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 13
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If it be objected that the tes'tor perhaps might think that by giving all his Lands & Goods to his Children in fee would pass I answer a tes'tors intention is to be collected from the words of his Will & not from suppositions & imaginary notions The Law gives a favourable interpretation to Wills upon a supposi- tion that they are made in a Mans last moments when he has not opportunity for good advice but we are not for this reason to make any construction that cannot be fairly collected from the words of the Will
When a Man gives all his Lands & Goods to his Children & sayes no more It is reasonable enough to suppose he intends them a fec in the Lands but as there are no words to manifest that intention they can take only an Estate for life And the Devise here is no more in effect It is true the word Heirs is not necessary to carry a fee as it is in a Deed but there must be some words as forever the word Assigns or the like to shew more than an Estate for life was intended In this Case the Devise is only to the Children to be equally divided And as those words do not enlarge the Estate there are no other words that can
I will mention one Case more where we have the words all & the words equally to be divided And yet the Devisees were Adj'd to have only an Estate for life. It is
Pettywood & Coke Cro. El. 53. 1. Leon. 129. 193. & 3. Lev. 180. s. c. which was thus a man seised of 3 Messes & having a wife & 3 Children Rob't Christian & Joan devised all his Messes to his wife for life Rem'r of one to Rob't & his Heirs of another to Christian & her Heirs & of the third to Joan & her heirs. And if any of them die without issue Then the other surviving shall have totam illam partem All that part betw. them to be equally divided
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Robt. died without issue Joan survived And it was held that she had only an Estate for life in Rob'ts part notwithstanding the words All & equally to be divided
I shall conclude with a known rule of Law that the Heir is to be favoured & especially in doubtful Cases We claim under the Heir The Case at best is but doubtful whether the tes'tor intended a fee to his Children And therefore I hope the Court will not disinherit the Heir whom the Ancestor is always pre- sumed to favour without a manifest intention appearing to the contrary
Judgm't affirmed viz that the Sons took a Fee
Vid Mercers Notes where Francis fr Appellee cited sev'l Cases.
NELSON VS. SEAYRES [126]
Case & declares that one Edw. Seayres deced. the Defts. fa'r being indebted to the Plt. in £.220. St. & £17 . .. 12 . . 2 Cur. the Deft on the 10. Apr. 1733. in cons. that the Plt. would trust the Defts. fa'r for more money & Goods promised to pay not only the said £220 St. & £17 . . 12 . . 2. Cur. but all other Sums the Defts. father should afterwards become indebted (in case his fa'r did not pay the same) when he the Deft. should be thereunto required And avers that trusting to this promise betw. the said 10. April & last of Jan'y he lent Money & sold Goods to Defts. fa'r amount'gto £.112 . . 17. St. & £316 . . 16 . . 6. Cur. besides the money he was before indebted & that Edw. Seayres in his life time did not pay $221-16-4. part of the said money of which the Plt. gave notice to the Deft. May 1. 1737.
The Deft. has pleaded the Act of Lim viz that the cause of Action did not arise within 5 years The Plt. has replied that it did
It is certainly more than five years since the promise was made but the Cause of Action did not atise on the promise The Deft. did not undertake to pay at all events but only if his fa'r did not of which he must have notice & a request be made to him before he could be liable
The Cause of Action here could not arise till notice & request for the Deft. could not know that his fa'r had not paid till such notice & request And I think it must be agreed that if Plt. had not alledged notice & request in his Decl. he could not have' maintained this Action
Notice is always necessary where the matter lies in the breast
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of the Plt. & not of the Deft. And if notice & request are necessary to support the Plts. Action the consequence is plain that he could have no cause of Action till such Notice & request
The Defts. undertaking in this Case is a special one To pay if his father did not The Plt. could not have brought an Action on this promise immediately nor till there was a failure by the fa'r The promise is what we call executory .Some- thing future is to happen or be done before any Cause of Action can arise
If a man promises for a val. cons. to pay a Sum of Money in case A & B are married Here the Cause of Action cannot arise till the Marr. And tho' the marr. be 20 yrs. after the promise the Action will lie
The Son in this Case gives the fa'r a gen'l Cred't he becomes his Security to pay for all Goods & money the fa'r shall take or [127] receive of the Plt. No time limited when the Goods or Money shall be received Upon the faith of this promise there are dealings for 2. or 3. yrs. Surely in any view it must be allowed that the cause of Action did not arise till the end of the dealings And we have sued within 3. yrs. from that time
It is a rule that the Stat. can be no bar till the Plts. cause of Action is compleat
The dog of A. killed some of B. sheep A. promised in case B. would not suc him for the Sheep to make him a recompence upon request Several yrs. after B. did request & A. refused to pay Upon which B. brought an Action A. pleaded the Act of Lim. it being more than 6 yrs. since the promise .. But held not good for the cause of Action did not arise till the request Shutford vs. Borough Godb. 437. adjd. And there sayed If a promise is made to pay £10. when a man marr. or comes from Rome tho' his marr. or return be 10 yrs. after he may have his Action for the Cause of Action is not compleat nor does arise till the Marr. or return
Assumpsit in cons. that the Plt. had d'd a Deed to the Deft. he promised to redeliver it upon request & alledges a request. Deft. pleaded he did not promise within 6 yrs. & upon Dem. plea held ill because Action did not arise on the prom but on the request 1. Lev. 48. Webb vs. Martin.
