can be no further an Authority than the reason of the Argu- m't may prevail
And I must own it does not appear to me to have any great force in it Thus far I agree that the distributive part ought to be considered as a legacy & consequently as an Int. imme- diately vested but why it should be considered as a Legacy assented to any more than every Legacy given by a Will I cannot comprehend for as to the Adm'r being in the nature of a Trustee I take an Ex'or to be so too and there is not only an implied Assent to perform the Will but he takes an Oath to do so too And therefore to me the Argum't is as strong for a legacy vesting in the husband as this distributive part Yet it seems admitted that it wolud not vest without the Ex'ors assent. I don't find that the point has been determined in any Case either before or since And there being no resolution in that Case it is no Authority nor indeed does it weigh with me at all for the reasons I have mentioned
Besides that Case differs from the present in this material circumstance that the right or interest accrued during the coverture & so the assent if it was to be implied must be intended to the husband But here the right or interest accrued to the wife before marriage And therefore this implied assent that is talked of must be to the wife & the right or interest could never attach in the [103] husband upon any such implied assent nor without some subsequent act nothing of which appears in this Case And so upon the matter this Case if it is an Authority is rather ag'st the Plt. than for him
Then in that Case too the wife died first & the husband sur- vived Here the wife is Survivor which makes a material differ- ence as I shall mention presently
Another Case that has been mentioned is Fouke & Lewen 1. Vern. 88. A man married a Citizens Dauter She died before 21. & before her husband had rece'd her Orphanage part He brings a Bill for it It was insisted that by the Custom of Lon-
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don the Share survived to the other Children But the Court say'd that tho' there might be such a Custom where an Orphan died before 21. unmarried Yet it could not take place where the Orphan married & the Int. of her Share vested in the Husband Vid. Prec. Chan. 537.
All that this Case proves is that an Orphans Share who mar- ries & dies before 21. does not survive to the other Children. There is indeed mention made of her Share vesting in the hus- band but whether it vested in such a manner as to go to him w'thout taking an Admcon to his wife is not say'd And I am of Opinion that it did not vest in him absolutely but that if the wife had survived she would have been intitled to it & not her husband's Adm'r according to Pheasants Case 1. Ch. Ca, 181. 2 Vern. 340. which as to this point was thus A man married an Orphan whose fortune was in the Court of Orphans he rece'd ab't £40 & no more & died having devised the residue The Q. was whether he could devise it or in other words whether it survived to the Wife And it was held that this Money was a Chose in action that it did not vest in the husband & therefore he could not devise it but it survived to the wife
Prec. Chanc. 209. s. p.
This is a resolution in point almost; At least I can discover no essential difference between this Case & that now before us The Q. made was whether the Money in the Chamber of London was to be considered as a debitum or a depositum If the latter it seems admitted that it would vest But it was held to be a Debitum because Trover would not lie for it as it would for a Depositum And it was not recoverable without an Action.
So I say the distributive part in the Case before us is Debitum & not Depositum Trover will not lie for it Nor can it be recovered but by Suit in Equity
This Case agrees best with ours in Circumstance Here the wife survived' In the other two Cases the husband was the Surv'r And in the latter Case he might have taken an Admcon to his wife for anything that appears The point of Survivor- ship may make a great difference There are many things husband & Wife have a joint [104] Interest in & which go to the Surv'r as a Decree or Judgm't for Money due in right of the wife
Upon the whole conclude that it must be a great absurdity
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in the Law to give this Int. to the husband without any Judgm't or Decree during the Coverture when if there had been such Judgm't or Decree & the husband had died before Ex'con the benefit would have survived to the wife
I therefore look upon this distributive Share as a Thing in action that did not vest meerly by the marriage There was no act during the Coverture to attach the Interest in the hus- band And so it must survive (ª) to the wife & not be subject to the husband's debts
(a) See Ld. Chancellor's Opin. Talb. 170.
Daeth & Baux 1. Mod. Ca. L. & Eq. 63. Motion for a prohi- bition to the Spiritual Court for suffering a feme Covert to sue singly upon the Stat. of Distributions Because it was properly so vested in the husband that it might be released by him But denied fr. Cur. for this was a Chose in action & so much the wifes that she shall have it by Survivorship
This was a Case in James City upon a Special Verdict And the Court gave Judgm't for the husband's Adm'r that the wife's distributive part vested in the husband, Much against my Opinion
OCTOBER COURT MDCCXL.
