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 14
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Answr. I shall not dispute but that the Rem'r limited to · Sam'l upon his death descended to his Bro'r W'm And I shall agree that W'm might devise this Rem'r & that it wou'd pass by [135] by the devise alone But as John the Devisee was heir of his Bro'r W'm he must take this Rem'r by descent & not by the devise
It is not indeed material how John took this Rem'r I agree that he was tenant in tail with the Rem'r in fee expectant And that he might have devised this Rem'r but this I conceive he has not done And therefore the same is descended upon the Lessor who is his heir
I have already observed that John Timsons Will is not found at large or referred to in the Case And therefore it must be taken to be as Stated & agreed to in the Case
The words of the Case are that he made his Will & thereby devised the premes in queon to the Deft. Anna Maria for life It is agreed that he left a. Son at his death who is since dead (but the Will I believe was made before he had a Son) The queon then is whether tenant in tail with the Rem'r in fee expectant having issue can devise in this manner.
The intent of the testor is to be considered By the devise as here stated he certainly intended to pass a present interest but that he could not do having issue at his death The Devise therefore is void
Vid. 1. Sal. 233. 1 Raym'd 523. Badger & Loyd.
The Act of the 9. Ann. Says No Estates tail shall be cut off, avoided or defeated by any ways or means whatsoever but by Act of Assembly And every act and thing done towards cutting off, avoiding or defeating any Estate tail is thereby declared to be null & void -
But this devise would have avoided & defeated the Estate tail as there was issue at the testors death Therefore it is void
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A Devise void in its creation cannot be made good by matter ex post facto As if an Infant makes a Will & lives to be of Age but dies without a new publication the Will is void So of a feme covert if she does not republish after discoverture
Further tho' a Rem'r in fee may be devised Yet there must be apt words to pass it The testors intention to. pass such an interest must appear Here the intention appears quite other- wise The Devise as stated is of the premes in queon & to pass in presenti This can never be construed a Devise of a Rem'r expectant & to take effect in futuro As it must be to make the Devise good because it was certainly void ag'st the Devisors issue
But this question only respects the 150 a purchased by W'm Timson if the Devise in Sam'l Timsons Will be an Estate tail Judgmt. Fr Plt.
N. B. The Council for the Deft. only argued the first point which being adj'd ag'st the Deft. he would not argue the second The Obj. above was not mentioned
[136]
TAZEWELL & Ux'r vs. HARMANSON
In Ejectm't for 400 a of Land Upon the facts agreed the Case is
W'm Andrews seised in fee of 1000 a granted by Pat to one Taylor by Deed poll dated in 1664 for divers valuable cons's (but noné particularly expressed) demises leases & to farm lets the said premes to Tho's Harmonson for his and his wifes life And after their decease he gives grants enfeoffs & confirms the said Land to four Sons of Harmonson as follows to Thos. 300 a. to W'm 250 a. to John 250 a. & to Henry 200 a. And if old Harmonson & his wife decease before the Sons come of Age it shall be lawful for them at the age of 21. to enter upon their parts The same to have enjoy & possess as their own proper & real Estates in fee Simple to them & their heirs lawfully begotten. of their several & respective bodies forever
This is the substance of the Deed It is recorded but no livery appears to be made
Tho's Harmanson the fa'r enters & in 1667. obtained a pat for 800 a as Surplus Land within the bounds of the said Pat. to Taylor To hold to him & his heirs
After which he caused a Division of the 1000 a to be made
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among his four Sons according to the proportions given them by the Deed And being seised both of the 1000 & 800 a by his Will dated in 1696 he devises thus " I confirm to my four eldest " Sons the several Dividends of Land by me given to them & their heirs forever as the same was divided by Mr. Dan'l Eyre " which they have passed Bonds to each other to be content with " under the penalties & according to the Conditions there incerted."
