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1816.

Carter's Exe

cutors

V.

Wife.

NOVEMBER, are proved, or can be supposed, to have been ignorant; and the transaction is proved to have been of general notoriety. As to the Will of Robert W. Carter in relation to this debt, it was not made in favour of Cooper, or any of his assignees. Cutting and It added no new sanction, and gave no new character to this claim. It imposed no new obligation of payment on George Carter, as a condition of the devise to him, which relates to it. That devise was made in favour of the Testator himself and his estate, by substituting a particular fund in lieu of his previous liability. It could not bind Cooper to waive his prior ground of claim, and rely on the substituted fund. It was made by Robert W. Carter, as a surety for Cooper's debt, and probably under an idea that he was bound to pay it. It results, from these considerations, that the Executor of George Carter ought not to have paid this debt; and, whatever his motives may have been for the haste, with which he proceeded to compound and discharge the same, they cannot vary in his favour the general principles, by which this debt stands reprobated as aforesaid.

The Court approves of the principles, embraced by the sixth instruction of the Chancellor in the proceedings contained; namely," that the money, directed to be invested in "Government Securities, should be accounted for, as if in"vested, after a reasonable time for that purpose, &c.;” with this exception, that the Executors should not be charged with interest thereon during such reasonable time; it being presumed that, during such time, the Executors would not use it for their own purposes, but would keep it by them for the purposes of making such investments. As to the claim of interest upon the dividends of such investments, supposing them made, the Court is of opinion that, although such dividends were intended for the support of the Testator's family; and although, if such investments had been made, the dividends might have probably been received without difficulty, on application at the proper offices; yet, as they were not in fact received, no interest should be allowed on such dividends. The farthest the Court has gone is to allow interest upon rents, hires and interest, when actually received.

The allowance of such interest, in this case, would open a wide field, in relation to this subject; and the principle might

1816.

cutors V.

Wife.

be equally relied on in all other cases, in which it might be NOVEMBER, presumed that the interest, though not in fact received, might have been obtained on application. As to what was said of its Carter's Exebeing unknown to the Executors what was the amount of the debts of George Carter; and that, therefore, they could not Cutting and safely make the investments at an early period of their Executorship, the Court remarks; 1st, that those debts, though perhaps large, were probably not numerous; and, 2dly, and chiefly, that if such investments had been made by the Executors in their own names, as such, (as they ought) the stock could at any time have been converted into money, and applied to the payment of the debts of their Testator.

With respect to Beale's bond, and all the other items of the private accounts of Landon Carter, and of the estate of Robert W. Carter, with that of George Carter, other than those relating to the sums paid to Cooper as aforesaid, the Court passes no opinion upon them, as those accounts remain to be taken by a Commissioner.

As to the Commissions charged in this case, the Court is of opinion that, although, under peculiar circumstances, an allowance may be made to Executors, in addition to the Com. missions given to Attornies for the collections of debts confided to them, such additional Commissions ought not, in general, to be given, where the debtors reside in, or near the neighbourhood of the Executors, who, consequently, might easily collect the monies themselves.

Therefore it is decreed and ordered, that so much of the Decree of the said Court of Chancery, as conflicts with the principles now stated, be reversed and annulled; and that the residue thereof be affirmed; and also that the Appellants out of the estates of their Testators in their hands to be administered, if so much thereof they have, but if not, then out of their own estates, pay to the Appellees, being the parties substantially prevailing, their costs by them about their defence in this behalf expended. And it is ordered that the cause be remanded to the Court of Chancery, to be there finally proceeded in, pursuant to the principles of this Decree.

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Decided, Nov. 20th, 1816.

1. A Testator

gave to his son

Warners against Mason and Wife.

WILLIAM WARNER the elder, late of the County of AccoW. a tract of mack, made his last Will, dated June 20th, 1803, and devised land," during to his son William Warner a tract of land, by the following his natural life, and then to his words: "I give to my son William Warner my sea side planheirs lawfully begotten of his "tation adjoining the lands of Thomas Evans, Esq. during his body, that is, "natural life, and then to his heirs lawfully begotten of his of his death, or" body, that is, born at the time of his death, or nine Calendar months thereaf- “months thereafter; and, for want of such heirs, then to my ter; and, for" son Isaac's two sons Jacob and George; one of them to set a heirs, then to his price on the whole of it, and give or receive one half of that son I.'s two" sum from the other: I also give to my son William all the

born at the time

nine Calendar

want of such

sons, Jacob and

66

George; one of" timber and scantling which he has got or sawed for the purthem to set a 66 price on the pose of building a house on the plantation I have given

whole of it, and "him."

give or receive

one half of that

other." This

The Testator died, and William Warner the son entered, sum from the and died seized, without having had any issue, and having dewas a good limi- vised the land to his sister, who became the wife of Charles tation, by way of contingent remainder, to Jacob and George.

Mason.

Jacob and George, the sons of Isaac Warner, brought an Ejectment against Mason and wife, in the County Court of Accomack, to recover the said sea side plantation; on the trial of which action, a case was agreed by the counsel on both sides, stating the facts aforesaid.

On this case, the County Court gave Judgment for the plaintiffs. The Superior Court of Law reversed that decision; and the plaintiffs appealed to this Court.

Nicholas for the Appellants. The question is whether the limitation over to Jacob and George was good, or not.

