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 21
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This Point is not touched in any of the Cases supra Only in that of Lady Granvile ag't Duchess of Beauford it seems the Duchess was to have a third
2. Whether the Paiments made to the Plts Father & Mother & to the Mothers 2d Husband are to be allowed as a Satisfaction of the Plts Legacy And I conceive not It is true formerly the Chancery did allow a Paiment to the Father of a Legacy given to an Infant to be a good Paiment with this Difference which seems to have little Foundation in Reason viz If the Extor took Security to indemnifie him then he paid it at his own Peril & should be chargeable to the Infant Notwithstanding such Pai- ment But if he took no Security the Paiment was good ag't the Infant 1. Ch. Ca. 245. But this Practise giving a Handle to indigent Parents & [205] knavish Extors to juggle Infants out of their Rights the Chancery of later Times has thought fit to extend their Care further for Infants and such Paiments are now always disallowed It is become a settled Rule and even where the Circumstances are ever so hard such Paiment will not be allowed So it was decreed by Lord Cowper Mich. 1715. between Doyley & Tollferry where the Hardships upon the Extor were very singular the Son living 15 Years after he was of Age & having a Promise from his Father when in good Cir-
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cumstances to pay it tho he afterwards became insolvent But the Chancellor to discountenance the Paiment of Infants Legacies to their Parents And that the Case might not be cited as a Precedent when the particular Circumstances attending it were forgotten Decreed ag't the Extor Ch. Ca. Abr. 300. 1. Wil 285. S. C. Rep'ts in Equity 103. S. C. Rep'ts in Eq. S. C.
By this Case it appears to be a settled Rule in Equity todis- allow the Paiment of an Infants Legacy to the Parent And after reading this Case it may seem needless to say any thing more upon this Head But to put this Point beyond all Dispute I must observe further that Mr. Syme who pretended to make these Paiments was actually the Plts Guardian It is admitted in the Answer And the Defts. submit to account for the Guardian- ship This pretended Paiment then to the Father must be looked upon as a meer Fraud especially when the Nature of this pre- tended Paiment is considered w'ch appears by the Acco'ts an- nexed to the Answer Mr. Syme sells to Bobby the Plts Father his Wife's Estate for Life in the Totero Plantation and the Cons. Bobby was to pay viz. 127.5. is charged in the Defts. Acco'ts as a Paiment in Part of the Plts. Legacy And this is the greatest Part of what is pretended to be paid to the Plts. Father As to the Paiments to the Mother or her 2d Husband I presume nothing need be sayed There is no Instance that such Paiments were ever allowed under any Circumstance much less then in this Case I am sorry to observe Mr. Syme's Conduct carrys not the fairest Appearance Surely it was his Business as the Plts. Guar- dian to retain what belonged to her & not pay it to a Father or Mother that he knew were indigent & careless The principal Reason why a Paiment to a Father was formerly allowed was this that the Father is by Nature Guardian to his Child but that Reason must cease where there is another Guardian So that here was no Kind of Pretence to pay to the Father And therefore this pretended Paiment must be looked upon as a Contrivance of Symes to secure the Mony due from Bobby upon the Sale of the Plantation And so is a fraudulent Paiment that ought , to meet with no Countenance in Equity admitting such Paiments were sometimes allowed But as the Rule of Equity is general that no paiment to a Father of his Childs Legacy is good under any Circumstances Here can be nothing sayed to support such a Paiment upon the particular Circumstances of this Case
[206] 3. Whether the Defts. are answerable for the appraised
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Value of the Household Goods or the Value when the Testors Wife died And whether any Allowance is to be made for the Goods worn out & the Stock that died in her Lifetime I con- ceive there is no Ground for the first Part of this Question The Testors Will is express that the appraised Value of the Goods shall be made good to those in Rem'r I hope what the Testor has expressly directed shall be complied with. Nor is there any thing in the Objection that may be made that then the Legacy is of small Benefit It is to be considered the Wife has very great Legacies besides and it is surely some Advantage to have the Use of Things during Life to pay their Value at a great Distance of Time as in this Case after Death However that be the Testors Words are express & there is no Room to make other Construction And if so [sic]
Then certainly no Allowance is to be made for the Goods worn out by the Testors Wife There is a great Difference between this Case and a common Devise of the Use for Life with Rem'r over In the common Case I agree if the Goods are worn out in Life time of the Devisee for Life he in Rem'r must be contented with what is left of the specifical Goods devised but here we are not to have the Goods but the appraised Value after the Wifes Death And so it is the same as if he had sayed My Wife shall have the Goods paying the appraised Value at her Death This was clearly the Intention And if we are to have the appraised Value at all we must have the Value of the whole Goods
As to the Cattle that died in the Wifes Life I think no Allow- ance ought to be made for them neither the Testor directs that after his Wifes Death the principal Stock shall be made good to those in Rem'r By which I apprehend he intended that his Wife should have the Use & Benefit of the Stock & the Increase but that as good a Stock as the principal was at his Death should be made good after her Death to those in Rem'r It cannot be supposed he intended only what should be left of the specifical Stock should go to those in Rem'r that must have been an useless Devise after a Life since he could not suppose many of them would be then left Therefore by directing the principal Stock to be made good he must intend a Stock of equal Value. And then it is nothing to the Purpose if they had all died The Wife might have refused the Legacy if she did not like it but having accepted it she must perform the Condition upon which she accepted it that is to account for a Stock of equal Value to those in Rem'r As she had the Use of this Stock & the Benefit
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of the Increase'she ought to bear the Loss Qui sentit commodum &c.
