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 30
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B313
BARRADALL'S REPORTS
Word Heirs in the Understanding of People unskilled in the Law or in Comun Speech as we say imports the same as Issue or Heirs of the Body and 2. that the Word Heirs in a Will is often taken to mean Heirs of the Body And the last Case proves further that where the two Terms Issue & Heirs are both made Use of in the same Devise It is taken that the same Heirs are meant in both Cases Indeed the common Case of a Devise to a Man & his Heirs & if he die with't Issue Rem'r over puts this last Point beyond Contradiction for it was never denied but that such a Devise made an Estate tail And that Heirs in the first Part of the Devise sho'd be intended such Heirs as are mentioned afterwards viz. Issue.
And it is not material I take it whether Issue happens to be mentioned first or last. The Intention is collected from the Word more than the Manner of placing it As
A Devise to a Man & the Heirs of his Body And if he die with't Heirs Rem'r over makes an Estate tail (2 Vern. 281. [291] per Cur.) tho Heirs of the Body are mentioned first & Heirs last for it is suppos'd the same Heirs are intended in both Places
Indeed the first Words in a Will are often taken as the best Expositors of the Testors Meaning and to serve as a Guide to those that follow as in Buck & Frenchmans Case 1. And. 8. (It is Tuck & Frenchman in Dy. 171) Devise to his Wife for Life Rem'r to his Cousin & the Heirs Male of his Body And if he dye with't Issue (not saying male) Rem'r over Adj'd the Cousin had only an Estate in tail male for tho' the latter Words If he die without Issue would make an Estate tail gen'l Yet Heirs Male being mentioned before shew the Intention what Heirs were meant In Godb. 16. It is sayed the same Point was adj'd betw. Glover & Tracy
Which last Cases prove that Issue or Heirs of the Body being named first or last does not differ the Case but a special Heir being once named it is reasonable to suppose the same is intended by the gen'l Term Heir And there may perhaps be this further Reason too for such a Constr. that by Heirs comon People generally intend Issue or Heirs of the Body.
But it will be objected to me I suppose that by this Constr. the latter Words in the Devise Otherwise to she & her Heirs forever are quite useless Ann would have had an Estate tail with't them And it shall never be supposed a Man intends to make a fruitless Devise
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B314
VIRGINIA COLONIAL DECISIONS
I ans'r it is no uncommon Thing to meet with Tautology & useless Repetitions in a Will Sometimes Words that are perhaps strictly unnecessary are added for the clearer Manifest'a of the Testors Meaning And sometimes & that very frequently thro' the Unskilfulness of the Writer We are to consider that Wills are supposed to be made & indeed often are in Extremis In a Mans last Moments when he has not Opportunity for good Council or Advice & so are wrote by Men unskilled in the Law It is for this very Reason that so great a Latitude is allowed in the Constr. of Wills & strict & legal Forms dispensed with
Now these Words might be added either by the Direction of the Testor Ex abundanti to shew more explicitly his Intention to give Ann an Estate of Inheritance which she had only by Impl. before but then whether he did not mean the same kind of Inheritance he had mentioned before is what must be sub- mitted
Or these Words might be added thro' the Unskilfulness or Wantonness of the Writer currente Calamo as we say FitzG. 29. And supposing either of these to be the Case the Addition of them can weigh nothing
But taking this Obj. in its full Strength allowing these Words to be quite unnecessary to give an Estate tail to Ann which I must grant Yet on the other Hand if it be considered that here is an apparent Intention that the Issue of Ann sho'd have the Land it must be submitted [292] whether so plain an Inten- tion ought to be defeated by a Constr. collected from Words the Meaning of which at best is doubtful Especially when another Constr. may be made of those Words consistent with the appar- ent Intention The Question in short is Whether it be better to follow Certainty or Doubt & Incertainty It is certain an Estate tail will pass by the first Part of the Devise It is at best but incertain what was intended by these latter Words
The Case of Banks & Banks (ante 283) heard the other Day in this Court cannot be forgot
I rely on the Limitation over to Harwar in Case Ann die with't Issue as what makes an Estate tail in Ann The Words Dying with't Issue where they are general & indefinite not circum- scribed by Time nor tied up to any Contingency always make an Estate tail in a Will I grant there are many Cases where the Lim is upon dying without Issue before 21 or living another
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BARRADALL'S REPORTS
