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 34
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But the Eq. of this Statute has not been carr'd so far as to the present Case viz an Alien'a by the Husb. of the Wifes Inher. in tail as is proved both from Litt. & Coke And therefore I con- clude that this Case is quite out of the Stat of Glouc. & conseq. that there being or not being Assets does not differ the Case
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But if this Case sho'd be taken to be within the Eq. of the Stat. Then there being Assets the Warr is unquestionably a Bar to the Value
For tho' no Mention is made of Assets in the latter Branch of the Stat. that speaks of an Alien'a in the Wifes Life Yet the Words "Likewise in like Manner " so couple the two Branches tog'r that it has been always taken & understood that Warr & Assets are a Bar in that Case as well as if the Alien'a was by Ten't by the Curtesy 2 Inst. 294.
And the Words of the Act in the first Branch are very express " that if any Heritage descend to the Heir from his [327] Father "he shall be bar'd to the Value " 21. E. 3. 28, 29. 1 Inst. 365. a. 8 Co. 52, 53. Sims Case.
In this Case the Assets descended are of the Value of 288-15. The Prem. £.323-15. So that in any View the Lessor can only have Judgm't for the Value of £.35.
For the Plt. it was insisted as to the 1. Point that having bro't his second Ej. within ten Years after Judgm't ag't him in the first he was within the Equity of the Saving Clause of the Act of Lim And so the Court seemed to think
As to the 2. Point it was insisted that the Lease & Rel. made no Discontinuance the Estate was not divested displaced or turned to a Right & so the Warr was no Bar -- This being un- answerable was acquiesced under
Judgm't for the Plt. Apr. 1741. Rightly as to the 2 Point. But Q. as to the first.
Vid. as to 2. Point ante 197. the Case of Richardson & Mount- joy & these Authorities 1 Inst. 388. b. 271. b. Lit. S. 606. Sey- mors Case 10 Co. 96. b. 1 Sand. 260. Cart. 208.
DANCY & al ag't WILLARD's Adm'rx
The Case is shortly this
A man dies intestate leaving two Parcels of Land & a personal Estate not suffic't to pay his Debts He has no Heir in this Colony His Widow takes Adm'econ & also enters upon the Land She administers all the personal Estate paying among others a Debt by Bond
The Plts. being Simple Contract Cred'rs unsatisfied bring this Bill ag't the Adm'x praying a Discovery of the personal Estate & a Satisf. out of that but if that is not suffic't then out of the
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Rents & Profits of the real Estate in her Possion And if they are not suffic't Then that the Lands may be sold
The personal Estate is defic't. The Bond Debt p'd by the Adm'x is more than the Debts claimed by Plts. The Question is Whether under the Circumstances of this Case the Heir being absent & unknown & the Deft. in Possion of the Land the Co'rt will decree a Satisf. to the Plts. out of the Lands.
It is charged in the Bill that if the Heir co'd be bro't before the Court he wo'd be compelled to make Plts. a Satisf. out of the Lands descended [328] to him bec'a the Bond Debt with w'ch he is chargeable hath been p'd out of the personal Assets
And this I thought so clear a Point in Eq. that I did not ex- pect I sho'd be put to the Trouble of saying much on that Head But as I understand this Point is to be disputed upon w'ch all our Eq. is built I shall be obliged to enlarge a little
I take it to be an universal Rule in Eq. that where Cred'rs who can charge the real Estate will yet take Satisf. out of the personal whereby there is a Deficiency of Assets to satisfie other Cred'rs who can only charge the personal Estate at Law Equity will put the last ment'd Cred'rs in the Place of the first & decree them a Satisf. out of the real Estate
This is certainly agreable to natural Justice that the Heir should bear that Burthen the Law has cast upon him when otherwise his Ancestors Debts cannot be satisfied It is founded upon the Rule of Equality & another Rule He that will have Eq. must do Equity
In the Nature of Things abstracted from positive Laws all Debts are equal & ought to be equally satisfied Equity however will not so far supersede the Law as to subj. the real Estate at all Events But where there are Debts with w'ch that is charge- able it will lend its Assistance to put that Burthen upon it w'ch by Law it ought to bear And will take away from the Heir his unreasonable Gain to make up the Loss w'ch the Simple Contract Cred'rs wo'd otherwise sustain
And as the Heir is intitled in Eq. to the Aid & Assistance of the personal Estate where he is charged with his Ancestors Debt & there is personal Estate suffic't to pay it So by the same Rule of Eq. where the personal Est is swept away by Debts with w'ch he as Heir or the Lands descended to him are chargeable He ought to satisfie those Cred'rs who can only charge the personal Estate at Law.
