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 29
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N. B. The Reporter seems to incline to the Difference I take And thus I hope it is evident that the Agrem't set up if it was fully proved (w'ch I can by no Means admit) is not such a one as a Court of Equity ought to support It may seem needless then to make any further Observations however to shew there is no great Hardship on the Plt. I must beg Leave to make a Remark or two
It appears upon the Defts. Answer & is in Part proved that the Plt. for sev'l years ship'd the Testors Tob'o under her Mark & reced the Produce & killed & made Use of the Testors Hoggs & Cattle In the Acco't exhibited by her she has given Credit for no more than 35 .. 11. for the Produce of Tob'o And that in a gen'l Article without saying how many Hhds she received or when & there is no Credit at all for Cattle or Hogs This
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must appear a very inconsiderable Allowance for the Labour of 11 or 12 Hands for sev'l Years 3 according to her own acco't Then she charges 24£. for Tools & Cloaths for the Negros So the n't Produce is but 11£ . . 11.
It appears further upon the Answ'r that the Testor told the Deft. six Weeks before his Death he had at the Plts. Importunity fr. her Son 50£. To get a little Ease but she would not be satisfied without having all from his Children (as indeed is plain from this Suit) No Allowance is offered to be made for this 50€.
The Claim the Plt. sets up amounts to more than the whole Estate of the Testor So if she succeeds Not only the Testors Children will be sent a begging but sev'l of his just Cred'rs be defrauded of their Debts And besides all this the Plt. holds her Dower in the Testors Lands It is a Maxim those who will have Equity must do Equity and surely there is as much Reason & Justice that the Plt. sho'd acco't for the Profits of the Testors Estate while she reced them & for the 506. pd. her Son as that the Testors Estate should be liable for this pretended Debt to her It is a piece of Justice to the Cred'rs & Children of the Testor Now I believe if a reasonable Allowance is made for the Profits reced by Plt. out of Testors Est'a If the 506. pd. her Son & the Advantage she has made from the Dower in the Testors Lands be deducted out of her [282] Claim I mean so much of it as is proved there will be little or nothing due to the Pit.
In the Case of McCarty a Fitzhugh ab't six Years ago which was a Bill to compel the Paiment of a Bond Debt due to the Plts. Father from the Deft. who was one of his Exors The Deft. in his Answer disclosed divers equitable Demands he had ag't the Testor And without other Proof the Court allowed those Demands to bal'a the Bond Debt And the Suit was dismissed. I hope there is the same Equity in this Case to regard the Defts. De- mands
But there is a further Circumstance in this Case which I apprehend will bar the Plts. pretended Equity if the Agrem't was ever so fully proved It appears that the Plt. has accepted w't the Testor gives her by his Will viz. her separate Estate & Dower in his Lands. This Acceptance I take to be a Waiver of the Benefit of this pretended Agreem't I must submit whether this Case be not within the Equity of the Act 1. Geo. 2. 11. w'ch enacts that a Widow shall declare within 9 months Whether
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she will accept the Provision made for her by her Husbands Will If she fails she is forever barr'd to claim anything more than is given her by the Will Here the Wife is so far from making any Decl. that she will not accept that she actually enters upon what is given her It is plain from what the Testor declared when he made his Will that this Devise was intended in Satis- faction of what he promised w'ch must be understood of the Marr Agrem't The Wife accept it This Acceptance I rely upon bars her from claiming anything more both by the Act of Ass. & in natural Equity & Justice There can be no Reason she sho'd have the Benefit of the Devise & this pretended Agre- m't too To the defrauding of the Cred'rs & Ruin of the Testors Children
Upon the whole I conclude 1. that there is no direct or positive Proof of any Marr Agrem't at all And the Presumption on their Side is very light in itself & is also opposed & ballanced by as strong or stronger Presumption on our Side 2. The Cond. of the Bond does not necessarily import that it must be given for Performance of a Marr Agreem't Because it may have a suffic't Effect & Operation to other Purposes 3. If the Agrem't was ever so fully proved Yet it is extinguished by the Marr being to have Exon during the Coverture & so derogatory to the Rights of Marr. & inconsistent with the Nature of it 4. The Deft. has divers equitable Demands ag't the Plt. to the Value of hers And if she will have Equity she must do it 5. And lastly she has waived this pretended Agrem't & barr'd herself claiming the [283] Benefit of it by accepting the Provision made for her by her Husband's Will For all these Reasons the Plt. has no kind of Pretence to Relief in this Case And therefore I hope the Bill will be dismissed.