And in another Clause he devises to the said Sons in fee "All "the remaining part of his Dividend which lies at the head of " the Land given them & was not divided with the rest to con- " tain their several Divisional lines as they now run to the head line &c.
The Lands mentioned in the first devise are the 1000 a Those mentioned in the second devise are the 800 a.
Tho's Harmanson died Henry one of the Sons entered into 200 a parcel of the 1000 a Allotted him by the Division & devised to him as aforesaid & into other 200 a contiguous parcel of the said 800 a. Which said 400 a. are the premes in queon
Henry Harmanson by his Will dated in 1709. devises the said premes (by the name of his Dwelling Plant.) to his wife for life After her death to the Child she the went with (if a
[Note by W. W. S .- There is a skip in the pagination in the book itself; copy is followed.]
[141] some thing as the Son He is willing they sho'd have their 'brothers Estate but if he won't consent to it Then he has pro- vided an equivalent viz. The Estate he had given to his Son
This is the conste. we contend for the Son would not make over his own Estate Therefore we say we are intitled to the equivalent But the Son says he will have his own Estate & the other too I must submit whether this can be reasonably thought the tes'tors meaning It is no obj. to say the Estate given the Son was only in Rem'r And that it was unreasonable he sho'd make over his Estate upon so remote an expectancy. The business is whether the testor has ordered it so If he has it must be submitted to It was certainly in the Sons election whether he would accept of this Rem'r upon the terms it was given And if he did not think it worth his while Ought he now because in event the Rem'r is come to take Place set up a title discharg'd of the terms or condition upon which it was given
Such reasoning has more of amusement than Argument It
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was I conceive as much the testors intention that his dauters sho'd have Johnsons Plant'n or as an equivalent an Estate in Rem'r in the dwell'g Plant'n as it was that the son sh'd have any estates in the dwell'g plantation If the Son will not let us have Johnsons Plant. how can this intent be satisfied unless we have the dwell'g Plant'n
Then nothing can be stronger to shew the testors intent that the Son sho'd have nothing in the dwelling Plant'n if he did not perform the Cond'n He not only limits it over to the dauter but adds " My Son to have no part or parcel of my Estate" He intended to oblige him under the penalty of losing all to make over the Land to his Sisters And since he has not done so What pretence of right can he have
It is no uncomon thing in Wills to construe the the Copulative (and) as the Desjunctive (Or) And so vice versa where such construction will best support the tes'tors meaning There are many Cases in the Books to this purpose
1 Sho. 322. sev'l Cases put of Cov't so constr. Saul & Gerrard Cro. El.
Now here in this proviso if the first Copulative (And) is read (Or) the Case will admit of no dispute for then it will run thus If the Child be a dauter Or if my Son should enjoy the dwell'g Plant'n there could not then possibly be a doubt but that if the Son by any Event came to enjoy the dwell'g Plant'n It sho'd go over if he did not make over the Land to his Sisters And as that from other Parts of the Will may be reasonably collected, to be the tes'tors meaning I must submit whether it be any forced interpretation to construe (And) here as a Disjunctive
Pol. 649. Price & Hunt.
This may appear the more reasonable upon this cons. that those words " If my Son sho'd enjoy the dwelling Plant'n &c." are no ways necessary but the sence & meaning of the tes'tor would be compleat without them Unless they were intended for the purpose we contend
The Sentence would run thus with't those words "If the "Child be a dauter And my Son sho'd not make over &c." then I give the dwell'g Plant'n to my Dauters.
[142] If the Child had been a dauter the Son would have enjoied · the dwell'g Plant'n as the next in Rem'r : The other words then "or if my Son sho'd enjoy &c." were not necessary unless it
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was to signify that if his Son by any event came to the dwell'g Plant'n it sho'd go over if he did not perform the Cond'n
If then it was the Testors intention that the Son sho'd have no Estate in the dwell'g Plant'n unless he made over the Land to his Sisters which he has not done. It will scarce be a queon I believe but the Lessor has a good title The Case will be then no more than this
Devise to A. for life Rem'r to B. in tail Rem'r to C. in tail upon condition that he do such an Act And if he fails then to D.
