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 7
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B70
VIRGINIA COLONIAL DECISIONS
Resolution = the Case and are against the Reporter's Opinion vide. Is there any Thing more frequent in our Books than to see the Intention of a Tes tor prevail against ag't [sic] the legal Sense and Import of Words Indeed if the Intention be secret as Mr. Needler States the Proposition I don't know how it should prevail An Intention must be more or less apparent or it cannot be known at all But if by a secret Intention is meant an hidden or implied one in Contra-distinction to that which is expressed Then the Distinction is not true nor has any Founda- tion in Reason or Authority.
I take it then the Testator's Intention is to be sought after in this Case which if it be not sufficiently evident upon the Face of the Will itself I think is put beyond all Controversie upon the Proof and Circumstances
But I must first clear the Proof from some Objections It is sayed the Witnesses vary There is no Kind of Variance [67] except that one heard more than the other The Writer of the Will who was nearest the Testator and most attentive heard more than they who were at a Distance in the Room It is also objected ag't the Proof in general that it ought not to be re- garded at all being to oust the legal Intent And that Parol Proof is never admitted but to corroborate and support the Legal Intent This is another Distinction that I must own I am a stranger to Neither can I agree that there is any express Legal Intent in this Case It must be owned to be in some sort doubtful upon the Words of the Will whether the Tes'tor intended the Plts. should have each of them a Share or only one Share among them And that Parol Proof and Collateral Circumstances are admitted to explain a Tes'tor's Intent that appears doubtful surely will not be denied. There being so many Cases express in Point 2 Vern. 99.252. 506. 517. 593. 648. 673. & 675. It is for this Purpose we offer our Proof and surely it must have its Weight and if it has it can hardly remain a Doubt with any One that the Tes'tor intended no more than one Share to the Plts.
I cannot imagine why the naming the Children by their names should make any Difference as is much insisted upon tho' with- out any Reason assigned that I have heard But this was necessary to avoid the Force of the Determination in Tucker & Tucker's · case where indeed the Children are not particularly named But admitting such a Distinction ought to prevail in General Cases Here it can avail nothing because it appears the Occasion of
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BARRADALL'S REPORTS
naming them was accidental and because Godwin had four chil- dren. The Children of Godwin are not so nearly related as the other Legatees being only a Sister's Children It is a natural Presumption that men have the greatest affection to their nearest Relations If the Mother of these Children had been alive can it be supposed the Tes'tor would have made so great a Difference as to give three times as much to her as to the rest of his Brothers and Sisters Much less Reason is there to suppose he could intend so much for her children for whom he must be presumed to have a less Degree of Regard and Affection To put them in the Place of the Mother was certainly all he intended and to Consider them as her Representative. It appears too in the Proof these Children were little in his thoughts. His manner of taking Notice of them is a very strong circumstance to prove he did not intend to so great an Advancement and Provision so much beyond what he did for his own Brothers and Sisters.
Decreed that Plts. were intitled only to one Fifth among them by the opinion of Lee, Tayloe, Lightfoot, Custis, Grymes & Byrd Carter & Diggs con. Robinson thought the Surplus ought to be divided into Thirds viz. the Brother to have one Third the Sisters another and Godwin's Children another. April 1738.
*Vide 2 Will'ms 383. Blackler v. Webb.
[68] ANDREW GILES & MARY HIS WIFE & MARY MALLICOTE Plts. S. C. Jeff. 52.
Morey Mallicote Deft. In Detinue upon a Special Verdict. The Plts. Father Thomas Mallicote by his Will devised " to his son John Quashey a Negro Man to his son Thomas the Child his Negro Woman Betty then went with and Tomboy a negro Man " and gives Slaves to his other Children and declares his Will " That his Wife should have the Work of his Sons Negroes till they came of age And if either of his Children should die without Heirs of their body lawfully begotten Then that their Part should be equally divided between the Survivors" And gives Negro Betty to his Wife during Life and after her Death to be divided with her Increase among his children. The Testa- tor's Sons John and Thomas are dead and would not be 21 if now living The Slaves in Question are Quashey and Tomboy Specifically devised to John and Thomas and Quashey a Boy the Child Betty went with at the making of the Will but not born
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B72
VIRGINIA COLONIAL DECISIONS
till after the Testator's Death .. The Plt. Mary the Wife of Giles is the Testator's Wife named in the Will (tho' not so found in the Verdict) And the Plaintif Mallicote is one of the Testator's Daughters The Deft. is the Testator's eldest Son and Heir and Heir to his Brothers John and Thomas and is more than 21 years old.