And it was dismissed by the Opin. of the whole Court præter Grymes Carter & Blair - Lightfoot & Dandridge gave no Opin. April 1739.
In this Case an Appeal was prayed for but the Plt. ackw. at the Bar her Son had reced the 506. mentioned in the Ans'r w'ch reduced her Demand under 3006. Sterl. It was denied
BANKS a BANKS & others In Canc.
William Banks by his Will devises thus " I give & bequeath " to my Son Ralph Banks (Conditionally that he no way alienate "or transfer my Land hereafter mentioned to any other Use
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" than to the Use & Uses that shall be by me herein declared) " all & every Part of my Home Dividend of Land where I now " live Even to him my Son Ralph & the Heirs of his Body law- " fully begotten for ever meaning his Children present or here- "after to whom the Right & Inheritance of in & to the said "Land shall descend & go in Case they or any of them survive "him But in Case he survives all of them that my said Son " Ralph shall be at his own Liberty to will & devise the Premes " as he shall think fit
The Question is Whether Ralph by this Devise took an Estate tail or only an Estate for Life and his Children an Estate in Fee in Jointenancy after his Death in Case they survived him
And I conceive that Ralph took only an Estate for Life with a contingent Fee however in Case he survived all his Children And that such of his Children who survived him take an Estate in Fee in Jointenancy
It seems needless to enforce that plain & almost uncontro- verted Doctrine that in the Construction of Wills the precise Form of Words is not so much regarded as the Intention of the Testor And that this Intention is to be collected from the whole Will To illustrate this by a Familiar Instance If a Devise be to A. & his Heirs in one Part of a Will Which Words we know make a Fee simple Yet if afterwards in another Part the Estate is limited to another in Case A. die without Issue It makes an Estate tail by Impl. & Constr. of the Testors Meaning collected from both these Passages or Clauses . In this & 20 other Instances that might be mentioned It appears that latter Words or Sentences [284] in a Will may so controul or explain former Words as to give them a different Sense & Meaning from what they naturally or in strict Constr. of Law would bear It is indeed so known & plain a Rule in the Constr. of Wills that I am persuaded it will not be denied on the other Side
To apply this to the present Case Here is a Devise to one & the Heirs of his Body This with't all Question would make an Estate tail if nothing followed or preceded to shew the Testor had another Meaning & Intention which I must now endeavour to shew But I will first beg Leave to read the whole Clause in the Will relating to this Devise
I apprehend Sir upon the bare Reading It must appear the Testor intended something more than meerly to give his Son an Estate tail What need of so many Words for that Purpose
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when a single Line would have done I apprehend too it is as plain that the Testor intended the Inheritance (It is his own Expression) should go to all the Children of his Son who happened to survive him And then the Son could not take an Estate tail for if he did the Inheritance would be in him & go to his eldest Son alone
There is nothing in the whole Clause that carrys the least Appearance of an Estate tail being intended to the Son but the Words Heirs of the Body And when it is considered for what Purpose the Testor made Use of those Words & what he meant by them as he himself has explained it It will be mighty clear as I conceive that he did not intend them as Words of Limitation or with any Design to increase or enlarge the Estate given to his Son but to quite another Purpose
In the first Part of the Devise He gives to his Son Ralph with- out adding more Upon condition too that he sho'd not alien or transfer to any other Use than the Use & Uses mentioned in his Will It will be agreed that nothing more than an Estate for Life would pass to Ralph by these Words And I must submit whether this be not some Proof of the Testors first & primary Intention to give no more than an Estate for Life Then the Condition not to alien in my apprehension is a further Proof that he did not intend an Estate tail Since the most ignorant know that Tenant in Tail cannot alien or sell But it is not perhaps so well known that Ten't for Life with a contingent Fee (w'ch is the Estate I conceive the Testor intended Ralph) cannot sell And that might be the Occasion of adding this Condition Then he is not to alien to any other Use than the Use & Uses [285] in the Will Would a Man have expressed himself thus who in- tended nothing more than an Estate tail What could he mean by the Uses in his Will if that was his Intent & there was but one . Use or Estate intended to [sic] given :1 -