or without Issue living that in leaving Issue at his Death that it has been adj'd no Estate tail was created by those Words
Dying without Issue as Pell & Brown Cro. Jac. 590. which was a Devise to one Son And if he died with't Issue living another Son Rem'r over Hall & Deering Hard. 148. Devise to one & his Heirs & if he die without Issue before 21. Rem'r over Collenson & Wright 1 Sid. 148. where the Rem'r is limited upon dying before 21. & without Issue living In all these Cases the 1. Devisee was adjudged to have a contingent Fee because the Dying without Issue could not be taken as Words of Lim being either circumscribed & limited to fall within a certain Time or tyed up to the Contingency of happening in the Life of another But I think I may venture to say that there is no Case where the Dying without Issue is absolute & indefinite as here that these Words have been taken as Words of Contingency or to speak more properly as Words of Determination but have always been taken to be Words of Lim either to enlarge or qualifie the Estate given before I make Use of the Word Determination in Opposition to Lim The latter has been just explained By the form'r I mean where the Dying without Issue is constr. to be only an Indication of the Testors Mind when he would have a particular Estate given before, determine & another Estate given afterwards commence As in the Case just now cited of a Devise to one & his Heirs And if he die without Issue before 21 Rem'r over Here the Devisee has an Estate in Fee determinable upon his dying with't Issue before 21. If he dies before that Time his Estate determines & the Rem'r commences And so in most of the Cases upon this Subject the Question is whether Dying without Issue are to be considered as Words of Lim or of Determ. Hard. 148.
[293] Now to consider the Case before us in this View whether Dying without Issue are to be taken as Words of Lim or of Determ It will I think be pretty evident they could never be intended the latter for by the I. Part of the Devise Ann has only an Estate for Life And if Dying without Issue are construed as Words intended to shew when that Estate sho'd determine this Absurdity will follow that Ann took an Estate for Life Determinable upon her Dying without Issue Now the Rule is that a Testor shall never be supposed to intend Absurditys And therefore any Constr. having such a Tendency ought to be rejected Then I believe in all the Cases where Dying without
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Issue are construed Words of Determ an Estate of Inheritance was given before. Q Collenson & Wright seems not so
I beg Leave to observe further the Force of the Words Dying with't Issue where they are general as here I know no Instance where they have not been adjudged to make an Estate tail And that sometimes ag't a seeming Intention of the Testor to the contrary As where an express Estate for Life is first limited which is the Case of King & Melling 1 Vent. 214. 225. In Hales Time The Case was a Devise to the Son for Life And after his Decease to the Heirs of his Body by a 2. Wife And for Want of such Issue Rem'r over with a Proviso that the Son might make a Jointure to his 2. Wife Here was an express Estate for Life The Lim to the Issue was after the Sons Decease And there was a Power to make a Jointure which was unnecessary if an Estate tail was intended Yet notwithstanding these Objections such was the Force & Operation of the Lim to the Issue And for Want of Issue Rem'r over that it was adj'd to make an Estate tail in the Son This is looked upon as a leading Case and the Authority of it has never been shaken
So in the Case of Shaw & Weigh FitzG. 7. heard in the House of Lords April 1729. which as to this Point was a Devise In Trust for his 2 Sisters during their Lives without committing Wast And if either of them happen to die leaving Issue or Issues Then in Trust for such Issue or Issues of the Mothers Share Or else in Trust for the Surviv'r or Survivors of them & their respective Issue or Issues And if both my said Sisters die without Issue & their Issue or Issues die without Issue Rem'r over Here it was obj. that an express Estate for Life was given & the restraining from committing Wast was a plain Indication in the Testor to pass no greater Estate for it would have been impertin't to add such a Clause if he intended an Estate tail because such a Power is incident to an Estate tail And it could not be thought he would restrain from committing Wast And yet put it in their Power to alien the whole Land as Ten't in tail might do by docking the Intail. There are other Circumstances in the Devise that are taken Notice of to prove the Testor intended only an Estate for Life But it was argued on the other [294] Side that the Word Issue in a Will is a Word of Lim & being devised first to the Sisters & afterwards to their Issue And for Want of Issue Rem'r over it made an Estate tail And so it was adjudged.