There are but 2 Questions in this Case upon the merits
1. First. Whether the Testator's Wife has a Right to keep the Slaves devised to John and Thomas till the time they would have been 21. Or whether her Interest determined at their Deaths
2. Whether the Devise to Thomas of the Child Betty went with be good tho' the Child was not born till after the Testator's Death And let these Points be determined either Way there will remain a Necessity to make a 3. question Viz. Whether the Plts. can join in this Action.
The Case as to the first Point is briefly this A man devises Slaves to his Children and Wills that his Wife should have the Work of them till his Children come of age The Children die before they come of age The Question is whether the Wife's Interest determines by their Death or Whether she shall keep the Slaves till the Time the Children would have been 21. if they had lived
It will be granted I presume that this Devise to the Wife must be taken redendo singula singulis viz. that she is to have the Work of the Slaves till the Children respectively come of Age And that each Child as it comes of Age is intitled to the Slaves given to it Cro. Ja. 259. Aylor & Chep. And it will be further granted I believe that in Construction this [69] Devise must be taken as if the Limitation was to the Wife first till the Children come of Age and afterwards to them Indeed otherwise the Devise to the Wife cannot be supported.
Now in Devises of this sort there is a very great Difference where they are made for Paiment of Debts to maintain Children or upon any other Trust and where they are merely for the Benefit of the Devisee For if a Man devised Lands to his Exec- utors till his Son comes of Age for Payment of his Debts or Performance of his Will and then to his Son There tho' the Son die before he come of Age the Interest of the Executors does not determine but they shall hold the Land till such Time as he would have been of Age if he had lived Boraston's Case
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BARRADALL'S REPORTS
3 Co. 19. Di. 210. a. Cro. Eliz. 252. 1 Ch. Ca. 113. But if a Man devises Land to his Wife till his Son comes of Age and then to the Son in Fee And the Devise to the Wife is not expressed to be for Performance of his Will Education of his Children or for any other particular Purpose but is purely for her own Benefit In that Case if the Son die before 21. the Wife's Interest is determined and the Land shall go to the Heir of the Son presently Hill. 1713. between Mansfield and Dugard decreed Chr. Ca. Abr. 195. 4. The Reason of the Difference in these 2. Cases is plain In Strictness of Law the Estate determines in both Cases For if a Man makes a Lease or grants Land to another till his Son comes of Age the Lease or Grant is subject to the Contingency of the Son's living till that time If he dies before the Lease or Grant determines Boraston's Case 3 Co. 19. b. Agreed per totam curiam 6 Co. 35. b. Plo. 273. And this of Necessity for Grants being taken strictly according to the Words, Unless the Estate was to determine by the Death of the Son It must continue for- ever for the Son will never be of Age Now the great Difference between a Devise and a Grant is this that in a Devise a more liberal Construction is allowed And it is not so much the Form of Words as the Intention of the Testator that governs the Con- struction But yet where there is no apparent Intention to the Contrary a Devise as well as a Grant must be construed according to the Legal Sense and Operation of the Words 1 Sal. 238. Aumble & Jones And in such a Case no greater Interest will pass by a Devise than would pass by the like Words in a Grant The Resolution in Boraston's Case (supa) is founded upon the In- tention of the Testator collected from the Nature and Manner of the Devise The Case was " A Devise to Executors, till H. B. should accomplish his full age of 21 years and the mean Profits to be employed by the Executors towards Performance of the Will " It was say'd it should be presumed that the Testator had computed that the Profits of his Estate by the Time his Son would be of Age would pay his Debts and therefore tho' the Son died before The Executors should hold the Land till such Time as he would have been of Age because otherwise the Testator's Intention in providing for the Payment of his Debts must be frustrated his Debts unpaid and his Will unperformed which are certainly very strong and cogent Reasons to induce such a Construction of the Will And so where the Devise is for any other particular Purpose as [70] the maintainance of Children
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VIRGINIA COLONIAL DECISIONS
or the like it may be reasonable to make such a Construction But where the Devise is general no Trust to be discharged but purely for the Benefit of the Devisee There is no equitable Ground or Motive to induce a more ample and liberal Con- struction than according to the legal Import and Operation of the Words Nor any Intention of the Testator appearing to carry the Devise further than the Words in their legal Sense will carry it And this I take to be the Reason in Mansfied & Dugard's Case (Supra) And upon which Distinction Boraston's Case and that are reconciled
That Case was thus " A Man devised Lands to his Wife till his Son should attain his Age of 21. and then to his Son and his Heirs The Son died at 13. and tho' the Wife was Ex'x yet it not being devised for Paiment of Debts nor any Cred'rs or Want of Assets appearing the Lord Chancellor (Harcourt) held that the Wife's Estate determined by the Death of the Son and upon a Rehearing continued of the same Opinion."
