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 20
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Here it will be proper to consider the Reason why the Deed of a feme covert is void It is because the Law supposes she has no Will of her own but is sub potestate viri Et cum in vita con- tradicere non potest Hob. 225. So that it is a Law introduced in Favour of Women to secure their Inheritance that they may not be compelled by their Husbands to alien them ag't their Will
Let us now consider how far this Reason can influence the present Case. Here is an Agreem't between Husband & Wife upon Marriage whereby a Power is given the Wife for her Benefit to alien the Land without the Husband which Power she executes And to obviate the Objection that she did this thro' her Hus- bands Influence it appears they lived separate & she was even privately examined Thus the Reason why the Law adjudges the Deeds of Femes covert void does not subsist in the present Case Et cessante ratione legis cessat ipsa lex
In this Case the Husband could not controul the Wife in making this Deed A Court of Equity would have compelled him to perform the Articles if he had attempted it And there do not want Instances in the Law where the Act & Deed of a feme covert alone without her Husband is good & shall bind her & her Heirs If a Fine be levied by her without her Husband this shall bind if the Husband avoid it not during the Coverture 7. Rep. 8. Hob. 221. Husband & Wife levy a Fine of the Wifes Land to Uses with a Proviso that they at any Time during their Lives may make Leases the Wife during the Coverture made a Lease & adjudged good by Virtue of the Proviso Godb. 327. It is a known Rule that a feme covert cannot make a Will Yet if the Husband upon the Marriage covenants that she may make a Will Any Disposition in Pursuance of that Power will be good tho' perhaps not strictly as a Will
The Inference to be drawn from these Cases is clearly this that tho' the Act or Deed of a feme covert simply taken may be void Yet the Consent of the Husband either tacit or express
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will make it good & binding upon her & her Heirs And there is both these concurring in the present Case the express Consent by the [196] Articles the tacit by not avoiding or endeavouring to avoid the Deeds during the Coverture Therefore I hope they are binding upon Mary Belfield & her Heirs And if so Then the next Thing to be enquired is
2. Whether a Reversion expectant &c. can be conveied & will pass by Deeds of Lease & Release And that such Reversion may be conveied I believe no Man will dispute 2. Rep. 51. a. Wiscots Case Yel. 149. Sal. 233. Badger & Loyd. 6. Rep. 155. Neither can there be any Question but it will pass by Lease & Rel. 2. Lill. Abr. 483.
Before the Statute 27. H. 8. of Uses a Reversion would not pass by Deed without Attornment but Attornment is not neces- sary upon any Conveiance within that Statute and a Reversion may well pass without it for the Statute transfers the Possession to the Use 1. Inst. 309. b. Now a Lease & Rel. being a Convei- ance within the Statute 2. Mod. 250. All the Estate of the Grantors whether in Possession or Reversion was transferred & did well pass to the Grantees The Title the Plt. sets up is by Descent from Mary Belfield one of the Grantors which Descent is broke & prevented by these Deeds And is a Bar to any such Claim. But if these Deeds cannot operate so as to convey any Estate from Mary Belfield Yet
3. It may be taken as an Explanation of the first Grant from Belfield & his Wife to Mountjoy to shew which were the Lands intended to pass in Fee by the said first Grant The Premises in that 1. Grant have no certain Description or Boundaries but in general Terms 1600 Acres more or less the remaining Part of such a Pat. It was supposed there was then so much of that Pat. unsold and upon that Supposition 1000 A. are limitted in Tail & 600 in Fee but no certain Boundaries to either Upon this Grant it was reasonable to conclude the Grantee had 600 A. in Fee So Woodbridge thought & in Order to be as secure as possible & to take away all Objection that the Land he pur- chased was Part of the 1000 a. intailed he gets the 600 a. surveied marked and bounded & procures Mary. Belfield the 1. Grantee to join in the Conveiance with Mountjoy the Grantee which he thought would be a sufficient Declaration which was the Land intended to pass in Fee by the 1. Grant
If these Deeds cannot operate so as to pass an Estate out of
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Mary Belfield Unless they take Effect in this Manner as an Explanation of the first they can have no Operation at all as to Mary The Consequence of which will be that an honest Purchas- or who acted with as much Caution as a Man well [197] could must lose his Land & be without any Remedy for his Money for Mountjoy is dead insolvent But I hope the Court rather than suffer such a Piece of Hardship & Injustice will support the Deed & make it effectual one Way or the other Judges will & ought to do every Thing to assist honest Purchasors And rather than a Deed shall have no Operation are even subtile in inventing Reasons to support them Ut res Magis valeat quam pereat And if the Court is of Opinion that the 600 A. conveied to Woodbridge were the Premises intended to pass in Fee by the 1. Grant Then we have a good Title under Tho's Mountjoy But if it is taken to be Part of the Land intailed Then I say
4. That the Warranty of Thomas the Ten't in Tail descending upon the Plt. who is Heir to Mary the Donor will bar the Plt. of his Reversion This is a Point well known & settled There are 3. kinds of Warranties, lineal, collateral & that commences by Disseisin Lit. s. 697. A Warranty is called lineal not in Re- spect to the Warranty but the Title of the Land & is defined by Lit. s. 703. to be where the Land would have descended from the Person making the Warranty if that Warranty had not inter- vened And so ex opposito a collateral Warranty is where the. Land could not descend from the Person making the Warranty nor the Heir claiming the Land by any Possibility convey his Title from him As to Warranties that commence by Disseisin we have nothing to do in this Dispute
At the Common Law all Warranties except such as commenced by Disseisin bound the Heirs of those who made them & were a Bar to such Heirs to claim any Thing in the Tenements to which the Warranties were annexed Lit. s. 697. And so I appre- hend they do still unless they are restrained by some Stat.