To proceed to the Will after this Devise to his Son & this Condition he adds " Even to him my Son Ralph & the Heirs " of his Body for ever meaning his Children present or hereafter " Had the Devise gone no further than to the Heirs of his Body. I agree it would have made an Estate tail but when he adds meaning his children &c. He has explained what he meant by Heirs of the Body viz. the Children present & hereafter Which is a clear Proof he did not intend the Words Heirs of his Body as Words of Limitation to encrease or enlarge the Estate given
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to his Son but only as a Designation or Description of his Sons Children And therefore in our Law Phrase Heirs of the Body here cannot be taken as Words of Limitation but as Words of Purchase not to 'ncrease or enlarge the Estate given to his Son but to point out other Persons he intended sho'd take by this Devise
It is a very usual Thing in Wills to construe the Word Issue, Issue Male Heirs of the Body & such like to be Words of Purchase that is a Designation or Description of a Person intended to take It is a Rule of Law laid down in Shellys Case 160. 99. & other Books that where the Ancestor takes an Estate or Freehold a Limitation afterwards to his right Heirs or Heirs of his Body are Words of Lim & not of Purchase As a Devise to a Man for his life which is an Estate of Freehold & after his Death to the Issue of his Body This makes an Estate tail as was adj'd King a Melling 1 Vent. 225. But notwithstanding this Rule where Issue in such a Devise appears by the Testors Intention to be only Designation Personæ There it shall be taken as a Word of Purchase And the Testors Intent shall prevail ag't this Rule of Law As in
Archers Case 1 Co. 66. cited FitzG. 24. Devise to A: for Life & afterwards to the next Heir Male & the Heirs of the Body of such Heir Male It was adj'd that A. took only an Estate for Life And the Heir Male took by Purchase for Words of Lim being grafted on the Word Heir shew it was used as Designatio Persone & not for Lim of Estate (a).
(a) So Ledington & Kyme post.
In a late Case betw. Pampillon & Voyce in 1728. before the late Master of the Rolls Devise to his Son for Life Rem'r to Trustees for his Life to support contingent Rem'rs Rem'r to the Heirs of the Body of his said Son. Reversion to himself in Fee Decreed the Son had only an Estate for Life And that th H irs of his Body sho'd take by Purchase Abr. Ca. in Eq. 184. 30.
See also Bamfield & Popham Id. 133. 24. - Backhouse & Wells cited in Shaw & Weigh FitzG. 22. Clerk & Day Ibid. 24. And Raymonds Argum't in that Case
[286] In all these Cases the words Heirs of the Body Issue Male & Heir Male were construed to be Words of Purchase notwithstanding the Rule of Law before mentioned The Testors Intention appearing to be so which Intention in the two first
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Cases was collected principally from his grafting the Inheritance on the Estate given to the Issue And so they are Cases directly in Point to prove 1. that in a Will Issue Heirs of the Body et similia are often taken as Designatio Personæ or Words of Pur- chase And 2. Especially where it appears the Testor intended the Inheritance sho'd go to & vest in the Issue which is the Case here as I shall shew presently
In the Case of Shaw & Weigh before mentioned the Qeustion was whether Issue should be taken as a Word of Limitation or Purchase Lord Raymond who delivers the Opinion of the Court observes fo. 24. 25. that Issue in a Conveiance is a Word of Pur- chase But in Wills it is governed & directed by the Intent of the Party And adds when Issue is Designatio personæ It can carry only an Estate for Life to him whose Issue is to take by such Designation
Now in the Case before us nothing can be clearer than that by Heirs of the Body the Testor intended no more than a De- scription of his Sons Children He has told us so himself meaning says he his Children And then by the Rule laid down by Raymond the Son can take no more than an Estate for Life But when we consider what follows the Word Children in the Will the Matter seems to be put beyond all Doubt or Question The Words are " To whom i.e. the Children the Right & Inheritance of in & to the said Land shall descend & go in Case they or aeny of them survive him