I will beg Leave to read Boraston's Case and This Now the Devise before us is exactly the same as this last only here the Slaves are devised first to the Children and then to the Wife But in Construction as I have already observed the Devise to the Wife must be taken first The Devise in this Case is generally to the Wife No Debts to be paid or any other Trust discharged but meerly for her Benefit And she is also made Executrix No two Cases can be more parallel in all their Circumstances and I hope my Lord Chancellor's Opinion will be taken for good Law especially when the Reason of the Difference between a Devise of this sort and a Devise for Paiment of Debts (as Bo- raston's Case and the other above cited are) is so clearly ac- counted for.
I'shall now proceed to consider the 2. Point Whether the De- vise of a Negro Child in the Mother's Belly be good tho' the Child is not born till after the Testator's Death.
The Objection I suppose will be that the Thing given was not in esse in Reum natura at the Time of the Devise And so being no more than a Possibility is not devisable
I shall agree that Possibilities which are remote are not de- visable but I take a Difference between a near and a remote Possibility (Jacob's Dictionary verbo Possibility) It was never yet questioned but that the Profits of Land might be devised for a Time And in this very Will the Work i.e. the Profits of
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B75
BARRADALL'S REPORTS
the Work of the Slaves are devised to the Wife for a Time Now the Profits are not in esse they are but a Possibility So the Profits that shall be made of a certain Commerce may be devised and I can see no Difference between Devises of this Sort and the Devise of a negro Child that shall be born especially when the Child is actually [71] in ventre sa mere for then it has a Sort of Existence anciently it was Murder to procure the De- struction of such Fœtus and the Law takes notice of a Child in ventre sa mere for a Devise to such is good and tho' it be but a Possibility it must be allowed to be a very near Possibility and must happen in a short Time For my part I can see no good Reason Why such a Devise should not be good It clashes with no Rule of Law that I know of nor is attended with any Inconvenience Why then should not the Testator's will be performed But I would not be understood as if I contended for carrying Devises of this Sort any further than where the Child is actually in the Mother's Belly It would be very in- covenient to allow a Devise of the 2. 3. or 4. Child that shall be born for Reasons that are very obvious. Tho' even such a Devise as that is allowed by the Civil Law for a Man may devise Quidquid illa ancilla perperisset 2 Dom. 159. S. 18. And it is clear from the same Author that the Civil Law admits of Devises of Things that are not in esse as the Fruits of a Farm the Profits of a Commerce and the like Now it may be worth considering that in England Legacies are properly recoverable in the Spiritual Court where the Civil Law is the Rule of Decision Tho' the Chancery for many years has exercised a concurrent Jurisdic- tion with them But then the Chancery has some Regard to the Determinations of the Civil Law in Matters concerning Legacies as that noted Distinction between a Legacy given to one at the age of 21. and where Legacy is made paiable at 21. which is allowed to have a very slender Foundation in Reason but because the Distinction is kept up in the Civil Law the Chancery observes it too that the Subject may have the Same Measure of Justice in which Court soever he sues. Ch. Ca. Abr. 295. 2. in Notis.
And I humbly hope that this Court will pay the same Regard to the Decisions of the Civil Law in Matters concerning Legacies at least so far as it is not inconsistent with the Spirit of our Laws nor attended with any Inconvenience And then it is mighty clear that the Devise of a Child in Ventre sa mere is good But here as I sayed it will be necessary to stop and not to suffer
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VIRGINIA COLONIAL DECISIONS
Devises of this sort to be carried any further because of the In- convenience that will follow
I shall now speak to the 3. Point Whether the Plts. can join in this Action for this must of Necessity be made a Question let the merits be determined either way because the Plts. have several and distinct Rights If the Merits are determined ag't the Deft. Then the Plts. Giles and his Wife have a Right to the Slaves in Question and the Plt. Mallicote has no Pretence of Right But if the Merits are with the Deft. Then the Plts. Giles and his Wife have no Right but the Plt. Mallicote does pretend some Right in that Case.