Randolph for the Deft. The Surplus of an Estate undisposed [207] of by Will has been sometimes decreed for the next of Kin & some times for the Ex'r according to the Testators Intention [sic] the Rule to govern these Cases The Wife here brought a great Fortune to the Husband who was a Beggar Upon the Marr he articled to give her 200£ besides a third of his Estate as appears from a Clause in his Will The provision made for her by the Will is not equal to that, And it ought to be presumed the Testor intended to do Justice which he will not unless the Wife has the Surplus Marr Articles ought to be supported And the Wife had such an Equity by those Articles as ought to rebut the Plts. Besides there is a great Difference where the Wife & where a Stranger is made Extor And there is no Instance where the Surplus has been taken from a Wife Extrix Except that of Ward & Lane supra It is not to be supposed a Man makes his Wife Extrix meerly to give her an Office of Trouble but rather of Benefit to take the Surplus Cited Griffith & Rogers & Jones & Westcomb Ch. Ca. Abr. 245. 8. 10. Ball & Smith & Bachelor & Searl supra both which were much relied on He agreed the Paiments were not good but insisted the Plt.s. ought to take the Stock & Household Goods in the Condition they were at the Wifes Death And that the Defts. were not accountable for the appraised Value
Repl. The Testors Intention is the undoubted Rule to govern Cases of this Sort And this Intention may be either expressed or implied The Argument here is drawn from an implied In- tention of the Testator A strong & violent Implication that he could not intend the Surplus after devising so many & valuable Legacies And without a strong & violent Implication I agree the Surplus is not to be taken from the Extor which is all that can be collected from the Case of Bachelor & Searl so much relied on Parol Proof was there admitted in Favour of the Extors Title And without that Proof the same Chancellor (Cowper) decreed ag't the Extrix in the Case of La. Granvile & Dss of Beauford Supra As to the Case of Griffith & Rogers the Wife there had only ten Books given her & it could not be supposed the Testor intended her no other Provision Jones & Westcomb is indeed a stronger Case but possibly it turned upon the Nature of the particular Legacy being a Term which is a Chattle real &
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no Devise to the Wife of any Estate meerly personal And then both these Cases are within the Rule I first laid down. Note this last was a Decree of Lord Harcourts & about the same Time with Ball & Smith There seems to be little Foundation in Reason for the Difference where a Wife & where a Stranger is Extor Especially where the Wife has a handsome Provision as in this Case Certainly the Implication is as strong that the Testor intended no more in the one Case as the other The Circumstances of the Wifes bringing a great Fortune & the Marr Articles are not at all in Proof & so ought not to influence But admitting all to be true that is sayed the Husband by the Marr acquired the absolute Property in his Wifes Fortune & might dispose as he pleased Nor can it be thought reasonable or equi- table that he [208] should give all to his Wife & leave his Child & Grandchildren to starve And as to the Marr Articles it will be Time enough to talk of them when a Performance of them is sought for
Oct. 1736. The Court decreed the Surplus to be distributed & the Wife to have one third that the Paiments were not good that the Defts. sho'd acco't for the Value of the Household Stuff at the Time of the Wifes Death And for as good a Stock as was left by the Testor at his Death And pay the. Plts. a Moiety of the Value
As to Distribution of Surplus see Farrington a Knightley Prec. Chan. 566. & 1. Will. 544. In w'ch last all the Cases are collected & settled clearly for a Distribution where Ex'r has a Legacy & no Diff. Whether a Wife or a Stranger be Ex'r
See also Prec. Chan. 323.