Assumpsit in cons. that the Plt. at Defts. request would receive A & B. into his House as Guests & Diet them the Deft. promised &c. The Deft. pleaded he did not assume within
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6 yrs. & upon Dem. held ill for it is not material when the prom was made but when the cause of Action arose 2. Sal. 422. Gould vs. Johnson
The Defts. Lawyer very well knew he could not plead Non ass. & has pleaded very properly but this case shews that where the duty arises on a cons. executory or future the Cause of Action does not arise from the prom but from the performa of what we call the meritorious cause
To apply the last Case the Action did not arise on the prom but either from the delivery of the Goods or the request
If from either of these we have sued within time
In Trover the Cause of Action does not arise on the Trover but from the Conversion And therefore if a Trover be before 6 yrs. & a Conversion afterw'ds And Action is brought within 6 yrs. after the Conversion the Stat. will not bar. Far. 99. Wortley Montague ag'st Lord Sandwich.
This Case was Compromised
OCTOBER COURT MDCCXLI. [128]
HILL & Ux'r. Ex'x CLOPTON VS. HENRY & Ux'r Adm'x Syme Appeal
The Plt. declares upon an Ind. Ass. for £2.2. 9. & 8371bs. Tob'o due by Intestate Syme to the Testator Clopton
The Deft. pleads that Clopton made his last Will & Test in Writing & appointed Syme one of his Ex'ors which said Win was proved as the Law directs to be the last Will of Clopton ill the Court of New Kent by pretext & reason whereof the said Syme was discharged of his said Debt And prays Judgment if Action
They also plead nil debet & non Ass. infra.5 annos. Upon these two last pleas there were issues & a Dem'r to the first
. Upon arguing the Dem'r the County Court was of Opinion that the plea was not sufficient to bar the Plts. Action And upon the issues the Jury found for the Plts. £9. 2. 3% dam's The Defts. have Appealed
The only question here is whether the Defts. plea be a good bar And I hope to shew it is not either for the matter or the manner of it The matter of the Plea is shortly this. That Plts. tes'tor made a Will & appointed Defts. Intest. one of his
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Ex'ors And that the Will was proved to be the Will of the Tes'tor in due form of Law.
It is insisted that this making the Intest. an Ex'or is a dis- charge of the Debt.
It is a common doctrine that where the Debtee makes his Debtor Ex'or the Debt is extinguished . But this rule is liable to several exceptions As 1. where the Ex'or dies before he proves the Will 2. Where the Exor refuses before the Ordinary For the rule of Law is founded on these reasons 1. that a man cannot sue himself 2. that the same hand being both to receive & pay it amounts to an Extinguishm't Which reasons do not hold where the Ex'or dies before he prooves the Will or where he refuses
The making the Debtor Ex'or amounts to paiment & a release but if the Debtor will not accept the Ex'orship it can have no operation for You cant force a man to accept a Rel. ag'st his Will per Holt Sal. 307.
Here it does not appear that Syme proved the Will or ever Administered the fact must be taken as it stands upon the pleadings It is only sayed that Syme was appointed an Ex'or & that the will was proved in due form but it is not sayed that Syme proved it. A Will may be proved per testes & yet the Ex'or refuse . If Syme did not prove the Will he was not the person intitled to receive & so falls not within the reason of the rule of a Debtee making his Debtor Ex'or amounting to a Rel.