Upon the very State of the Question the absurdity appears of joining the Plts. in this Action for they cannot have both a Right to recover but if one has a Right the other has not
This is really a new kind of [72] Policy and the first Time I believe it was ever pratised It is having two Strings to the Bow If we can't recover by one Title we will by the other But I doubt the Consequence will be that they will recover by neither 1.
There is no Instance in the Law that I know of where two persons having distinct and several Interests can join in an Action But it is a com'on Exception in Arrest of Judgment where two join to object that their Interests are several as Di. 320. a. Stil 203. 2 Lev. 24. 3 Lev. 362. But if there was no Authority the Reason of the Thing speaks plain enough If Judgment be given for the Plts. it must be that the Plts. recover But will the Court give such a Judgment when one of the Plts. has no Right to maintain the Action Who shall have the Damages in this Case not he I hope that has no Right to recover them Yet if any Judgment is given for the Plts. they will both have an equal Right to the Damages Besides who can tell for whom the Jury intended these Damages Perhaps they might be intended for the Person who has no Right to maintain the Action And is there any Reason then that the Deft. should pay. The Damages here were certainly designed for Giles and his Wife but if they have no Right to maintain the Action Ought they to have any Damages I need say no more in so plain a Point especially as it is no new Objection in this Court Even in the Case of an Ejectment where one of the Lessors had no Title, Upon such an Objection the Court would give no Judgment It has been twice so adjudged as I have been told in the Cases
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BARRADALL'S REPORTS
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Meachen & others ag't Burwell and Dewberry & Others ag't Smith.
But if the Plts. Giles and his Wife have no Right as I hope it is clear they have not the Plt. Mallicote has really no Right at all Or if she has it is not such a Right as will maintain an Action of Detinue The Title she sets up is under the Remainder limited by the Testator's Will to the surviving Children In case of the Death of either without Heir of their Body Now this Rem'r I conceive is void being limited upon too remote a Contingency viz. a Dying without Issue which may not happen in 1000 years And no limitation of a Chattel can be upon a Contingency unless the Contingency is to happen within the Compas of a Life or Lives in Being or within a reasonable number of years as 20. or 30. 1 Sal. 229. But this Point was settled in the Case of Slaughter & Whitlock argued last Court (posted) where Slaves were devised to one and if he died without Issue Rem'r over It was adjudged the Rem'r over was void and the absolute Property vested in the first Devisee so that the Deft. as Heir at Law to his Brother is solely intitled to the Slaves in Question.
Or admitting this Plt. has a Right it is no more than as Tenant in com'on with her other Brothers and Sisters [73] The Rem'r is limited to be equally divided between the Survivors Now surely no Lawyer will say that one Tenant in Com'on of a Chattel can maintain an Action of Detinue ag't the other Tenant in Com'on where there are only two much less where there are more than two as in this Case Every one of them has the same Right that the other has and by the same Rule that the Plt. Mallicote can maintain this Action ag't the Deft. if she recovers another of the surviving brothers or Sisters may recover of her and the Deft, again may recover of that Brother or Sister or even of the Plt. herself, and so there would be no end to suits and Controversies. This sufficiently shews the Reason of the Law why one Tenant in com'on shall not have an Action at Law ag't the other 1 Inst. 200. a. The Remedy must be in Equity Indeed that Remedy is pointed out by the Act of 1727. c. 11. S. 18.
This Case was compromised and so no Judgment given.
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B78
VIRGINIA COLONIAL DECISIONS OCTOBER COURT MDCCXXXVIII.
Faldo for SEYMOUR POWELL and ANN HIS WIFE ag't THURMER In Ejectment.