APRIL COURT MDCCXXXVII.
ROBINSON ag't ARMISTEAD & al. Canc.
The Bill sets forth that John Armistead & Robt. Beverley deced jointly purchased 100 A. of Land in Com. Glouc. which was conveied to them by Deed Jan. 17. 1680, for the Cons. of 506. That Beverly by his Will Aug. 20. 1686. devised his Half part to his Dau'r Catherine in Tail & soon after died After which Armistead became solely possessed of the Premes & died possessed And after his Death John Armistead his eldest Son &
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Heir entered & was possessed & died possessed After whose Death his Son & Heir John Armistead entred & died possessed leaving the Deft. John Armistead his Son & Heir an Infant That the s'd Cath, at the Death of Beverley was an Infant & before 21. married John Robinson Esq'r the Plts. Father now living And died in 1726. leaving the Plt. her eldest Son & Heir then an Infant And since the Death of Armistead the Grandson The Defts. Burwell Armistead & Dudley in Right of the Deft. Armistead an Infant have entred into the Premes claiming the whole by Survivorship & refuse to make Partition with the Plt. Praying therefore that the Defts. may answer the Premes And the Plt. be relieved according to Equity.
The Defts. demur & answer and assign two Causes of Demurrer 1. That the Plt. seeking to be relieved ag't a Right of Survivor- ship accrued by the Course of the Common Law to the Defts. great [209] Grandfather so long ago as 1686 There is not sufficient Matter of Equity in the Bill to entitle the Plt. to such Relief Especially at this Distance of Time 2. That the Plt. hath no good Title for that Beverley being jointly seised with Armistead could not by Law devise but such Devise is void both in Law & Equity
For Answer say they are Strangers to most of the Matters in Bill But believe there was such Conveiance to Beverley & Ar- mistead the Deed being in one of their Custody Have heard it was agreed between them that the longest Liver sho'd have the whole And that Armistead the great Grandfather gave the Plts. Mother a Slave which she declared she thought the full Value of any Right she might have to the said Land and therefore would never sue for it or suffer her Husband to do so Submit whether a quiet Possession of 50 Years under a legal Title ought to be now impeached upon the Pretence in Bill
I am now to speak to the Demurrer. It is granted by the bringing of this Bill that Armistead & Beverley by the Purchase & conveiance to them were Joint-tenants It is not pretended that one paid more of the Purchase Mony than the other Or that there was any Agreem't that Survivorship should not take Place Or any other equitable Circumstance to differ this from the common Case of Joint-tenancys The Question then upon the first Cause of Demurrer is whether Equity will relieve ag't the Right of Survivorship between 2 joint Purchasors paying equally for the Purchase Or in other Words whether Equity
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shall controul & overturn the most ancient & established Rules of Law For
I take this Jus accrescendi or Right of Survivorship between Joint ten'ts to be of as great Antiquity as any thing in our Law It is not the Subject of any written Law now extant but is a Part of the Lex non scripta vulgarly called the Common Law It was introduced as I presume with the Feudal Law And had its Origin probably from this To prevent the dividing & multi- plying of Tenures. See 1. Sal. 392. But this is only my own Conjecture For I confess I am not Lawyer enough to know whether this Jus accrescendi is a Part of the feudal Law or obtains in Lombardy & those other Countries where that Law is received It is certainly unknown in the Civil or Roman Law in the Sense we speak of There is indeed a Jus accrescendi a Right of Ac- cretion by that Law But then it is in Cases of a different Nature i.e. of Succession & Legacies where there are 2 Heirs or Legatees & one refuses or becomes incapable to take his Share the other has the whole Jure accescendi 2. Dom. 85.
But however this Law was first introduced Or whatever was the Reason or Policy of its first Institution It is without Doubt very ancient among us as appears by Littleton & Sr. Edward Cokes [210] Commentary and from Bracton Lib. 4. 262. b. And obtains as well between Joint ten'ts of Lands as of Chattels real & personal Except between Joint Merchants or Partners 1. Inst. 181. a. 181. b. And I take it to be clear that this Survivorship takes Place in Equity as well as at Law Except there be an Agreem't to the contrary or some other Circumstance Upon which Equity may construe or presume a Trust in the surviving Party for the Benefit of the deceased 1 .