The 1. Stat. that restrains Warranties is Glouc. c. 3. which enacts that the Alienation of Ten't by the Curtesie with Warranty shall be no Bar to the Issue Unless Assets in Fee simple descend to the Issue from the Father The next is Weston. 2. 1. which restrains the Warranty of Ten't in tail from barring the Issue in tail And it must be this Statute if any that restrains the War- ranty from barring in this Case But that I conceive it does not for it does not extend to restrain the Warranty from barring
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those in Reversion or Remainder and the Plt. claims in Reversion The Reason given for this Distinction is because the Warranty is lineal to the Issue, but to those in Rem'r or Reversion collat- eral And there is no Statute (in Force here) that restrains collateral Warranties tho' it had been often attempted in Sir E. Coke's Time as he says 1. Inst. 373. And since his Time a Statute has been [198] made 4 & 5 Ann. 16. that restrains some collateral Warranties but it is not in Force here or if it was does not reach this Case as I shall shew presently. Sir E. Cokes Opinion is expressly in Point 1. Inst. 374. b. that the Warranty of Ten't in Tail will bar those in Reversion or Rem'r notwith- standing the Stat. Weston. 2. and is indeed a known & settled Point of Law Mo. 96.
Nor is there one Authority ag't it but an Argument in Vaugh. 365. Bole a Horton In which Case the Court was divided & no Judgm't given Nor do I know of any Case since that favours that Opinion But the Distinction of lineal & collateral War- ranties w'ch Vaugh. would explode is still kept up as appears from the sd. Stat. 4 & 5. Ann. which as I sayed restrains some collateral Warranties viz of a Tenant for Life & those who have not Estate of Inheritance in Possession The Words are these
Now this Statute if in Force here would not reach our Case because Mountjoy who made the Warranty had an Estate of Inheritance in Possion viz. an Estate tail And so such a Warranty as this is would bind in England being left as at the Common Law unrestrained by any Statute Consequently it must bind here And then the Plt. is barred by it to claim any Thing in Reversion . Obj. this Warranty will not bar because the Re- version was not divested or put to a Right before or at the Time the Warranty was made 10. Rep. 96. 97. Seymors Case The Lease & Rel. is a Conveiance upon the Statute of Uses And no such Conveiance will make a Discontinuance Only so much passes as the Grantor may lawfully pass And so the Reversion is not touched or displaced 10. Rep. supra. 1. Bul. 162. 3. Leon. 16. 9. Rep. 106. a. b. Consequently the Plt. may lawfully enter And wherever there is a right of Entry no Warranty will bar 2. Lill. Abr. 684: Jacob. verb. Warranty
In the Case of (a) Dudley ag't Booth in this Court It was ad- judged that a Warranty created upon a Lease & Rel. was a Bar But changed their Opinion Apr. 1741 betw. Dudley & Perrin post. 317.
(a) Vide Sir J. Randolph's Argum't No. 4.
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For the Respondent it was insisted that there being only Land enough to satisfie the 1000 Acres intailed The whole must be taken as intailed And then the Deed of 1717. being to defeat the Estate tail was void by the Act 9th Anna c. 13. which enacts that all Fines &c. Acts & Things [199] whatsoever done towards the cutting off avoiding or defeating any Estate tail shall be to all Intents & Purposes null & void
And of that Opinion was the whole Court except Randolph & Digges Apr. 1739.