Argol Ransha seised of 300 acres of Land died intestate leav- ing two Daughters Ann and Sarah to whom the same descended Ann married George Jackson and had Issue by him Ransha George Sarah and Ann Ransha Jackson being seised of a Moiety of the said 300 Acres by Descent from his Mother devised the same by his Will to Rob. Thurmer who had married his sister Sarah for their lives Rem'r in Fee to their Son George Thurmer and died without Issue which Moiety is the Premes in Question Sarah Thurmer had no other Child but George before named And the said Robt. Thurmer Sarah his Wife and George their Son are all dead George leaving no Issue and dying in 1725. George Jackson survived George Thurmer and is dead without Issue but Robert Thurmer survived him Ann the other Daughter of Geo. and Ann Jackson is one of the Lessors and as Aunt and Heir at Law of Geo. Thurmer claims the Premises.
George Jackson the Son before the Death of George Thurmer viz. in 1723. by Deed in Cons. of £10. sells to Robt. Thurmer all the Right Title and Interest which he then had or should have at any Time thereafter to all the Land that formerly belonged to Argol Ransha The Deft. is Heir at Law to Robt. Thurmer and sets up a Title under this Deed So that
The Sole Question in this Case is whether this Deed from George Jackson made at a time when he had no Estate Right or Interest can operate at all to Convey the Right which after- wards accrued to him upon the Death of George Thurmer Whose Heir he was For if Nothing passes by this Deed the Title of the Lessors is clear both as Heir of George Thurmer and George Jackson.
[74] It is really admirable that any Lawyer will offer to argue so clear a Point and contend ag't a Maxim and Rule of Law viz. That a Possibility cannot be granted over or released 1 Inst. 214. a. Which is as well known and as settled a Point as that the eldest Son shall inherit In Westminster Hall I am " sure the Court would not suffer an Argument to be made.
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BARRADALL'S REPORTS
When this Deed was made Robt. and George Thurmer were both alive Robert had an Estate for Life and Geo. the Rem'r in Fee What Right or Interest then could George Jackson have It is true he was presumptive Heir to his Nephew and so had a Possibility of having the Land upon his dying without Issue But this Possibility could not be granted over or re- leased as I have sayed. There is a great Difference between a bare Possibility and a future Interest that will certainly happen one Time or other as a Reversion or Rem'r expectant upon the Determination of any particular Estate As in this Case after the Death of Geo. Thurmer George Jackson as Uncle and Heir to him had a Rem'r in Fee expectant upon the Death of Robert and Sara Thurmer and without doubt after George Thurmer's Death might have granted or released his Interest but having no more than a bare Possibility during Geo. Thurmer's Life he could not grant or release that but his Deed is absolutely void And if he himself had survived Robt. Thurmer the Tenant for Life he might have entered into the Land against his own Deed.
It must be owned there are Words sufficient in this Deed to carry a future Right if the same was grantable " All the Estate &c. that I shall have hereafter" Littleton in his chapter of Releases Sect. 466. takes Notice that such Words are usually put in Releases but says they are no Effect because no Right passes but that which the Releasor hath at the Time of the Release made This he illustrates by putting the following Case If there be Father and Son and the Father is disseised and the Son living the Father releases to the Disseisor all the Right which he hath or may have Yet after the Father's Death he may enter upon the Disseisor ag't his own Deed for nothing passed by it All the Right when he made the Deed being in His Father I suppose there is the same Reason between any other Ancestor and Heir as between Father and Son And then thir Case is exactly Ours except as to the Disseisin George Thurmes and George Jackson were Ancestor and Heir George Jackson releases or grants it is the same Thing in the Life of George Thurmer This Deed I say is Void and nothing passed by it because all the Right at the Time [75] of the Deed was in George Thurmer I think the Cases are exactly parrallel.
There are besides an infinite number of Cases in the Books where it has been adjudged that a Possibility cannot be granted
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VIRGINIA COLONIAL DECISIONS
over assigned or released 4 Rep. 66. b. In Fullwood's Case 10. Rep. 47. 48. Lampet's Case 3 Lev. 427. Bishop & Fountain 1 Inst. 265. b. But it is mispending Time to say more in so clear a Point I shall therefore only just observe the Reason and Policy of the Law in not admitting a Possibility to be trans- ferred and it is upon the same Ground that a Thing in Action shall not viz. for avoiding of Maintainance Suppression of Right and Stirring up of Suits 1 Inst. 214. a. which are certainly excel- lent Reasons and shew the Wisdom and Justice of the Law in discountenancing and prohibiting every Thing that may have a Tendency to such Mischiefs
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