In the Case of joint Purchasors I take this Difference Where two purchase jointly & pay the Cons. equally Unless there is some Agreem't to manifest their Intention that Survivorship shall not take place it shall be taken that they agreed to run the Chance & Hazard of Survivorship which is equal to both And so it may be compared to a Wager And then there is no more In- justice or Hardship with Respect to natural Justice that the Survivor should have the whole than that the Winner of a Wager should insist on the Money won But where one Purchasor pays more than the other or in Case of a Lease lays out more in Repairs there it cannot be supposed that they agree to run the Risque of Survivorship because of the Inequality and because
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by that Means he that is at little or no Expense might run away with the whole which being unequitable a Court of Equity will relieve ag't Surviorship by constructing a Trust in the surviving Party and so preserve the respective Interests of either Party in Proportion to the Mony advanced See Ch. Ca. Abr. 290. c. 3.
And this appears from the foll. Cases
200£. was devised by Will to be laid out in Lands & settled . to the Use of A. & the Heirs of her Body Rem'r to the Children of B. Before the Money was laid out A. died without Issue the Trustees afterwards purchased & settled the Lands on the Children of B. jointly in Fee according to the Will One of the Children died And adjudged the Survivor should have the whole 3 ch. Rep. 214. Sanders versus Ballard Carth. 15. s. c. This Case is likewise reported 2. Vern. 46. contrary viz. that the Sur- vivor should not have the whole But the Report there is very short & without any Reason whereas the other Books assign the Reasons of the Decree & are much fuller And therefore more probable to be right And in these last there is a Difference taken in Case the Money had not been laid out Nothing of which appears in Vernon and this I take to be a Case in Point
The Plts. Husband & the Deft. & their Ancestors had long enjoyed a Church Lease in Moieties & had often [211] renewed under an Agreem't to take no Advantage of Survivorship Upon the last Renewal there was no express Agreem't to bar Survivorship. The Plts. Husband being sick by Deed assigned his Moiety to his Wife and also devised it to her by Will Yet Decreed the Plt. should not be relieved ag't the Survivorship And that the Grant & Devise are both void 2. Vern. 385. Moyse ag't Gyles This may appear a hard Case since there was Room for Equity to presume the last Lease was renewed under the same Agreem't as the former or to make good the defective Conveiance to the Wife But the Grant & Devise being void in Law And no Agreem't appearing to the contrary the Common Law was suffered to take its Course and Equity would not relieve ag't it
A Lease for Lives was made In trust for two One dies Decreed the Surv'r shall have the whole For the Trust must go as the Term at Law would have done And as Survivorship would have taken Place at Law So it must in Equity Pas. 1706. Aston & al. versus Smallman & al. 2 Vern. 556. Here in the Case of a Trust which is properly under the Direction of Equity The Court
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would not interpose or hinder the Course of the Common Law
These I take to be very strong Cases I shall now read another a very recent one where you will have the Opinion of the present Master of the Rolls. Lake & Gibson Ch. Ca. abr. 290. c. 3.
For further Authority See 1. Vern. 33. 217. 360.
These Cases do I think very fully make out the Rule I laid down & the Difference I have taken viz that Survivorship takes Place in Equity as well as at Law Unless there be an Agrem't to the contrary or some other circumstance to induce a Pre- sumption of a Trust Nothing of which appears in this Case Not the least equitable Circumstance whatever And I will be bold to say that in in a Case of this Nature there is no Instance to be given that a Court of Equity did relieve ag't Survivorship It would indeed be setting up such a Power in the Chancery to controul & overturn the Common Law as must render Right & Property very precarious Instead of being determined by fixed & settled Rules & Principles Law & Right must depend upon arbitrary Decisions which are ever fluctuating & contradicting one another This is I believe a Case of the first Impression And if the Plt. succeeds in overturning this ancient Rule of Law I shall expect next to have a Bill brought by the younger Children ag't the Heir to have the Inheritance divided Since I am sure in the Reason of Things & according to natural Justice there is as little I may say less Reason that the eldest Son should run away with [212] the whole Estate & the younger Children be left to starve than that of 2 Joint ten'ts the Survivor should take the whole
I shall say nothing here of our long Possession Nor enter into the Dispute how far the Act of Limitation may bar in this Case. Conceiving it to be very clear upon what has been sayed that Equity ought not to relieve in this Case For the same Reason I shall be very short in speaking to the
2. Cause of Demurrer which is that the Plt. has no good Title admitting Survivorship does not take Place His Title is under the Will of Beverley who being jointly seised with Armistead could not Devise but such Devise is void both in Law & Equity
There is no Rule of Law more universally known than that a Joint ten't cannot devise But to demonstrate It is to be con- sidered that Lands were not deviscable at the Common Law Except in particular Places by Custom The Stats. of: 32. & 34.