But surely this was a most strange Determination And the Case could never be rightly understood by the Court The Act never intended to make the Deeds of Ten't in Tail absolutely void but only with Respect to docking the Intail If it did no Action of Coven't could be maintained on such a Deed Yet many such have been brought in this Court Neither could a Warranty with Assets be a Bar as was adj'd between Booth & Dudley The Statute De Donis restrains Ten't in Tail from aliening as well as this Act of Ass. but no such Construction was ever made How does this answer the Argument that the Reversion passed by the Deed of 1717 Or the Point of the Warranty Never was an Argument so little understood
Mercers 2 Book 48.
OCTOBER COURT MDCCXXXVI
WINSTON & Ux. ag't HENRY & Ux. Adm'x of SYME. Canc.
John Geddes having a Wife & one Daughter married to Bobby by whom she had two Daughters the Plt. Rebecca her eldest & Eliz. & was also ensient of a Son by his Will May 18. 1719. devises to his Wife 3 Slaves during her Life & the absolute Property of six more And gave her during Life a Plantation called Totero fort & the Use of all his Stock Household Stuff &c. on that plantation and the use of all his household stuff, stock &c. at Sandy Point And declared that after his Wifes Death the principal Stock & appraised Value of the Goods should be made good to those who had Power to demand them by that Will And after his Wifes Death gave all his Household Stuff &c. at Totero fort to her Daughter & her Daughters to be equally divided among them And gave his Daughters eldest Son if any such there should happen to be all the Stock & Household Stuff at Sandy Point And gave his Wife the Use of most of his Plate
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(naming the particulars) during Life And gave her all his China and after his Wifes Death gave the Use of his Plate to his Daugh- ter & after her Death to her eldest Son if no such to her eldest Daughter He likewise gave his Wife [200] 100£. of the Mony in Mr. Perrys Hands The rest to be equally divided betwixt his Daughter & her 3 aforesaid Children And appointed his Wife Guardian to the Plt. Rebecca & sole Extrix & desired she should return a settled Account of his Estate in Virg'a & Mony in Eng- land but should not be obliged to give Security during her Widow- hood because of the great Confidence he placed in her just Management for herself & others And by a Codicil to his Will declared that the Household Stuff &c. given to his Daughters eldest Son at Sandy Point in Case there should be no such he gave to be divided betwixt his Daughter & her Children already mentioned but made no Disposition of the Surplus of his Estate
The Wife proved the Will & possessed herself of all the Testors Slaves & personal Estate amounting besides the Plate devised & 29 oz ... . 8 pert. . more to 689. 14. 4% but never returned a settled Acco't of the Estate or of the Monies in England and soon after the Testors Death married one Syme The Testors Daughter soon after his Death was delivered of a Son who died at 7 years old before the Testors Wife Syme possessed himself of all the Testors Estate & as Guardian to the Plt. got all the Estate so as aforesaid devised to her & also what she had from her Father who died in 1725 After the Death of the Testors Wife in 1728. Syme married the Deft. Sarah & died intestate She administered & married the Deft. John
This Bill is brought to have the Plate delivered a Moiety of the principal Stock at Sandy Point & Totero fort and of the' appraised Value of the Household Stuff & a Moiety of the Residue of the Testors personal Estate including 2006. & Costs recovered by Syme & his Wife of the Extors of one Danzie She & her Sister being next of Kin And to have an Acco't of the Plt, Rebecca's Estate & of the Profits while Syme was Guardian
The Deft. Sarah answers alone & says Syme p'd Bobby & his Wife the Plts Father & Mother more Mony than belonged to her & her Children in the Hands of Perry and prays to be allowed those Paiments That the Testors Wife lived 8 years & used the Stock & Household Stuff all that Time & hopes Symes Estate shall not be answerable for the appraised Value but for the Value at her Death Says she is ready to deliver the Plate &
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pay the Plts what is due to them by Geddes's Will and annexes sev'l Acco'ts of the Estate & submits how far the Estate of Syme is chargeable Says she is ready to account for the Profits of the Plts Estate while Syme was her Guardian being allowed for her [201] Maintenance & Education And as to that Part of the Bill praying a Decree for a Moiety of the Residue of Geddes's Estate She demurs & insists the Residue belonged to the Extrix Or if it did not the Plts are not intitled to so much as a Moiety