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Besides it is obvious that unless Eq. did interpose upon these Occasions a Door would be open to great Frauds for how easily might an Ex'r by Combination with the Heir suffer all the personal Assets to be to be [sic] taken for Debts with w'ch the Heir is chargeable & so entirely defeat the Simple-Contract Cred'rs
Thus as well to prevent Frauds as to do equal Justice to Cred'rs It has long obtained as a settled & established Rule in Eq. that wherever Debts with w'ch the real Estate is chargeable are paid out of the personal Assets And there is not suffic't left to satisfie other Cred'rs that the real Estate shall be answerable for the Value of the Debts paid.
And this Eq. has not been only extended to Cred'rs but even to Legatees
As where a Testor mortged his Land & also entered into a Stat [sic] to the Mortgee And by his Will devised a Legacy of 500£. And [329] the Mortger took the personal Estate in Exon upon the Stat. so that there was not suffic't left to satisfie the Legacy The Legatee had a Decree ag't the Heir to be satisfied out of the Land 2 Ch. Ca. 4. Anonimus If Eq. will give this Assistance to a Legatee How much more to a Cred'r Indeed the Chancellor in that Case declared that tho' the personal Estate ought to be applied to ease the Heir where he is chargeable with his Ancestors Debts Yet where there was a Deficiency of Assets to pay other Cred'rs or even Legatees the Heir sho'd not turn his Charge upon the personal Estate but that where both co'd be satisfied both sho'd be satisfied And sayed it looked like a Fraud to charge the personal Estate with the Martg'a And cited sev'l Preced'ts of the like Decrees
The like Point is determined in Culpeper & Ashton 2 Ch. Ca. 115. And there sayed when the personal Estate is emploied in Ease of the Heir & Lands so much of the real Estate as is eased shall be liable
So there being a Judgm't Cred'r & a Bond Cred'r And the Judgm't Cred'r took the personal Estate in Exon Upon a Bill bro't by the Bond Cred'r to be put in the Place of the Judgm't Cred'r Com'r (Hutchins) was for relieving him saying in many Cases the Heir has the Fav'r & Assistance of the Court to make the personal Estate liable to Debts in Ease of the real And he thought it reason'a e converso that as the Heir was to have Equity he ought to do Eq. But w't the Decree was does not app'r Powy a Marsh 2 Vern. 182.
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An Extrix having applied Part of the personal Estate to pay off a Mortg'a Simple-Contract Cred'rs had Relief ag't the Heir Wilson a Fielding 2 Vern. 763.
A Man indebted by Bond gave Leg's to his Children & devised his real Estate to his eldest Son in Tail The Son being Ex'r paid the Bond with the personal Estate And the Legatees bro't a Bill ag't him to be p'd out of the Land The Master of the Rolls decreed in Fav'r of the Legatees But the Chancellor (Harcourt) reversed the Decree upon the Distinction that the Lands here were devised And that it was as much the Testors Intention the Devisees sho'd have the Land as the Legatees their Legacies But he admitted if the Lands had descended the Legatees ought to have been relieved 2 Sal. 416. Hern a Merrick
Here the Testor was indebted by Bond (as in the present Case) This Bond was p'd out of the personal Assets The Legatees come for a Satisf. out of the real Estate & would have had it but for the Devise Here are Cred'rs & there is no Devise Surely then we are intitled to as much Eq. as a Legatee & ought to be relieved
Read Talb. 54. Max. Eq. 11.
Upon the Authority of these Cases I may venture to conclude that if the Heir was before the Court there could be no Question but [330] that the Plts. ought to be relieved ag't him
The only Question then is Whether under the Circumstances of this Case the Heir being absent & unknown & the Deft. in Possion of the Land the Court will not subj. the Land in the Hands of the Deft. in the same Manner as they wo'd if it was in the Hands of the Heir to satisfie the Plts. Demands.
Vid. 1 Will. 99. Gawler a Wade.
There will certainly be a failure of Justice if the Co'rt will not interpose the Heir may never come here He may sell with't coming & then the Plts. must be quite with't Remedy
I can see no Diff. in Reason between this Case & the common one where an absent pson is indebted & has Effects in the Hands of a third pson In w'ch Case this Co'rt relieves every Day
The Deft. is undoubtedly accountable to the Heir for the Profits And conseq. to the Plts. who are his Cred'rs Admitting that the Deft. ought not to acco't for any Profits past upon the Matters disclosed in her Answer Yet surely she will be for future Profits Let her then either pay an annual Rent till the Debts are discharged or deliver up the Land to be sold
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One Parcel would satisfie Plts. Deft. may keep the other for her Dower And as the Land is of small Value & will not pay the Plts. in many years we hope one Parcel will be decreed to be sold- It is the Course of Eq. where Profits will not pay Debts in a reasonable Time And was so decreed here lately in one Ogilby's Case
Boni Judicis est ampliare jurisdictionem Co'rt sho'd extend the Arm of Justice further than usual where there wo'd be otherwise a failure of Justice. Fr Jekyl Council Prec. Ch. 329.