Here are words of Inheritance grafted upon & annexed to the Word Heirs or Children And therefore expressly the Reason of Archers Case & the Case of Lodington & Kyme before cited where the Words Heirs Male & Issue Male are construed Words of Purchase even ag't an established Rule of Law that they shall be Words of Lim where the Ancestor takes an Estate of Freehold meerly because the Inheritance is limited or grafted upon the Estate given to the Issue Here the Testor has expressed himself in the clearest Terms that the Inheritance shall descend to the Children And so the Case is rather stronger than those As it does ex vi termini & in the most obvious Sense exclude the Father from taking the Inheritance
Further the Inheritance is not limited to the eldest Son which would make it look more like an Estate tail but to the Children present & future if they or any of them survive him The Words. Children present & future & They or any of them shew he in-
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tended [287] an equal Benefit to all the surviving Children & not that one should run away with the whole as he will do in Case Ralph is construed to take an Estate tail
In a few Words Can there possibly be a Doubt of a Mans Meaning & Intention who gives Land to his Son & his Children And then declares that the Inheritance shall descend to the Chil- dren after the Fathers Decease which is the Sum & Substance of the Devise before us What can be intended by such a Devise but an Estate for Life to the Father & a Fee to the Children
To construe this an Estate tail in Ralph All the latter Part of the Clause where the Testator declares the Inheritance shall descend to the Children must be entirely rejected & thrown out of the Question contrary to a known & established Rule of Con- struction that a Will shall be so construed as to make all the Parts of it stand & all the Words have some Effect if they are significant & sensible FitzG. 23. Fr. Raymond Now that these Words are significant & sensible can not be disputed Nay they have a plain apparent & express Meaning & therefore they must not be rejected And I insist upon it that they cannot have any Effect or Operation but by the Constr. I contend for Which Constr. gives them the Force & Effect they were intended for & is plainly expressed viz. that the Children shall have the Inheri- ance.
As the whole Will is before the Court I must beg Leave to take Notice of a Circumstance w'ch may serve further to shew the Testors Intention There was an elder Son than Ralph the De- visee to whom the Testor gives 50€. in Bar from ever claiming any Part of his Estate From whence I think it is plain he in- tended to exclude this eldest Son entirely from the Inheritance But if this is construed an Estate tail in Ralph There is a Rever- sion expectant undisposed of & which descended to the eldest Son So that upon a Failure of Issue in Ralph the Estate would come to him This cannot well be supposed to be the Testors Meaning when he has given such a Legacy to his eldest Son in Bar of his claiming any Part of his Estate Now by the Constr. I contend for the Fee simple vested either in Ralph if he survived all his Children or in the Children if they survived him And so there is nothing left to descend to the eldest Son
Upon the whole I conclude that the Words of the Devise before us can never be satisfied but by construing it to carry an Estate for Life to his Son with a Rem'r in Fee to such of his Children
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as survived him And if he survived them all Then a Fee to him upon that Contingency This I say I apprehend must be the Constr. from the Force of the Words from whence we are to collect the Testors Meaning & Intention
Ante 285 Lodington & Kyme - 1 Sal. 224. & FitzG. 23. cited by [288]. Raymond Devise to A. for Life And in Case he shall have Issue Male to such Issue Male & his Heirs for ever And if he die without Issue Male Rem'r over Adj'd that A. took only an Estate for Life And that the Issue took by Purchase the In- heritance being annexed & limited to the Word Issue
In this Case the Court were all clearly of Opinion that the Testor intended nothing more than an Estate tail to Ralph And that what was added after Heirs of the Body should be rejected as superfluous And so the Bill was dismissed April 1739.
Which I think a right Judgment.