It cannot be doubted I think but that this Devise to D. is good by way of contingent Rem'r. It is a Rem'r to take effect upon this contingency in case the Son disturbed or did not make over the Land to the dauters But altho' this Rem'r was contin- gent in its creation Yet upon the Sons entring & aliening the Land it became vested for then the Contingency happened upon which it was to take effect And now the mesne Estates being spent the psons in Rem'r have undoubtedly a good title
Such a lim after a fee simple would be good tho' not as a Rem'r Yet as an Executory Devise as Fulmersons case cited in Pell & Brown Cro. Ja. 592. which was shortly thus a Devise to Sr. Edw. Cleer & his Wife & the heirs of Cleer upon Cond'n that they sho'd convey lands to the Ex'ors And if they failed their Estate sho'd cease & the Ex'ors should have the Land &c. And it was held that this Lim tho' after a fee was good by way of Executory Devise
Here the lim is after an Estate tail upon which a Rem'r may be limited And therefore it is good by way of contingent Rem'r Such a Rem'r is contrary to no rule of Law and when a man has a fee simple He has such an absolute power & dominion over his Estate that he may give it in any manner & under what Conditions restrictions & Lim he pleases so his disposition do not clash with the rules of Law And so I pray Judgm't for the Plt.
Vide 2 Mercer. 44.
This Case was compromised.
ANDERSON & Ux'r vs. LIGAN.
Tho's Ligan seised in fee of 200 a. of Land the moiety of which are the premes in queon & having issue 4 Sons W'm the eldest Rich'd his second & two others by his Will 10. Jan'ry
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1675. devises the same to his Son W'm " But in case [143] my "Son W'm die without Heirs Then my Land above expressed "to return to my Son Richard or the next surviving Son." I'm entered & was seised & had issue Thos. his eldest Son & W'm & by his Will 21. Jan'ry 1688 devised the said premes to his Sons Tho's & W'm in fee to be equally divided betw. them & died in 1689.
After his death his Widow occupied the whole till his Sons came of Age who respectively as they attained to 21. entered into the said land but made no division
Tho's the Son of W'm died in 1705. left issue a Son & 3 daugh- ters Phœbe Mary & Eliz'a The Son died an Infant in 1706. Mary is dead with't issue Eliz'a is one of the Lessors was born in 1701. & married the other Lessor in 1718.
Eliz'a & Phœbe or those claiming under them have been in quiet possion of part of the said 200 a. viz. 100 a. from the death of their Bro'r in 1706. And the Deft. who is William the Son of W'm from the Time of his Entry has been in possion of the rest but the Land in his possion has never been separated or divided from the other The Deft. is 59 y'rs old
Phœbe who married one Welthall with her said husband by deed 6. March 1720. conveied all her right to sd land by esti- mation 82 a. to Alex'a Marshall
The Lessors by Lease & Rel. 1 & 2. Jan'ry 1723. conveied to s'd Marshall 80 a. parcel of s'd land by the name of one third part of 247. a. :
But Marshall by deeds dated 6. March 1737. conveied back to Welthall & his wife & the Lessors all his title claim & interest to the land so conveied to him
The first queon is Whether the Devise in Tho's Ligans Will to his Son W'm be an Estate tail or a Fee If an Estate tail the Lessor Eliz'a is one of the Coheirs in tail viz. one of the dauters of Tho's who was eldest Son of W'm the first devisee And so she must have a clear title unless she is bar'd by the Act of Lim which must be the 2d queon & indeed the only one in this Case
As to the Conv. by the Lessor to Marshall It is void by the Act of 1710. Eliz'a being only Ten't in tail
But if not Marshall has reconveied, & so Eliz'a is remitted to her first Estate And 1. I think it can scarce be disputed but that W'm Ligan the Son of Tho's took an Estate tail by the Devise in Tho's Ligans Will
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By the first part of the Devise no Estate is limited but by what follows " In case my Son die with't heirs then to Rich'd." W'm has an Estate of Inheritance by implication But the queon is whether a fee or tail
The word heirs in a Will is often taken respectively that is to say for heirs special & not heirs gen'l where the tes'tors inten- tion appears to be so
Now when a man devises to one & his heirs & if he die with't heirs Rem'r over to another who is heir gen'l of the first Devisee, It is plain he cannot mean the heirs gen'l of the first Devisee because then the lim over would be idle & vain for the heir gen'l would take it by course of Law if the Devisee left no Children
[144] The Tes'tor then in such case must mean heirs of the body And so such a Devise by the apparent meaning & intent of the testor makes an Estate tail.