As to the Distinction betw. Debts that are an actual Lien upon the Land & those with w'ch the Heir is chargeable in Respect of the Lands descended to him there is no Foundation for it in Reason or Authority.
No such Distinction in any of the Cases And tho' they are all Except Sal. upon Mortges &c. w'ch are actual Liens Yet the Reasons they turn upon hold as strongly where they are not so but the Heir is only chargeable
The Reasons are 1. Upon the Rule of Equality that all the Cred'rs may be satisfied 2. bec'a the Heir has freq. the aid of the personal Estate & therefore ought to do the same Equity he receives & 3. to prevent Frauds & Combinations betw. the Heir & Ex'r
All these Reasons equally hold whether the Land is chargeable itself or the Person of the Heir in Respect of the Land
But the Case in Salk. was upon a Bond Debt & so is a full Ans'r to this Obj. See also Talb. 54. Chancellor's Opin.
EDMONDSON VS TABB. In Council. [331]
Thomas Allaman seised in Fee of 700 A. of Land died Intestate leaving Issue Judith a Dau'r by his first Wife and by his 2d Wife 3 Sons John, Thos. & W'm
John & Thos. both died under Age with't Issue
W'm entered & was seised & died seised in 1732. leaving a Wife Thos. a Son & Sara a Daughter.
After his Death his Wid'o cont'd in Possion & marr'd John Tabb by whom she had Issue Humphry Toy Tabb
Thos. the Son of W'm died soon after his Fa'r under Age & with't Issue Sara died in 1741. with't Issue being ab't 12 Years old
Tabb & his Wife being in Possion sued out an Escheat Warr't in Order to obtain a Grant of the Land either to the Wife as
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being in Possion or to their Son H. T. Tabb Bro'r of the half Blood to Sara
An Inquisition has been taken & returned Judith the Dau'r of Tho's Allaman the Grandfa'r enters a Caveat She is Aunt of the half Blood on the Fathers Side to Sara
Since the Inquisition Tabb & his Wife are both dead I app'r for their Son the Bro'r of the half Blood And the Question is Wheth'r Yo'r Hon'r will order a Grant to him Or to the Aunt of the half Blood.
They are both equally excluded from the Succession by the Rules & Maxims of Law concerning Descents I presume therefore Yo'r Hon'r will consider this Case abstracted from those Rules & favour that Party whose Pretensions are best supported by Reason Equity & natural Justice
The Aunts' Equity is founded solely in this that the Inherit- ance came originally from the Allamans And she being one ought to be preferred to my Client who is only a Bro'r of the half Blood by the Mother's Side & not of the Blood of the Allamans
This at first View may seem an Argum't of some Weight but when closely consid'd it will app'r to have little Foundation in the Reason of things & strict natural Justice Its whole Weight & Force if I mistake not take its Rise from the Rules of Law concerning Descents It is a Rule in the Law of Descents that an Inheritance coming from the Fa'r shall never resort to the Line of the Mother but shall rather escheat
This Rule is in a Manner peculiar to the Law of England I cannot say it is absolutely so because I have read that in some of the Provinces of France w'ch are governed by their own par- ticular Customs the same Rule obtains But it is not the public or general Law of the Kingdom Neither is it an Institution of the Roman or Civil Law Of the Jewish or Grecian Laws or any other Laws that ever I read of
It is very certain Mankind are generally preposses'd in Fav'r of the Laws of their Country And are apt to think them the most agreable to Nature & Reason But I humbly appr that the Rule we are speaking of is a meer arbitrary Institution not founded on the Reason of Things or natural Equity & Justice [332] For where is the Reason that a very remote Relation on the Father's Side sho'd be preferred to a very near Relation on the Mothers Nay that the Land shall rather escheat than come to such near Relation The Law of Nature calls the nearest Relations to the
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Succession for this Reason that Men are bound by the Laws of Society to provide for them in the first Place And the Presump- tion is that there is the greatest Affection towards them Every Law then that excludes the nearer Relatives in Fav'r of the more remote is in my humble Opinion contrary to the Law of Nature & Reason