[129] Obj. But here Syme was only an Ex'or with others And tho' it be not pleaded that the other Ex'or proved the Will it appears sufficiently by the Record the Plt. suing as Ex'trix. And where the Debtor & others are made Ex'ors & the other Ex'or proves the Will but the Debtor does not the Debt is extin- guished So it is if the Debtor refuse & die before the other Ex'ors for he might come in notwithstanding this refusal
All which must be admitted And if it appeared to the Court that the Will proved by the Plt. & the Will mentioned in the Plea wherein Svme was appointed Ex'or were the same the Argum't would be conclusive but I conceive it does not
This Case as I have sayed must be taken as it stands upon the pleadings The Plea is no more than that Clopton made a Will & Syme one of his Ex'ors & that that Will was proved
Now it will scarse be denied but that a Man may have two
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Wills & several Ex'ors Cur. Went. 12. Which appears by the Case of Kitchen & Bassett 2. Sal. 592.
It is not pleaded that the Will wherein Syme was appointed Ex'or was the same Wiil proved by the Plt. Or that it was proved by any other of the Ex'ors And if the Will was not proved by any other of the Ex'ors It is no Rel. or extinguishm't
When men will make use of such extraord'ry methods to avoid the paim't of a just debt it can't be thought hard to hold them to the greatest strictness in pleading Here the Deft should have craved Oyer of the Probate & then have pleaded that Syme & the Plt. were both made Ex'ors And then the matter would have appeared clearly & judicially to the Court
It is possible there might be two Wills The fact cannot now be enquired into but Your Honours will judge upon the plead- ings
It shews an extraordinary temper of litigiousness in the Deft. to contest this matter for even tho' the debt should not be recov- erable at Law Yet in Equity it will indisputably be subject to Cred'rs or even Legatees in some cases Here there are Creditors unsatisfied.
What is meant by the debts being extinguished is no more than that an Action will not lie to recover for it is Assets in the hands of the Ex'or & as such liable to the Tes'tors debts And that is the reason Holt says it amounts to paiment & a rel.
The Case of Wankford & Wankford 1. Sal. 299. where all the learning on this head is collected was no more than this The Obligee made the Obligon Exor who Adm'rd part of the Tes'tors Goods but never proved the Will & died The Action was brought ag'st the Heir of the Obligor who pleaded this matter And it was adjudged that [130] the debt was extinguished tho' the Will was not proved because the Ex'or had Adm'rd & so had put it out of his power to refuse
But here Syme never Administ'red.
Judgm't affirmed.
TIMSON VS. SCARBURG & Uxor
Sam'l Timson seised in fee of 800 a of Land called Vaulx Hall Plantation by his Will Jan'ry 8. 1694. devises thus " I give to, " my two Sons W'm & Sam'l all that tract of Land where I now "live comonly called Vaulx Hall Plantation to be equally
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"divided between them W'm to have the Mannor house & " Plant. into his half & Sam'l the Plant whereon Robert Rick- man now lives into his half to them & their Heirs forever but if it shall please God either of them shall die before they come of age or without issue lawfully begotten Then to the Survivor of them & their Heirs forever.
W'm & Sam'l entered & were severally seised of their moieties W'm lived till 21. & having issue 3 Sons W'm John & Sam'l & being seised of the premes devised to him & also of 150 a of Land adjoining which he had purchased (which said devised premes & 150 a are the premes in queon) by his Will Aug't 18. 1716. devised the premes in queon thus " I give to my Son W'm my " Dwelling house & part of my Land on Queens Creek (describ- " ing the boundaries) to him & his heirs lawfully begotten for- " ever Item I give to my Son John All the rest of my Land on "Queens Creek to him & his heirs lawfully begotten forever "But if it should please God to take are [sic] or one of them "out of this World before they come of Age or have no Son " Then to the Surv'r of these two or his Eldest Son" Then he devises other Lands to his Son Sam'l & then follows this Clause " If neither W'm nor John leave no Son behind them then my " Son Sam'l to have it all to his Heirs." W'm & John the Sons & Devisees entered & were seised & then Sam'l their Brother died w'thout issue
W'm lived to be 21. but died without issue & by his Will 26. April 1726, devised his part to his Brother John in tail male And in the Conclusion of his Will there is this Clause. " Item I "give the Remainder of my Estate Lands & Interest to my " Bro'r John Timson & his Heirs forever"
John Timson lived to be 21. had issue a Son W'm & by his Will [131] devised to the Defts. Wife for life This Will is not found at large as the others are
W'm the Son of John died an Infant without issue. The Lessor is Sam'l the Son of Sam'l Timson the first tes'tor & is his Heir at Law. He is also Heir at Law of W'm Timson the fa'r & of his 3. Sons W'm John & Sam'l And so is the male heir of the whole family
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The pedigree stands thus
Sam'1 Timson
W'm
Sam'1
Mary
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John dead sans
Lessor
issue
W'm died in 1726
John
Sam'1 dead sans issue
sans issue
William
dead sans issue
In this Case there must of necessity be two queons made One upon the Will of Sam'l Timson which respects the Moiety of Vaulx Hall plant. viz. 400 a of the premes in question And the other upon the Will of W'm Timson his Son which may either respect the whole premes or only the 150 a purchased by W'm Timson as the determination happens to be upon Sam'l Timsons Will
The first question then is upon Sam'l Timson's Will What Estate his Sons Wm. & Sam'l take in the Lands called Vaulx Hall Plant. devised to them The devise is to this purpose " I give to my 2 Sons W'm & Sam'l Vaulx Hall Plant to them & "their Heirs forever but if it shall plaese God either of them should die before they come of Age or without issue lawfully begotten Then to the Surv'r of them & their Heirs forever."