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H. 8. 5. give Men a Power to devise their Lands and by the express Words of this last Act they must be sole seised So was the Common Law before the Statute where Lands were deviseable by Custom a Joint ten't could not devise Lit. S. 289. 1. Inst.185. So the Statute was made in Conformity to the Comon Law This Devise is therefore void And so it was adjudged in the Case of Moyse & Gyles supra The Plt then has no Title If any one has It is Beverley's Heir who at least should have been made a Party to this Suit
Needler for the Plt. Survivorship has no Foundation in natural Justice The Reason why it takes Place at Law is from an implied Consent but that is not sufficient in Equity Besides here the Implication is destroied by Beverley's Will which shews it was not his Intention Survivorship should take Place
Suppose a Man sho'd lay out his whole Fortune in a Purchase with another jointly & die Would it not be a most cruel Deter- mination to send his Posterity a begging & let the Survivor run away with the whole In the Case of Grants from the Crown to two jointly It has been often adjudged in this Court that the Survivor should not have the whole Land. (2). Regularly Sur- vivorship never takes Place in Equity but in Case of a Gift to two jointly In Case of a Purchase Equity always construes it a Trust in the Survivor The Cases cited for the Deft. are chiefly of Terms which are inconsiderable Besides Precedents are of little Weight in Equity where every Case must stand upon its own Bottom That if it was a Trust in the Survivor The Devise by Beverly was a good Appointment in Equity An equitable Interest is devisable: As where one has agreed for [213] the Purchase of Lands & dies before Conveiance he may devise the Lands
He cited Petit & Steward 1. Ch. Rep. 57. Jefferys & Small 1. Vern. 217. & Usher & Ayleworth 1 Vern. 360. But note the first is a case of Money lent on a Mortgage and one advanced more than the other The second is the Case of a joint Stock in a Farm And even there it is sayed if a Lease of the Farm had been taken the Interest would survive And the third is the Case of a Building Lease where one advanced more in building than the other So that they all fall within my Distinction supra In this last Case Relief was denied because of a Purchase & Length of Time quod nota
April 1737. Demurrer allowed by the Opinion of the whole Court
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OCTOBER COURT MDCCXXXVI
ROSE Extor BAGG ag't COOKE & al. Ante 179 S. C.
The Defts. having pleaded that they were under Age and praied that the Parol might demur Upon Demurrer Judgment was given quod respondeant ouster After which they pleaded in Abatement of the Writ that there is another Devisee in the Will not named in the Writ To which the Plt replied an Im- parlance the former Plea & Judgment And thereupon demurred And it was argued for the Plt.
That this Plea being in Abatement could not be pleaded after Imparlance which was a known & settled Point 1 Vent. 76. 137. Sti. 187. 2. Lutw. 22. 24. 8 Mod. 43. 381.
It is true Matter of Abatement may be pleaded after a special Imparlance And it is also true that the Deft. here in the Office had a special Imparlance granted but the Plea is pleaded with- out any Notice of it And therefore they have waived & lost the Benefit of it ..
The Nature of an Imparlance is nothing else but the Con- tinuance of the Cause to a further Day for the Deft. to advise what to plead Terms of the Law 289. And when the De. t. has anything to plead in Abatement he takes his Imparlance with a Salvis sibi omnibus advantagiis &c. And this is called a special Imparlance After which Matter of Abatem't may be pleaded as I sayed
[214] In England these special Imparlances are granted by the Secondaries in B. R. & the Prothonotaries in C. B. as they are by the Clerk here out of Court out of Court [sic] And there are various Sorts of them as with a saving Exception to the Writ - to the Writ & Declaration -- or with a Saving of all Excep- tions whatsoever Hard. 365. 1 Sal. 1. . And when the Deft. comes to plead he shews the Nature of his special Imparlance in his Plea And this of Necessity for 2 Reasons 1, that the Court may judge whether the Matter he pleads is proper after such Im- parlance because if it be not the Plea will be judged naught For Instance if the Imparlance be only with a Saving to the Writ or Bill he shall not plead to the Jurisdiction or any Matter in'Abatement of the Count or Decl. 1 Sal. 1 Hard. 365. 2. That the Imparlance may be made a Part of the Record And so are all the Precedents that I have seen of special Imparlances 1.
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