I have sayed thus much Sir in hopes it may serve to prove w't I at first advanced that our Adversarys Pretensions are not founded in the Reason of Things & natural Justice but take their whole Force from a Rule of Law conc Descents w'ch I apprehend has nothing to do in the present Question. Nor prove any Thing as to the Reason & Equity of the Thing for tho' these Rules ought to be strictly adhered to in Courts of Judicature where the Judges are bound by an Oath to determine according to Law Yet where a Matter is left at large to the Will of the Prince or of those who act under him I humbly conceive the Law of Nature & Reason is the best Guide to foll
This Sir is the Ans'r I give to the Pretensions of our Adversary I will now beg Leave to say a Word of the Equity on our Side
And first, I appr. that as we are in Possion & have made the first Applica. We are intitled to a Grant by the Charter granted to this Country the 18. Car. 2. The Words of the Charter are. " All Lands possed by any Subj. inhabiting in Virg'a w'ch is " escheated or shall escheat shall & may be enjoyed by such " Inhabitant & Possessor his Heirs & Ass. forever paying 2 1b " Tob'o for every Acre
I can't say how this Charter may have been construed But it seems plain to me that the Intent was that the Possessor of any Land escheated sho'd be preferr'd to a Grant of it How else can the Words be satisf'd " All Lands possed w'ch shall escheat shall & may be enjoyed by such Possessor " If this was not the Intent of the Charter I sho'd be glad to know w't the Use of the Clause was or if those Words " Lands that shall escheat "
I shall submit this Point to Yo'r Hon'rs I thought it my Duty to urge this Matter for my Client And the rather as I have not known any Determination of the kind
But if this will not prevail Then I humbly contend that We are the nearest Relation a Bro'r of the half Blood And on that Acco't have the best Title to be preferred It will scarce I pre- sume be disputed but that a half Bro'r is a nearer Relation than a half Aunt If then the Rules of Law conc Descents & the
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Argum'ts deducible from thence are out of the Question as I conceive they are I do humbly contend that by the Law of Nature we have the best Right to succeed
There is no Law I believe except the Law of England that absolutely excludes the half Blood from the Succession And I [333] believe it would puzzle a Man to assign any one tolerable Reason why it should be so I mean in the Reason & Nature of Things
The Roman or Civil Law is certainly much more equitable w'ch allows Brothers of the half Blood to succeed in the second Place that is where there are none of the whole And in collateral Descents makes no Distinction betw. the whole & half Blood.
1. Domat 684 Hist. Com. Law. 214.
The Jewish Law makes no Distinction between the whole & half Blood Nor do I remember to have read of any such Dis- tintion in any of the Grecian Laws
The Roman Law is all'd to be the most equitable Law in the World And I presume will be thought no bad Guide to follow
Besides it is plain that there is no other Foundation for the Difference betw. that & the Law of Engl'd but the Rule conc. Descents for even by our Law in the Succession to Chattels no Diff. is made betw. the whole & half Blood
Upon the whole I rely first upon the Charter We are in Posses- sion & made the first Appl.
2. That if we are excluded by the Rules of Law So are they And then as we are the nearest Relation We have the best Title to be preferred.
3. We sho'd even succeed by the Roman Law And as that is y'e best Pattern of natural Equity & Justice I hope it will be a good Rule for Yo'r Hon'rs to follow
The Reason why the Laws prefer the nearest Relations is from a Presumption that the Intestate would have done so if she had made a Will If this Arg't is to weigh there can be little Doubt but that a pson wo'd rather prefer a Bro'r of the half Blood than an Aunt
. I only add that we have some Equity in Applying first & having been at the Expence of an Inquest &c.
Our Rules of Descent are meer arbitrary Institutions not founded on the Reason of Things or natural Justice And had no better Foundation perhaps than Accident or the humours
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or Designs of particular Men They are not the Subj. of any written Law but have been introduced by Custom & Usage & have undergone various Alterations as app'rs from Sr. M. Hale Hist. Law.
[Barradall proper (Law Library Copy) apparently ends here. The pages that follow are in a different handwriting, and the editor will be better able than I am to determine their relation to Barradall's Reports. To me they seem to be the opinions of the persons who signed them .- W. W Scott.]
'The pages follow'g are in a different hand, and horribly misspelled throughout -W. W. S.]