In this Case there are 3 Points 1. Upon the Demurrer whether the Surplus of Geddes's Estate is to go to the Extrix or next of Kin If to the next of Kin what Part the Plts are intitled to 2. Whether the Paiments made by Syme to the Plts Father & Mother & to the Mothers 2. Husband of the Plts Legacy are good Paiments to bar her in this Case 3. Whether the Defts. are answerable for the appraised Value of the Household Stuff &c. or the Value when the Testors Wife died & whether an Allowance is to be made for the Goods worn out & the Stock that died in her Life time as is sought by one of the Accounts annexed to the Defts. Answer
1. Whether the Surplus not being disposed by the Will is to go to the Extrix or be divided among the next of Kin It is sayed in our old Books that the making of a Man Extor is a Gift of all the Testors personal Estate And so the Law was taken for some Ages till after the Stat. of Distributions 22. & 23. Car. 2. since when a Change in the Law has been introduced as to this Matter Insomuch that it is now become a Kind of settled Rule in Equity that where the Surplus is not disposed of and the Extor has a particular Legacy given him such surplus shall not go to the Extor but to the next of Kin and the Extor shall be taken as a Trustee for them Where the Extor has no particular Legacy the Law still remains as it was & he shall have the Surplus
The Reason of this Change in the Law I apprehend to be this Before the Statute of Distributions the Right to Intestates Estates was very unsettled It remained pretty much in the Breast of the Ordinary to dispose as he thought fit for to whom- soever he granted Administration he had a Right to the whole Estate At the Common Law he had a Power to dispose as he- thought fit to pious Uses & was not obliged to pay the Intestates Debts till the Stat. of Westm. 2. The 31. E. 1. gives him Power
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to grant Administration to the next of Kin but the 21. H. 8. 5. enacts that he shall grant Administration to the Widow or next of Kin or both Yet after this Stat. if Adm'tcon was granted to a Stranger unless there was an Appeal in 14 Days the Wife & Children were excluded & the Adm'nx run away with the whole Estate Which Mischiefs the Stat. of Distributions has remedied by directing a Distribution among the Wife Children & next of Kin let the Adm'tcon be granted to whom it will Vide 3. Mod. 59. to 64. Palmer ag't Allicock
Now it is plain before this Stat. no one could set up a Right to the Surplus of an Estate undisposed of by Will The next of Kin had no Right to it unless Adm'r & no Adm'tcon was then or is now granted where there is a Will So that the Law of Necessity [202] threw the Surplus on the Extor there being no other Person that could claim it But now that this Act has established a Right in the next of Kin where a Man does not dispose of the Residue or Surplus of his Estate Equity will regard him an Intestate as to that & decree a Distribution among the next of Kin that is where the Extor has a particular Legacie given as I have already sayed and that for this Reason that it is absurd to suppose a Man should intend to give all & some to the same Person And therefore the Devise of a particular Legacie makes the Implication very strong and violent the Testator did not intend more because if he did the particular Legacie must be useless
I take the Law to be very clear & settled as to this Matter where Strangers are made Extors But. I must own the Resolu- tions are not so unanimous where the Wife is Extrix Yet I believe it will appear the Cases are more & weightier that a Wife Extrix shall not have the Surplus than that she shall Then there are such particular Circumstances in this Case to differ it from any that can be shown that I am persuaded it will be y'r Honours Opinion she ought not to have the Surplus in this Case
The first Case of this Sort that we meet with is Foster & Munt 1. Vern. 473. where the Extor gave particular Legacies to his Children & to his Extors 106. a piece for their Care And the Surplus decreed to be distributed
Bailey & Powell 2. Vern. 361. Ch. Ca. Abr. 244. 2. The Testrix gives particular Legacies to all her next of Kin by Name & also to her Extors The Surplus decreed to be distributed
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Many other Cases where Strangers were Extors vide Ch. Ca. abr. 244. & no Authority to contradict them except where parol Proof has been admitted to prove the Testator intended the Surplus to his Extor as Batchelor & Searl 2. Vern. 736. Cha. Ca. Abr. 246. & Littlebury & Buckley there cited - Vide Mod. Ca. Eq. 9. Rashfield & Careless. Ibid 11 & 27.