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BARRADALL'S REPORTS
These Cases shew how forcible Issue or a Lim upon dying without Issue are in a Will They create an Estate tail by Opera · tion of Law as Hale said in King & Melling supra Went. 232. "Tis possible the Testor intended but an Estate for Life Yet by Consequence & Operation of Law it is an Estate tail according to the Rule in Shellys Case 1 Co. 99. Where the Ancestor takes an Estate of Freehold And there is a Lim afterwards to his Right Heirs or Heir of his Body that they are Words of Lim & not of Purchase Issue in a Will is equivalent to Heirs of the Body And it matters not whether an Estate given by Will be by Impl. or express Lim & therefore according to this Rule A Devise to one And if he die with't Issue Rem'r over would make an Estate tail by Operation of Law if there was not so apparent an Inten- tion from the Words as I conceive there is in the present Case. But we have no Occasion to rely on the Operation of Law Because no express Estate for Life is given And so our Case is stronger. than either of those last cited.
I must not omit to mention the Case of Timson & Robertson Adj'd this Court which was a Devise to one & his Heirs And if he died before 21 or without Issue Rem'r over Here notwith- standing there was a seeming Intention to restrain the dying without Issue to the Age of 21. Yet it was held to be an Estate tail The words there in my humble Opinion were much stronger to create a contingent Fee than in this Case
Obj. The Testors Intention is plainly this First to give Ann an Estate for Life Then if she happen to die with't Issue to Harwar Otherwise that is if she leaves Issue at her Death to her in fee And so she took a Fee simple upon the Contingency of leaving Issue at her Death
Ans. By this Constr. the natural Force & Import of the Words Dying with't Issue must be rejected Had the Words been if she happen to die leaving no Issue or without Issue living or any other Word added to shew that he intended to restrain the generality of the Term Dying with't Issue there might have been some Colour for such a Constr. But it being left absolute & at large here To make such Constr. must confound the Distinction that has been always kept up betw. a Lim upon dying with't Issue generally & where it is restrained to a particular Time or tied up to some Contingency The Cases that I have cited and all the Cases that can be cited will shew they turn upon this Distinction. Besides as it was so easie for the Testor [295] to
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B318
VIRGINIA COLONIAL DECISIONS
have added a Word or two in Case he had any such Intent It is reasonable to infer from his not doing so that he had no such Intent.
As for any Stress that may be laid upon the latter Words " Otherwise to she & her Heirs for ever " It has been answered already They might be thrown in thro' the unskilfulness of the Writer Or they might be superadded to shew more expressly the Testors Intention to give Ann an Estate of Inheritance But then we say having made Use of the Word Issue before in the same Clause It is natural to conclude he meant the same Heirs in both Places
We think it apparent the Testor had an Intent to provide for Ann s Issue as well as herself That he never intended the Rem'r to Harwar sho'd take Place so long as there was any Issue of Ann And in Consequence that he intended the Issue sho'd have it in the mean time till the Rem'r took Place And then it is clearly an Estate tail We think this appears to be his first & primary Intent And we submit whether Constr. ought not to be made to serve that Intent rather than a different one prevail that will entirely destroy it And we hope it will be considered that this latter Constr. is to be inferred only from a few loose Words added perhaps by Chance And w'ch at the same time may very well bear an Interpretation consistent with the Constr. we contend for.
We rely on the Case of (a) Banks & Banks where superfluous (a) Ante 283.
Words added after the Lim of the Estate tail were rejected Because the meaning of them was doubtful And upon the Case of Timson & Robertson where the Words "Dying before 21" were rejected to make way for the more express Intent collected from the Words Dying without Issue to make an Estate tail
Obj. But the Rem'r to Harwar gives him only an Estate for Life And it is absurd to suppose the Testor would give such an Estate after an Estate tail
A. This is no uncommon thing in Wills often (as has been observed) wrote in a hurry & without Council or Advice In the Case of Webb & Herring cited above the Estate given to the Dau'rs in case they survived the Son & his Heirs was expressly for their Lives Yet this was made no Obj. but adj'd an Estate tail in the Son Even where the Rem'r has been adj'd void in
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B319
BARRADALL'S REPORTS
point of Lim Yet it has been adj'd an Estate tail by force of the Rem'r as Nottingham a Jennings ante 1 Sal. 233. So that noth- ing can be inferred from the Nature of the Estate given to Har- war to shew the Testors Intent one way or other
Obj. A latter Devise controul a former And here the latter Words give a fee
Ans. I agree where two Devises are inconsistent with each other As where by the first Land is given to A. & by the second to B. There [296] perhaps the latter Devise shall prevail That which is last wrote being presumed to be the Testors last Will & Mind But this Rule cannot hold where the same Thing is twice devised to the same Person There it is to be collected from the whole Will what Estate the Testor intended to pass And it is not always the last any more than the first that is regarded This is evident from the Case of Buck & Frenchman ante The 1. Devise was to the Heirs male the latter to the Heirs of the Body Yet it was held to be an Estate in tail male Here the first Words guided the Constr. In King & Remball ante Heirs are mentioned in the 1. Devise & Issue in the latter This was adj'd an Estate tail Here Constr. was made from the latter Words From these Instances it is plain that the Intent is collected from the whole Will And sometimes the first sometimes the last Words govern the Constr.