[334]
A CASE
Mary Whaley of the Parish of Bruton near Williamsburg in the Colony of Virginia but at the time of her Death and several Years before at the Parish of St. Marg'ts Westminster in the County of Middlesex Widow made her last Will and Testa. in Writing under Hand and seal bearing date 16th of Feb'r 1741, and executed the same in the Presence of three Witnesses who subscribed their Names thereto did thereby among other things, give devise & Bequeath as follows, I give Devise and Bequeath unto the Minister & Church Warden for the time being of the s'd Parish of Bruton in the County of York in the Colony of Virginia and their Successors a Certain Peice or Parcel of Land in the said Parish of Bruton Containing by Estimation 10 a. little more or less together with Matteys School House and Dewling House lately Erec'd and Built thereon for the Use of a School-master to teach the neediest Children in the same Parish who shall be offered (in the Art of Reading Writing and Arethmetic) and Bounded by the Main Road leading to Queens Creek and beginning at a Gully of Runing Water surrounding the s'd 10 Acres of Land and adjoining on Mr. Peppers Land which peice or parcel of Land, Schoolhouse & Dwelling House together also with all out Houses, Gardens and appurtenances thereunto Belonging, I give and devise unto the s'd Minister and Church Wardens for the time Being and their successors forever upon Trust to Continue the same for the Use Benefit and Behoof of the said Matteys school for the purposes above mentioned to Eternalize Matteys School by the Name of Matteys School forever and to and for no other Use intent or purpose whatever I give to Matteys School af'd the summ of fifty Pounds Sterling to be paid to the said Minister and Church Wardens for the time being and their Successors at the rate of ten pounds A year for the Use
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of the same School and I hope it will be an incouragement to promote the Education of Children there [335] The rest and residue of my Estate after all the above mentioned Legacies are paid and satisfied except and reserving to myself the Sum of one hundred Pound to my own Disposal by Word of Mouth Codicil or Writing as I shall think proper I give & Bequeath the same to the Minister and Church Wardens for the time being of the said Parish of Bruton in Trust for the Use & Behoof of the s'd School called Matteys school for the Purposes above mentioned
And made James Frauney Ex'r of her s'd Will Who hath Proved the same in the Prerogative Court of Canterbury and taken upon him the Execution thereof.
The s'd Mary Whaley died 31 January 1742
Vide the Will
By an Act of Parliament made in the 9th Year of his Present Majesty King George the Second intitled An Act to Restrain the Disposition of Lands whereby the same Became unalienable is among other things Enacted that from and after the 24. of June which shall be in the Year of our Lord 1736 no Mannors Lands and Tenem'ts Rents advousons or other Hereditaments Corporeal or Incorporeal whatsoever or any sum or sums of Money Goods Chattels Stocks in the Publick Funds Securities for Money or any other Personal Estate whatsoever to be laid out or disposed of in the Purchasing of any Lands or Tenements or Heredita- ments shall be given granted aliened Limited released transferred or assigned or appointed or any ways Conveyed or settled to or upon any Person or Persons Bodies Pollitick or Corporeate or otherways for any Estate or Interest whatsoever or anyways Charged or incumbered by any Person or Persons whatsoever in Trust or for the Benefit of any Charitable Use whatsoever unless such gift Conveyance appointment or Settlem't of any such Lands or Tenements or Hereditaments sum or Sums of Money or Personal Estate (other than Stocks in the Public Funds) be and be made by Deed indented sealed and Delivered in the presence of two or more Credible Witnesses 12. Calender Months at Least before the Death of swch Donor or Grantor includ'g the Days of Execution & Death and be inrolled in his Majesties High Court of Chancery within six Kalender Months next after the Execution thereof and unless such stock be transfer'd in the Publick Books usually Kept for that Purpose six Kalender Months at least before the Death of such Donor or Grantor in-
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cluding the Days of Transfer & Death unless the same be made to take Effect in Possession for the Charitable Use intending [336] Immediately from the making thereof and be without any Power revocation Reservation Trust Condition Limitation, Clause or agreement whatsoever for the Benefit of the Donor or Grantor or any other Person or Persons Claiming under him
And be it further Enacted by the authority af'd that all gifts Grants Conveyances Appointments Assurances Transfers & Settlements whatsoever of any Lands Tenements Heriditaments or of any Estate or Interest therein or of any Charge or Incum- berance Affecting or to affect any Lands Tenements or Heridita- ments or of any Stock money Goods or Chattels or other Personal Estate or Securities for Money to be laid out or disposed of in the purchase of any Lands Tenements or Heriditaments or of any Estate or Interest therein or of any Chare1 or Incumberance affecting or to affect to or in Trust for any Charitable Uses whatsoever which shall at any Time from and after the 24th of June 1736. be made in any other maner or form than by this Act directed & appointed shall be absolutely and to all intents and purposes nul and void.
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