And so it has been adj'd in sev'l instances as
Webb & Herring 1. R. Abr. 836. 5. 3. Bul. 192. Devise to his Son Francis after the death of his Wife. And if his 3. dauters outlive their Mother & Francis & his heirs Then to them for life. Heirs here was held to be meant heirs of the body of Francis the dauters being his heirs gen'l & so Francis had an Estate tail
Braxton & Stone 3. Mod. 123. A man having 2. Sons devises to the eldest & if he die without heirs male Rem'r to the other Adj'd an Estate-tail in the Eldest
Nottingham & Jennings 1. Sal. 223. One having 3. Sons devises to the 2d & his heirs forever & for want of such heirs to his own right Heirs Adj'd the Testor must intend heirs of his body because the Son could not die with't heirs gen'l living heirs of the fa'r & so an Estate tail in the 2d Son
See also the Cases in 3. Danv. 180. & No. 6. ibid.
Here the Rem'r limited upon W'ms dying with't heirs is to his. Bro'r Rich'd who was his heir gen'l And so clearly an Estate tail
If this was an Estate tail in W'm the Plt. is Grandauter & one of the Coheirs in tail & so has a good title unless barr'd by the Act of Lim which is The 2d queon & in truth the only point in the case W'm the tenant in tail takes upon him to . devise to his two Sons Tho's & W'm in fee
After his death his wife occupied the whole till the Sons
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came of Age & then they respectively entered but never made any division Tho's the eldest Son died in 1705. left Issue a Son & 3 dauters The Son died in 1706. with't issue & one of the dauters Mary is dead with't issue
The Lessor Eliz'a is another of the dauters was born in 1701 & married in 1718 to the other Lessor
The Deft. who is W'm the Son of Tho's has been in possion of that Part of the 200 a. in dispute 38 years viz. from his Entry after he came of Age
1. I say we are within the saving Clause of the Act of 1710.
Or 2d if not we have been in possion as well as the Deft. no division or separation And so the Act of Lim can't run ag'st us
The Act of 1710 gives a right of Entry to persons then having a Right So that they enter within 20 yrs. from the time the right first accrued
And there is a proviso or saving Clause that if pr-sons [145] then having such right of Entry are under the disability of Non age Coverture &c. that they may Enter within 10 yrs after the dis- ability removed
When this Act was made the Lessor Eliz'a & her Sister Phœbe had a right of Entry as issue in tail of their father This right first accrued to them upon the death of their Brother in 1706 And so by the enacting part they ought to have entered within 20 yrs from that time viz. in 1726
But the Lessor Eliz'a was under Age when the Act was made & she married under age & has continued under Coverture ever since
The queon then is whether her right is not saved to her
Had she lived to be of age & then married I agree she must have been barr'd because the disability then would have been removed & she in a capacity to exert her right
But here before the first disability removed she falls under another equally within the saving Clause We contend then that by the Equity & Intendment of this Clause our right is preserved to Us
Suppose we had become Non compos before our full age. Surely we sho'd not be barr'd if we sued within time after recovery Why sho'd we then in this Case
We hope it will be the Courts Opinion that we are within the Equity & Intendment of the Proviso
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But if not we say 2. The Act of Lim cannot run ag'st us at all as this Case is circumstanced.