The question is Whether W'm & Sam'l took an Estate tail or a fee simple upon the Contingency of living till 21. or having issue If an Estate tail W'm is dead without issue & Sam'l who survived is the Lessor & has undoubtedly a good title If a contingent fee then the Lessor can have no title under this Will
I shall be very short in speaking to this question because this Court very lately in April 1739. upon the same words as are in this Devise in another Clause of the same Will adjd. that such words make an Estate tail I was then on the other side of the question & laboured to persuade your Honours to be of Opin. that it was a contingent fee but in vain Whether the Gent on the other side may succeed better I can't tell
The Case in which this Opin. was given was betw. the now Lessor(a) Timson & Robertson. It was upon a Devise (a) See the Case ante 81.
in the Will of Sam'l Timson in these words "I give & " bequeath to my Son John 200 a of Land to him & his heirs "forever but if it shall please God he shall die under Age
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"or without issue then to my dauter Mary & her [132] heirs" John lived till 21. but died without issue The Lessor claimed as heir of John & if John had taken a contingent fee by the Devise would have had a good title but it was adj'd to be an Estate tail And so Mary the dauter had a good Title By the Rem'r over
In the present Devise the words " to my Sons W'm & Sam'l & " their heirs but if either of them die before they come of age "or without issue Then to the Surv'r & their heirs." There is no difference betw. the words of one Devise & the other only in one it is if they die under Age & in the other if they die before they come of Age which are the same in sence The Lessor therefore hopes that the same words in the same Will will have the same construction now they make for his title as they were adj'd to have when they made ag'st his title
The words that we rely upon to make an Estate tail are "if either die before they come of age or without issue This word issue in a Will is always taken to mean heirs of the body And when ever it can be applied to the word heirs in any former part of the Will qualifies the generality of the term heirs & restrains it to Heirs of the body It is a common & known doctrine that if a devise be to one & his heirs & if he die with't issue Rem'r over that tho' the first words made a fee Yet the word issue that comes after shews that the testor did not intend heirs general in the first part of the Devise but only heirs of the body And so taking the testors meaning upon the whole Will it is plain an Estate tail was intended .Here the Devise is to W'm & Sam'l & their heirs & if either die before they come of Age or with't issue Rem'r over The word issue shews what heirs were meant in the first part of the Devise viz. heirs of the body. And your Hon'rs have adj'd that the words before they come of Age do not differ the case from a general devise of the kind
In Timson & Robertson the Case principally relied upon was Soul & Gerrard Cro. El. 525. which was thus A man devised to his Son & his heirs & if he die within age or without issue Rem'r over This was adjudged an Estate tail And it is to be sure a Case directly in point
There is also a later Case Tilly & Collier 2. Lev. 162. where the devise as to this purpose was shortly thus The Devisor had 3 dauters Susan Ann & Eliza. & devised his Lands to his wife till his heir came of Age. : And if Susan his heir die without heirs
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before 21. so that the Land fall to Ann Then he devises further These words " If Susan die without heirs before 21." it was held made an Estate tail in her & not a fee
[133] And so I shall leave this point hoping my Client will not be so unfortunate to have the same point adj'd ag'st him both ways
The next queon in this Case is What Estate W'm & John the Sons of W'm Timson took by the devise to them in their fa'rs Will and this question is necessary with respect to the 150 a which W'm Timson the fa'r purchased & which he has devised with his moiety of Vaulx Hall Plant. to his Sons Altho' he had only an Estate tail in Vaulx's And if he had a fee in Vaulx's Then this queon respects the whole premes as has been sayed