Obj. An express Estate shall not be destroyed by an Estate by Impl.
Ans. That is true taken thus: An Impl. of an Estate of Inheritance shall not ride over an express Lim of an Estate of Inheritance before 1 Vent. 230. per Hale This was I take it the reason of the Resolution in Popham & Bamfield 1 Sal. 236. Devise to A. for Life Rem'r to his first Son in tail male & so on to the tenth Son And if A. died without Issue male Rem'r over Here A. having an an Estate for Life & an Estate of Inheritance being limited to the Sons they could not collect a contrary Intent by Impl. to give A. an Estate tail.
But it is far from being a gen'l Rule that an Estate by Impl. shall never prevail ag't an express Estate The contrary is evident from the Cases of King & Melling & Shaw & Weigh before remembered As well as from the Common Case of a Devise for Life And if he die with't Issue Rem'r over which was never denied to make an Estate tail notwithstanding the express . Estate for Life FitzG. 12. Apr. 1739. Judgm't was given for the
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B320
VIRGINIA COLONIAL DECISIONS
Deft. viz. that it was an Contingent Fee having been so adj'd once before in 1730. The Courts Opin. seemed to turn upon the Word Otherwise which they sayed shewed plainly an Intention to give a different Estate if Ann had Children.
For the Plt. For the Deft.
Lee, Tayloe Lightfoot, Randolph
Custis & Digges Dandridge, Grymes
Carter Byrd & Blair
[297]
OCTOBER COURT MDCCXXXIX.
SMITH a SMITH Ej.
Mary Smith seised in fee Mar. 2. 1702. makes a Deed poll in these Words "For the natural Love & Affection that I bear to my Son Geo. Smith I do make this my Deed of Gift of the sd. 200 A. of Land (the Premes in Question) unto him the s'd Geo. Smith & his Heirs forever after my Decease But it is my true Intent & Meaning to have free Ingress & Egress into all & every Part of the s'd Premes during my natural Life And if it shall happen that the s'd Geo. Smith shall die without Heirs Then I give the s'd Land to my Son John & his Heirs forever"
. G. Smith died with't Issue in the Life of the Grantor After whose Death she with her 2d Husband Fairfax conveied the Premes in Queon to the Deft. & is since dead The Lessor is Bro'r & Heir of Geo. Smith
The only Question in this Case is Whether any Estate passed to Geo. Smith by this Deed for if any Estate did pass I think it cannot be disputed but that it was a Fee simple And then the Lessor of the Plt. as his Heir has a good Title
The Objection I apprehend will be that the Estate being limited to him after the Death of his Mother is void For that a Freehold can not be limited in præsenti to commence in futuro
.It must be agr'd that the Maxim of the Comon Law is A Freehold shall not commence in futuro But since the making of the Statute of Uses the Maxim has in a Manner lost all its Force & Effect for it is universally agreed that the Maxim will not hold upon any Conveiance by Way of Use but only in Con- veiances at the Comon Law as we call them It will be therefore necessary to see whether this Deed is to operate as a Conveiance at Com Law or as a Conveiance to Use
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The Distinction between these two kind of Conveiances is well known Conveiances at Com Law are such as were in Use & Practise before the Stat. of Uses 27. H. 8. Conveiances to Use are such as have been introduced since the making of that Statute The different Rules of Construction upon the one & the other of these Conveiances are as [sic] well known Conv. at Com Law are construed strictly according to the strict & rigid Rules of the Com Law But Conv. to Use are allowed a more liberal Construction They participate in some sort of the Nature of Wills They are construed according to Equity & the just Intention of the Parties The reason of this Difference I shall have Occasion to shew presently 1 Inst. 49. a. 1 Vent. 138. 373. Nel. Sut. 242. Poll. 525. 8 Rep. 93. 3 Lev. 370.