The Defts. Title is under a Devise of W'm the Ten't in tail his fa'r & our G'dfa'r. This Devise must be agreed to be void And so the Deft. had no right of Entry
It is found that our fa'r & the Deft. entered respectively as they came of Age but never made any division That the Lessor & her Sister & those claiming under them have been in quiet possession of part viz. 100 a. ever since their Bro'rs death in 1706 & the Deft. has been in possion of the rest but his part was never separated or divided from the other
Now by the Will of Wm. under which the Deft. claims no particular Part is given to him but the whole to be equally divided betw. the Lessors fa'r & him It can't therefore be say'd that under that devise he had a right to one part more than another And the possion both of Lessor & Deft. has con- tinued an undivided possion to this Day.
Now the rule of Law is Where two are in possion One that has right & another that has not the Law will adjudge the possion to be in him that has right Lit'1 701. Plowd. 233. b. s. p. 1. Sid. 385 s. p.
Here is an undivided Possion both in Lessor & Deft. And as the Deft. entered with't any title it is exactly the Case put by Littleton
If then the Law adjudges the possion in Us the Act of Lim cannot run ag'st us
[146] The Lessors are not above 7 or 8 yrs out of time from her full age She was not of Age till 1722 & had 10 yrs after viz. till 1732.
Here an Estate tail is to be defeated by possion And the Issue in tail under disability
Judgem't Fr. Deft. by the Opinion of
Lee Tayloe
Custis Lightfoot
Grymes
Digges Con.
Robinson
Byrd & the
Governor
Vide Needlers Argument page 33. [Not in same handwriting.]
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CORBIN US CHEW'S Adm'rs.
Debt upon bond And on Plene administravit pleaded two questions were made 1. Whether an Exec'r might retain for his own debt by simple contract ag't a Bond Cred'r. 2. Whether Judgm't upon simple contracts obtained since the Action bro't on the Bond may be pleaded or given in Evidence on Plene administravit ag't this Bond debt. for as to such Judgmt's or paiment of simple Contract-debts before Notice (by Action) of the Bond there can be no question but they may be pleaded ag't the Bond-debts Vid 1. Mod. 175. 3. Mod. 115. 1. Vent. 199. 2. Saund. 49. Vaugh. 94. 3. Lev. 113. FitzG. 77. 78. 2. And.
As to the 1. for the Deft. it was argued that an Ex'r may retain for his Debt by Simple Contract ag't a Bond Cred'r
It is a gen'l Rule that an Ex'r may retain for his own debt Wentw. Off. of Ex'r c. 12. tit. Debts by Specialty says this is to be understood where the Ex'r is of equal Dignity with the Cred'rs And puts a Case If the Testor be indebted to other Men by Judgm't Recognisance or Statute and to the Ex'r only by Specialty the Ex'r cannot prefer himself Which is true in the Case put But this proves not the Point in question w'ch is where the Ex'rs debt is by Simple Contract & the Cred'rs by Bond And there is a great difference between the Cases: For Ex'rs are bound to take notice of Judgments but not of Bonds as I shall shew presently. Wentworth's Opinion then is nothing to the Point And I will [147] confess I can find no judicial resolu- tion in the Books the solution of it must therefore depend upon the reason & nature of the thing From whence I take it to be clear y't the Ex'r may retain
The Authoritys are numberless that an Ex'r may pay a debt by simple Contract without Action before a debt by Specialty whereof he had no Notice Vid supra And this Notice must be by Action too 1. Mod. 175. Wentw. 144. If then he can pay a Cred'r it would be very hard & unreasonable if he cannot pay himself This would be to put him in a worse Condition than another Cred'r in the same circumstance and deprive him of the power of doing as much for himself as for a stranger w'ch is ag't Sense & Reason as well as ag't a rule of Law In æquali jure melior est conditio possidentis which by such means would be really inverted And the Ex'rs possess on would put him in a worse State viz. out of a possibility of obtaining a debt by Simple