Then as to to the Cases where a Wife is made Extrix I conceive the Law is the same unless from the Nature of the Particular Legacy or some other collateral Circumstance it may be pre- sumed or can appear the Testator intended the Surplus to the Wife
Darwell & Bennet cited 2. Vern. 677. The Testator gave his Wife 1006. & the Interest of 3006. for her Life & made her & others Exors Surplus decreed to be distributed
Ward & Lane cited 2. Vern. 677. A Man made a Will & his Wife Extrix Lived 20 years afterwards & acquired an Estate Surplus decreed to be distributed
Lady Granvile a Duchess of Beauford 2. Vern. 648. The Duke gave the Use of the Table Plate to the Duchess for Life & made her Extrix Surplus decreed to be distributed by L'd Cowper This was reversed by the House of Lords not upon the Face of the Will [203] but upon the parol Proof as I conceive that the Duke intended the Surplus to the Wife And so this Case is rather for us The very admitting of Proof being a strong Argument the Extrix would not have the Surplus without And there is no Sort of Proof in this Case Another Reason for this Reversal was because the Duchess had not an absolute but only a special Property (a) in the Plate devised to her. Mod. Ch. Ca. 10. But here the Wife has sev'l absolute Legacies The strongest Case against us is --
(a) Vid. Hoskins a Hoskins Prec. Chan. 268.
Ball & Smith 2. Vern. 675. Smith devised to his Wife some Plate & Goods she had as Extrix to a former Husband And the Surplus was decreed to the Wife 2 Reasons given for this Decree are because the Will was made before the Case of Foster & Munt And for that nothing was devised to the Wife but what was her own before Reasons that will not hold in our Case where the Wife has a very large & ample Provision The Chancellor himself (Lord Harcourt) seemed not to be perfectly satisfied but hoped for setting the Point as he sayed it would receive the
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Judgment of the House of Peers Whether it ever did does not appear So this is only the Opinion of Lord Harcourt supported by no preceeding Authority ag't that of Lord Cowper in the Case next before & the Authority of Darwell & Bennet & Ward & Lane before remembered
Then the particular Circumstances of this Case differ much from that of Ball & Smith There the Wife had nothing given her but was her own before & so in Effect no Legacy Here the Wife has very great Legacies six Slaves & 100£. Sterling abso- lutely besides the Use of other Slaves two Plantations Stock & Household Stuff for Life From whence the Implication is very strong and violent that he did not intend her any more than what is particularly given for if he intended her the Surplus the particular Legacies are useless
But there is still something further in this Case & that is a Clause in the Will which seems clearly to shew the Testator did not intend the Surplus to the Wife He directs her to return a settled Account of his Virginia Estate & Mony in England & directs that she shall not give Security because of the great Confidence he placed in her just Management for herself & others To what Purpose was she to return a settled Account if she was to have the whole Surplus Then that Expression of managing for herself & others is a plain Indication he did not intend her the whole So that besides the general Rule where a particular Legacy is given to the Extrix that she shall not have the Surplus Here are the Words of the Will itself from which I conceive the Implication is made stronger that the Testor in this Case did not intend the Surplus to his Extrix All these Circumstances considered which differ this Case so much from that of Ball & Smith the only [204] Authority in Point ag't us And as that Case is opposed by more numerous Authoritys & the Chancellor himself seemed to doubt I hope there is no Reason to depart from the general Rule that an Extor shall not have the Surplus where a particular Legacy is given but that it shall be distributed among the next of Kin
As to the Share of the Surplus the Plts. are intitled to I con- ceive it is a Moiety if any Geddes left only one Daughter whom the Plt. & her Sister represent If the Surplus does not belong to the Extrix the Representatives of the Daughter must be intitled to it & consequently the Plt. to one Moiety The Defts. I suppose would bring in the Wife to have a Share of the Surplus
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with the Daughter but I apprehend she ought not to be let into any Share any more than to the whole It is true if Geddes had died Intestate the Stat of Distributions would have given a 3d to the Wife but this Case is very different We are now before the Court not for the Distribution of an Intestates Estate but to take the Surplus from the Extrix upon a Presumption or Im- plication that the Testor did not intend it to her This Intention is proved by the Devise of particular Legacies to the Extrix From whence we say the Implication is strong & violent he did not intend her any more This Argument then is as strong to exclude her from any Share of the Surplus as from the whole The Surplus in these Cases is taken in Equity as a Trust in the Extor for the next of Kin but this must be understood of such as the Testor has not excluded by his Will Here is no Room to imply a Trust for them whom the Testor has declared shall not have it And therefore in this Case if he did not intend his Wife more than is particularly given his Intention is clear to exclude her from any Share of the Surplus And then the Plts are well intitled to a Moiety
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