But I will first beg Leave to examine a little the reason of the Maxim just now remember'd viz. That a Freehold shall not commence in futuro It is regularly a Rule of Law that the Freehold shall never be put in Abeiance that is so as not to be existing in some Person And both this Rule & the Maxim we are speaking of are [298] founded upon this reason that there may be always a Tenant to the Precipe I say regularly the Freehold shall not b: in Abeiance because in some Instances Ex necessitate rei it may be so As where an Incumbent dies till the Church is full again &c. Co. Litt. 342. 343.
For the clearer Understanding of this it may be necessary to explain what is meant by Tenant to the Precipe Anciently till within 200 Years or less Where a Man was disseised or had a Title to Lands he had no Remedy to recover the Possession but by a real Action (Ejectments are an Invention of later Times) Now the first Process in real Action is called a Precipe And the Law requires that the Deft. or Person ag't whom such Precipe is brought sho'd have a Freehold in the Land whence he is called Tenant i.e. Tenant of the Freehold It is obvious then that if the Freehold could be put in Abeiance so as not to be existing in any Person A Man who had a Right to recover the Possession of any Lands could have no Remedy for want of a proper Person ag't whom to bring his Precipe And this would be the Conse- quence of it in a Conv. at Com. Law a Freehold might be created in præsenti to commence in futuro Because in all such Conveiances there is a Transmutation of Possession And no Estate left in the Grantor And therefore as the Freehold would be out of him by the Conveiance if it should be allowed to be
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good It must be in Abeiance that is in nobody till the future Estate commenced
This I take it is the true Reason of the maxim that a Freehold shall not commence in futuro But we shall see presently that this Reason will not hold in Conveiances to Use And that there- fore the Maxim cannot at all affect such Conveiances
It will however be necessary in the first Place to shew that the Deed before us ought to be construed as a Conveiance to Use And then I hope I shall have an easie Task to prove that Geo. Smith took a good Estate by way of future Use. These are the 2 Points I shall insist on
As to the 1. The Judges of late Days for more than a century past have laid aside the ancient stiff Adherence to the rigid Rules of the Com. Law in the Constr. of Deeds They have more Regard to the Substance that is the Estate intended to be passed than to the Shadow that is the manner of passing 3 Lev. 371. And therefore if a Deed cannot operate one Way so as to give it the Effect intended they will construe it to operate another Way And this sometimes ag't the seeming Intention of the Parties as to the manner of Operation They consider the principal Intention that is the Passing of the estate And con- strue the Deed so as to fulfil that Intention And they will [299] never suffer a Deed to be defeated or to have no Effect if by any Means they can construe it so as to give it the Effect intended Lord Hobart who lived about 100 years ago commends those Judges who are curious & even subtil to invent Reasons & Means to make Deeds effectual according to the just Intention of the Parties Hob. 277. And Sir M. Hale quotes this Passage upon two Occasions as an excellent Rule for Judges to follow 1 Vent. 141. 378.
The Deed before us can operate only 3 ways Either as a Feoff- ment a Bargain & Sale or a Coven't to stand seised the first is a Conv. at Comon Law the two latter are Conv. to Use Every- body knows that Livery of Seizin is necessary to a Feoffment And that in Conv. to Use there must be a good Cons. to raise the Use This Deed cannot operate as a Feoffment for want of Livery It cannot operate as a Bargain & Sale for Want of a proper Cons. viz. the Paiment of Mony which is the only good Cons. to raise an Use by Way of Barg. & Sale 1 Vent. 137. If therefore it does not operate as a Coven't to stand seised it must be absolutely void & can have no Effect at all The Intention of
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the Grantor in making it must be entirely defeated And how consistent that will be with the constant Resolutions of the Judges will best appear from the Cases themselves
The first I shall take Notice of is Tebb & Popplewell 2 Ro. Abr. 786. (40. Eliz) A Woman in Cons. of Marriage to be had between her & one F. by Deed inrolled gave granted & confirmed Land to A. & his Heirs with Clause of Warranty but no Livery was made The Deed being inrolled shew'd an Intent it sho'd operate as a Barg. & Sale The Words give & grant & confirm which are proper to Conv. at Com. Law shewed an Intent it sho'd operate as a Feoffment But because it could not operate as the latter for Want of Livery nor as the former for want of a good Cons. viz. Mony Therefore rather than the Deed should be void it was adj'd a good Use did arise to A. by Way of Coven't to stand seised there being a Cons. proper to raise an Use in such a Conv. viz. Marr. N. B. It is not expressly sayed to operate as a Cov't but it could no other Way. Poll. 534. takes it so
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