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Contract before a debt due to another by Bond w'ch he might do if he was not Ex'r And as the only way he can pay himself is by retaining Doubtless he may well do it
I take the Law to be likewise clear that where a Suet is oom- menced ag't an Ex'r on a Specialty & afterwards another is bro't on a Simple Contract the Ex'r may lawfully confess this last Action And the Judgm't be pleaded in bar to the Action on the Specialty This I shall endeavour to prove presently If the Law be so which I shall suppose at present Is it not absurd to imagine an Ex'r has Power to prefer a Stranger but not him- self And therefore as he cannot have remedy by Action (for he cannot sue himself) the Law undoubtedly will give him an ade- quate remedy viz. a power to retain Otherwise his Extorship puts him in a worse State than he would be without which the Law could never intend (nor is there one Instance where the Law is so) being ag't the rule I just now mentioned
I conceive it then to be clear both from the principles of the Law as well from the reason & nature of the thing and I am sure highly consistent with natural justice that an Ex'r by simple contract may retain ag't a Bond Cred'r
2. Whether Judgm't obtained upon debts by simple contract since the Action bro't by the Plt. on his bond may be pleaded or given in Evidence ag't the Bond-debt
I will agree that to pay a debt by simple contract voluntarily before a debt by Obligation whereof the Ex'r had Notice is a Devastavit . But I conceive it is not so to satisfie a Judgm't obtained upon a Simple Contract before a debt by Obligation And I take it to be a settled Point in Law that where an Action is bro't ag't an Ex'r & pending that another is brought ag't him he may lawfully confess this last Action & the Judg't shall be a good bar to the first if there is no covin D. & Stud. 157. Wentw. 144. Mo. 678. Cro. El. 462. [148] And there is no difference where the first Action is for a debt by Specialty & the Q. upon simple contract, Keil. 74. is expressly in point And it is there sayed to be clear Law that when a judgm't is given ag't Extors such recovery is a good plea to all other Actions And 9. E. 4. 12. Ex'rs are chargeable to him who first has Judgm't And no dis- tinction made as to the debts Nor do I find that distinction taken in any of the Cases upon this Subject. Vid. 1. Sid. 21.
And Vaugh. 95. Edgcomb & Dee is express in the point that such Judgment upon simple contract tho' the Action was com-
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menced after another Action brought upon a Specialty may well be pleaded to the Action on the Specialty
The Law has left in the breast of the Ex'r to prefer one Cred'r before another in many Cases as Charity or other equitable motive may induce And an Ex'r in conscience ought not to withstand or delay a Suit if he thinks the Debt just of what nature soever it be There may & often is more Equity & Charity to pay a Debt by simple Contract than one upon Bond
Besides a Judgment is the Act of the Court & compulsory & binding upon the Ex'r And if it is no bar to other Actions he must pay it out of his own pocket
The Cases that I suppose will be shewed on the other Side will appear to be chiefly upon the point of paiment without Judgm't of Debts by Simple Contract after Notice of Debts by Specialty which undoubtedly the Ex'r ought not to do voluntarily but there is no Case (I speak within the Compass of my own Knowledge & Inquiry) where it is expressly resolved that a Judgm't may not be paid tho' obtained after Action commenced upon the Specialty And I take 9. E. 4. 12. Keil. 74. & Vaugh. 94. to be affirmative Resolutions in the Point which I conceive are more cogent & ought to be more regarded than 20 Cases which prove nothing but by way of inference And an express Resolu- tion ag't me I believe cannot be shewn. Post 223.
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