VASS ag't PHILLIPS
John Pen by his Will Jan. 13. 1676. devises thus " I give & " bequeath to Ann Sharpe my Plantation &c " (the Premes in Question) And after other Bequests follows this Clause " And " for my Land w'ch I have given to Ann Sharpe if it should " please God to die without Issue I give to my Friend Tho's " Harwar Otherwise to she & her Heirs forever"
The Question is What Estate Ann Sharpe took by this Devise Whether an Estate tail or a Fee simple upon the Con- tingency of leaving Issue at her Death If the former the Plt. has a good Title Otherwise not
It must be agreed that by the first Part of this Devise Ann took only an Estate for Life "And it will be further admitted I presume that if the second Clause had gone no further than the Limitation over to Harwar It would have been clearly an Estate tail in Ann The Doubt then & Difficulty if there is any in the Case must arise from these latter Words " Otherwise to she & her Heirs forever "Whether these Words shew an In- tention in the Testor to give any other Estate to Ann than would have passed by the first Words if these had not been added And I conceive not but that he intended an Estate tail & no other Estate to Ann
It is a common Doctrine that the Intent of the Testor is the
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Rule & Guide for expounding of Wills That this Intention is to be collected not from any particular Sentence or Clause but from the whole Will taken together And that to serve this In- tention even Sentences are sometimes transposed
It is also a well known & settled Point that Issue in a Will always [289] imports & is taken to mean Heirs of the Body They are Terms equivalent & indeed are so taken in divers Acts of Parliam't as Westm. 2. De Donis & 34. H. 8. of Intails settled by the Crown 1 Vent. 229
This being premised I shall proceed to consider the Devise before us The Testor when he first disposes of the Land to Ann limits no Estate And consequently she could take only an Estate for Life by that Part of the Devise as has been observed Then when he comes to enlarge this Estate for Life & give an Estate of Inheritance it is remarkable he makes Use of the Word " Issue " If she dies with't Issue Rem'r over which is the same as if he had sayed with't Heirs of the Body This I think plainly shews that the first & primary Intention of the Testor was to provide for Ann's Issue as well as herself for it will be granted me that this Limitation over upon a Dying with't Issue would make an Estate tail if the Will went no further 3 Danv. 180. 7. 9. 181. 12. 1 Vent. 229. FitzG. 12. 25.
It is indeed an Estate tail by Impl. only but then it is by a plain & necessary Impl. of the Testors Intention that the Issue sho'd have the Land till the Rem'r took Place And in a Will it is not material whether an Estate be given by Impl. or express Lim It is the Intent alone that is to be regarded So that there is really no Difference betw. a Devise to one & his Issue and a Devise to one & if he die with't Issue Rem'r over Only in the first Case he has an Estate tail by express Lim & in the other by Impl. FitzG. 12.
If then this Devise be considered as a Devise to Anu & the Heirs of her Body or Issue which is the same I would ask whether when the Testor in the latter Part of the Clause comes to speak again of Ann & her Heirs It is not reasonable to suppose he meant the same Heirs he had just mentioned before If he did there is an End of all Doubt & Difficulty in the Case
And that he did mean the same Heirs I think may be fairly collected from the foll. Cons. 1. We know that in common speech Heirs are generally applied to a Persons Children If a Man leaves no Children it is common to say he left no Heirs And
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Words in a Will are to be taken as they are understood in common Speech If then we can suppose that this Testator thought Issue & Heirs imported the same Thing It will account for his making Use of the Words Issue in one Place & Heirs in another For when Men have annexed the same Idea to two different Terms or Words They make Use of those Terms indifferently as they occur to Memory
2. Upon the Face of the Will it appears the Testor had an Intention to provide for Ann's Issue as well as herself And this as has been observed seems to have been his first & primary Intention
3. There are many Cases in Law where the Word Heirs in a Will [290] has been construed & interpreted to mean Heirs of the Body Especially where the Word Issue or Heirs of the Body have been likewise made Use of by the Testor in the same Will Some of w'ch Cases I shall briefly mention
Webb & Herring Cro. Ja. 115. 1 Ro. A. 836. 5. A man had a Wife a Son & 3 Daughters Devised Land to his Son after the Death of his Wife And if his 3 Daughters survive the Wife & the Son & his Heirs to them for their Lives This was adjudged an Estate tail in the Son & that Heirs must be intended Heirs of the Body (Because he could not die with't Heirs gen'l living the Daughters
1 Ro. Ab. 836. 6. If a Man has Issue two Sons & devises Land to the younger and if he dies without Heirs to the elder the younger has an Estate tail for Heirs must be intended Heirs of the Body by Reason of the Rem'r over which would be other- wise idle because the elder would take the Land as Heir to his Brother without it
Nottingham a Jennings 1 Sal. 233. Devise to the younger Son & his Heirs forever And for Want of such Heirs then to his own right Heirs Adj'd an Estate tail in the Son for the Testor must mean Heirs of the Body because the Son could not die with't Heirs gen'l living Heirs of the Father
King a Remball 1 Ro. A. 836. 7. A man devised Land to his 3 Dau'rs And if either dyed before the other the one to be the others Heir And if they all died with't Issue Rem'r over Adj'd the Dau'rs had an Estate tail for the latter Clause if they die without Issue explains what Heirs were intended where it is sayed that one sho'd be Heir to the other
These Cases I think serve to prove two Points 1. that the
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