The devise in this W'm Timsons Will is thus " I give to my " Son W'm part of my Land at Queens Creek to him & his heirs " lawfully begotten forever I give to my Son John all the rest " of my Land at Queens Creek to him & his heirs lawfully be- " gotten forever But if it should please God to take are or one " of them out of this World before they come to Age or have " no Son" Then he devises lands to his Son Sam'l & adds If " neither W'm or John leave no Son behind them then my Son " Sam'l to have it all to his heirs"
Nothing can be clearer I think than that the testor intended the fee should rest in his Son Sam'l for tho' the first devise to W'm & John is to them and their Heirs Yet it is with the addition of those words lawfully begotten which in comon Specch are generally understood of heirs of the body Yet ad- mitting a fee simple would pass by these words Upon what follows there can be no doubt what heirs the testor meant in this part of the devise " If either die before they come to Age " or have no Son Then to the Surv'r or his eldest Son " The heirs meant are plainly the Sons of the Devisees or their heirs male for they are the same & not their heirs general
The words here are the same as in Sam'l Timsons Will Only Son instead of issue And the word Son is as much descriptive of heirs male as the word issue is of heirs of the body in general. If therefore the words in Sam'l Timsons Will make an Estate tail general The words here will make an Estate in tail male
But if there could arise a doubt on this part of the Will on account of the words before they come of Age Yet the last Clause seems to put the matter beyond all queon " If neither W'm or
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Jn'o leave no Son behind them then my Son Sam'l to have it all to his heirs The Rem'r to Sam'l is to take place when W'm & John are dead without Sons that is with't issue male
It will scarce be disputed that if a man devises to one & his heirs And if he leaves no Son Rem'r over that the Devisee has an Estate in tail male And that in effect is the devise here Son does certainly as strongly import heirs male as Issue does heir of the body in general
[134] In Bilfields Case cited by Hale in King & Melling 1. Vent. 231. the Devise was to A. & if he dies not having a Son then to remain to the heirs of the testor And adj'd that Son was nomen collectivum & that it was an intail
So in Milliner & Robinson Mo. 682 One devised to his Brother John & if he died having no Son then to his Bro'r W'm for life And if he died without issue having no Son Rem'r over It was held that John the first Devisee had an Estate tail
[Note by W. G.] As to these two cases see 9 Gratt. 222-232. Arg. (peor me) in Moore vs. Stones Ex's.
This Case is also in 1 Ro. Abr. 837. 12. but there the Devise is stated to be to the Wife for life & afterwds to the Son And if the Son dies without issue having no Son that another shall have it Held an Estate in tail male to the Son
But there can scarce want Cases to support so plain a point for what can a man mean by the word Son but heirs male & what are heirs male but Sons
So that I apprehend it to be extreamly clear that the testor W'm Timson intended only an Estate in tail male to his Sons W'm & John And that upon default of male heirs the Land sho'd go to his Son Sam'l in fee W'm & John are both dead with- out issue Sam'l is also dead & the Lessor is his heir.
Thus upon the Will of Sam'l Timson the Lessor seems to have a good title to Vaulx's Plant. But if that could be a doubt upon the Will of W'm Timson he has clearly a title not only to that but to the 150 a purchased by W'm Timson And so has a good title to the whole premes in question
And if W'm & John the Sons of W'm had only an Estate tail it may seem unnecessary to take any notice of their Wills W'm has taken upon him to devise his part to his Bro'r John in tail & John has taken upon him to devise the whole to the Defts. 'Wife but these Devises must be void if they had only Estates tail as I apprehend is extreamly clear
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Obj. Admitting that W'm & John the Sons of W'm Timson took only an Estate tail & that Sam'l had a Rem'r in fee This Rem r was vested in him & so upon his death descended to his heir who was his Bro'r W'm And W'm by his Will has devised this Rem'r to his Bro'r John by these Words " I give the Rem'r "of my Estate Lands & Interest to my Brother John & his " heirs " Then John being tenant in tail with the Rem'r in fee expectant might devise to the Deft.
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