I contend that William Warner, the first devisee, took only an estate for life. It is an express estate for life in terms, and then to his heirs lawfully begotten. I do not say that an express devise for life will in all cases prevent the rule in Shelly's (a) 1 Co. Rep.89. case (a) from prevailing: the general rule is, that the first devisee will take an estate in tail, which by the Act of Assembly becomes a fee simple; yet all the Judges agree that this rule is against the Testator's intention. I admit that the rules of law

1816.

Warners

v.

Mason and

2 Bl. Com. 241.

are not, in every case, to be controlled by the intention of the NOVEMBER, Testator; but, where any expressions are found in the Will, shewing the devise to the second devisee to be to him, as a purchaser, the Court will lay hold of those expressions in support of the intention. (a) Shelly's case only shews, that where Wife. the limitation over is to the heirs of the body, generally, it vests (a) Coole's Anaan estate of inheritance in the first devisee; that the word lysis of Fearne, p. 38. Fearne, heirs, in that case, is a word of limitation, not of purchase. (4th Ed.) 76; But neither that case, nor any other, was ever intended to control the intention, obviously expressed, that the second devisee should take by purchase, and not by descent. Here the words "heirs lawfully begotten" were plainly intended, not as words of limitation, but as designatio persona; which is evident from the Testator's describing those heirs, as persons "born at the time of his death, or nine Calendar months thereafter."

66

The word "heirs," in this case, is therefore a word of purchase, and not of limitation.(b) And that limitation is not (b) Bamfield v.

too remote.

Popham, P.
Wms. 59; Bur-

chett v. Dur-
dant, 2 Vent.

V.

Rucker, 2 Call

Wickham contra. A person, not conversant with rules of 311; Brewer & law, would suppose that this case ought to be determined Wife V. Opie Call 212; Higagainst me. The intention of the Testator certainly was to genbotham give an estate for life to William; but he intended also to give 313. something to William's heirs; and they can take such estate only, as the law permits. His general intention must therefore control his particular intention.

I contend that William Warner took an estate tail. His children (should he have any) could not claim by way of Ex

ecutory devise, but by way of contingent remainder: (c) "for (c) 2 Bl. Com. "where a contingency is limited to depend on an estate of 173. "freehold, which is capable of supporting a remainder, it shall "never be construed to be an Executory devise, but a contin"gent remainder only, and not otherwise."(d) If therefore the (d) 2 Saunders, contingency was too remote to permit the remainder to take 388. Purefoy v. Rogers.note (9.) effect, the children of William Warner could only take by con- 3 Term Rep. struing the devise to him as an estate tail.

All the subsequent cases either conform, or profess to conform to the rule in Shelly's case, according to which the heirs of William Warner could not take by purchase, but by descent;

763.

Morgan.

Doe v.

1816.

Warners

V.

Mason and

Wife.

NOVEMBER, and this is considered a principle of law never to be departed from. (a) This rule is not at all founded on the Statute de donis, but applies to estates in fee as well as tail; to Wills as well as Deeds. In the case before us, the devise to William Warner is not merely an implied, but an express estate tail; for (a) 5 Bac. 731; the intention of the Testator must be consistent with the rules Harg. Law of law, and he cannot create new modes of descent.(b) If the Blackstone's Ar- heirs take by descent, the ancestor must have an estate of ingument in Per rin Blake, heritance; as is also stated in the case of Jones v. Morgan,(c) Ibid. 551. Har in which the rule is laid down by Lord THURLOW with great grave's own op.

Tracts, 489,

Robinson v. Ro- accuracy and clearness.

binson, 1 Burr. 38; 6 Cruise 289.

1125.

Suppose William Warner had died, leaving a grandson living; would he not have taken? Yet he could not, according (b) Coulson v. Coulson, 2 Str. to the argument of Mr. Nicholas: for he reads this Will as if the word used in it were "sons" instead of "heirs ;" excluding all grandsons; which could not have been the intention of the Testator. The law term "heirs," used by himself, includes grandsons, and ought always to be construed as meaning "heirs," unless a contrary meaning be necessary.

(c) 1 Bro. Ch. cases 219.

(d) Lowe v. Davies,2 Ld. Raym. 1561; Doe v.

1100.

I admit there are exceptions to the rule in Shelly's case;(d) as where the limitation is to "sons" or "children ;"(e) or where Laming 2 Burr. words of limitation are superadded to the word “heir,” in the (e) 6 Cruise, singular number.(ƒ) So if the devise be to A. for life, remainder to his heirs "now living," this confines it to the children now living, and excludes the rule in Shelly's case: but wherever" all his heirs" are to take at the time of his death, there the rule applies.

344.

(f) Ibid. 353.

But if William Warner took an estate for life only, the de(g) Doe v. Coop. vise over by way of contingent remainder is too remote.(g) er, 1 East 229, The case of Sydnor v. Sydnors, 2 Munf. 263, was as plain a 6 Cruise, 295;

Hill v. Burrow, case of intention, as ever came before a Court; yet there it was 3 Call 342 decided that the limitation was too remote for there is no Tate v. Tally,

Ibid. 354 El- such thing, as an Executory devise taking effect after an dridge v. Fisher, 1H, and M. 559 estate tail: the Court considering the estate of the first devisee

to be an estate tail, it was therefore turned into a pure and absolute fee by virtue of the Act of Assembly; according to Carter v. Tyler, 1 Call. 187.

In Smith and Wife v. Chapman, 1 H. and M. 240, the distinction taken was that the devise over was to "children.” In Brewer v. Opie, 1 Call 212, the word "or" being considered

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