BROCK US. LYNE
Susanna Orrill seised in fee makes a Deed of Gift to her Son & Heir Orrill in tail. She dies leaving issue this Son & a Daugh- ter by her first husband & a Son by a second husband Orrill the Donee dies without issue The Lessor of the Plt. is his Sister & Heir & the Deft. is the Donor's Son by her second husband & is her Heir "The Q. is whether the Reversion which was expectant upon the determination of the Estate tail created by the Deed from S. Orrill to her Son Orrill upon the death of Orrill the Son descends to the heir of Orrill the Son who is the Plt. or to the Heir of the Donor S. Orrill who is the Deft. Barra- dall fr. Deft. It must be agreed on all hands that after the Deed from S. Orrill to her Son whereby she gives him only an Estate tail there was remaining in her a Reversion expectant [105] upon. the determination of that Estate tail
The Rev'n upon her death descended to her Son Orrill the
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Ten't in tail And that after her death he was Ten't in tail with the Rev'n in fee expectant all which I agree
Upon the death of Orrill the Son without issue whereby the Estate tail determined this Rev'n expectant they say descended to the Sister & heir of Orrill the Son. But I say it descended to the heir at Law of the Donor who is the Deft. This is the point between us It is a rule of Law that I hope will not be denied that whoever claims an Inheritance as Heir must make himself Heir to him who was last seised of the fee 3. Co. 41. 42. Co. Lit. 11. 6. 15. a.
Now Orrill the Son was never seized of the fee simple H was Ten't in tail & the fee simple was only expectant The person who was last seised of the fee was S. Orrill the Donor and who ever claims the Inheritance must make himself heir to her which the Plt. is not but the Deft. .
In 3. Co. 42. a. Ratcliff's Case It is expressly sayed he who claims a Rev'n or expectant as heir ought to make himself heir to him who made the Gift S. Orrill made the Gift the Deft. is her heir not the Plt.
In the rules which govern Descents we are not to look for solid reasons to support them It is enough if the Law is clear & settled The rules of Descent vary almost in every Country & perhaps we shall find few of them founded upon the principles of right reason or natural Justice The rules of the Civil & Common Law are widely different & the Lawyers of both sorts contend for the excellency of each The Inheritance descends to the Eldest Son by the Common Law whereas by the Civil Law I mean the Roman all the Children succeed to the Inherit- ance The Common Law utterly excludes the half Blood By the Roman Law they succeed in the Second Place In both these Instances the Civil Law seems to be preferrable More agreeable to nature & justice
1 Domat. 684 Ila. Ilist. Common Law, 214.
By the rules of Descent that obtain in the law of England the Plt. can't claim the Inheritance as heir to her Brother because her Brother never was seised or poss'ed of the fee simple
The rule of Law is possessio fratris de feodo simplici facit sororem esse hæredem The rule is mentioned by Lit. sect. 8. where speak- ing that the half blood can't Inherit he puts the Case of a man having a Son & a Daughter by one Venter & a Son by another
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If says he after the death of the father the elder Son enters & dies without issue the Inheritance shall descend to his Sister but if the elder Son dies before he enters Then it shall descend to the Bro'r of the half Blood as heir to his fa'r because says he it is possessio fratris &c.
Coke in commenting upon this Sect. & this rule of Possessio fratris [106] 1 Inst. 14. 15. puts sev'l Cases where the Sister can't inherit & they all turn upon this point where there is not an actual pos'sion in the Bro'r for it is that must make the Sister heir Possessio says he is quasi pedis positio And therefore it is held in Ratcliff's Case before mentioned that if there be not an actual possession Or if the Inheritance be such of which an actual pos'sion can't be gained per pedis positionem the half blood shall come in
Now the Inheritance here is a Rev'n expectant which it is impossible in nature could ever be reduced to an actual posses- sion per pedis positionem And therefore by the rules of Law the Sister can't inherit but it must descend to the heir of the Donor
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