1817.

of children, can have no effect on his interest; and, con- DECEMBER, sequently, these clauses can not, in that respect, affect the construction of the preceding general clause.

Colemans

V.

The case of Jones v. Morgan (Fearne 330,) so much reHolladay lied on, was the case of a devise limiting over a rever- and others. sion expectant on a settlement, in tail male, on the issue male of the testator by his then wife. She was alive, and contemplated as surviving the testator, since she was made a Guardian of his children and an Executor of his Will. The question arose on these words in the Will;"and forasmuch as it is my Will, intent and meaning "that, in case my said two sons now living, or any other "son or sons of mine lawfully begotten, hereafter to be "born, should die without issue male of their bodies, &c. that then all and singular my messuages, lands, &c. "in &c." (being the same lands settled,) "shall be de"vised, settled, &c.;" going on to make the limitation over; and the question was, whether the testator meant sons by any future wife; which intention, unless an estate tail could be raised to them by implication, would defeat the limitation over, there being no particular estate to support such future devise. It was determined that sons by a future marriage were not intended; and, if they had been intended, no estate tail could be raised to them, and so the limitation would have been defeated. This was well determined; first, because such construction of a Will ought to be made, if possible, that every clause and limitation shall have effect; and hence it becomes necessary that general words, which otherwise would defeat the whole intention of the Will, must have bounds put to them: secondly, it was not the object of the testator to devise to his sons, and that by implication, an estate in the lands in tail male, which they already had by the settlement; but the object was merely to limit over the reversion expectant in the testator, if the sons by that marriage should die without issue male; the idea therefore of an implied devise to the sons either of that or any other marriage; was very properly rejected, from the manifest object of the Will itself, and for this farther reason, that the testator clearly appeared not to contemplate a

DECEMBER, future marriage, but the event of his then wife surviving

1817.

Colemans

V.

him.

I do not see how the testator, in the case before us, if he had foreseen the precise events that have taken place, Holladay and others, and had intended all the children to take, could well have provided therefor by more apt words than he has used; and, when the justice and reasonableness of the case is with this exposition, I must be excused for not losing sight of those beacons, when, in my judgment, no rule of law or of sound interpretation interposes.

As to the rights of Lewis Littlepage, I understand the parties on both sides to admit that, according to his Will, there will be little difference between them, be the decision either way. As, however, that Will is not before us, nor do I know who the parties claiming under it are, I will merely state my present impressions, which are that, (as I understand he died before his mother without issue,) the legacy never vested in him, and that he had nothing to bequeath. I am therefore for affirming the decree, but without prejudice to any claim, which may hereafter be asserted, by parties not now before the Court, under the Will of Lewis Littlepage.

Judge CABELL was of the same opinion.

Judge BROOKE.-Whether the Will in this case is susceptible of the meaning attributed to it by the Chancellor will depend on a correct construction of the two clauses set out in the Bill, in connection with the first clause, in which the testator declares his intention to dispose of his whole estate. It would not be contended, I presume, that, by the devises to his daughter Betty and her children, considered exclusively of any other part of the Will, the testator intended to exclude any of her children living at her death. The words are, "I lend "to my daughter Betty Littlepage one negro girl, out of "those I last bought, during her natural life; and, im"mediately after her death, the said negro and her issue, "if any, I give to be equally divided among my said "daughter's children then living, and their legal repre"sensatives." This last expression certainly comprehends all the children of Betty, in exclusion of none

1817.

V.

living at the time of her death. The words import, as DECEMBER, strongly as possible, the intention of the testator to provide for his daughter Betty and all her children living at Colemans her death. Nor are they to be affected by any criticism Holladay on the expression, "my daughter Betty LITTLEPAGE." and others. It was the name she then bore. Names are only the indicia of persons; and the inference attempted to be drawn from the grammatical relation of the words, "immediately after her death," to the words, "my daughter Betty Littlepage," whereby to restrict the devise to the children of Betty Littlepage, eo nomine, would be too nice to be permitted to control the general meaning of the sentence. Nor would it be strictly grammatical. The relative "her" is a personal pronoun:—it is identical, and not nominal in it's meaning, and refers to the person Betty Littlepage, by whatever name she might afterwards be called. It was his daughter Betty and her children, and their issue, then, that the testator meant to provide for.

This construction, however, is supposed to be overthrown by the devise over, to James Littlepage the husband, in the following words; but, in case they" (meaning the before named devisees,) "should all die "without issue, living in the life time of my son-in-law "James Littlepage, then the said slave and her increase "to go to the said James Littlepage. The argument is, that the testator certainly intended to include the children of James Littlepage only, in the previous member of the clause, because it would be absurd to suppose that he meant to postpone the devise to him, until the death of Betty his wife, and of her children by a second marriage. The answer I think is, that no such intention is insisted on. The event on which James Littlepage was to take, is plainly declared in the clause to be on the death of Betty, and all her children, and their issue, in his life time; an event very possible, and not altogether improbable. If his wife Betty had died in his life time, without children, or their issue, living, his contingent interest would immediately have vested. But the event,

V.

DECEMBER, on which the property was to pass to the children and 1817. their issue, was a very distinct one:-it was on the death Colemans of their mother Betty. Nor is there any conflict between their interest, under this exposition of the Will, and the Holladay and others. interest of James Littlepage the husband. On the contrary, if the construction contended for is adopted, some of the children of Betty living at her death must be excluded. This would violate the obvious meaning of the general words in the first member of the clause, without affording the slightest aid to effectuate the intention of the testator declared in the devise over to James Littlepage, and impair the general rule, that none of the words in the Will shall be rejected, unless to effectuate the obvious intention of the testator declared in some other part of the Will. This exposition I think equally applies to the other clause, in which one eighth part of the property previously purchased is devised to Betty and her children. Though the expression, “but, in case they "shall all die without issue," in the clause before referred to, is omitted, and the expression," and, in case "any of them are dead, to their legal representatives," substituted; it is not believed the testator intended a different disposition of the property. He intended, in both cases, to provide for the children of Betty, and their issue, living at her death:-he could not therefore intend to provide for those who might claim in the character of legal representative of any of the children who may have died without issue in her lifetime. There is nothing in the Will from which to infer, that the testator intended to provide for the children of the marriage, of James Littlepage with his daughter Betty; or that he was under any obligation so to provide. If there was, a different construction perhaps ought to prevail. On the contrary, it appears by the Will, that he had made a similar provision for all his daughters; with the exception that there is no limitation over to the husband of any of them, (except to the husband of Betty,) either of the property previously given to them, or of that bequeathed to them by The Will: and, the more forcibly to evince his intention

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to make their parts of his estate equal, he gives to his DECEMBER, daughters Betty and Dorothea forty pounds more, in the division of the personal estate, than to the others; in Colemans "order (as he says,) to make each of my daughters' parts Holladay "of my estate equal:"-by which provision, he certain- and others. ly intended that the portion of his daughter Betty and her children, in exclusion of none of them living at her death, should be as ample, both in interest and amount, as that of his other daughters and their children. The circumstance, that the parts of the other daughters would belong to their husbands by virtue of their marital rights, does not affect this view of the Will. It only serves to place it in a stronger light; because it shews that the testator, though willing to confide the provision for his other daughters and their offspring, to their husbands, was determined to take care of his daughter Betty and her offspring himself; from which it is not possible to infer a preference of the children of James Litflepage to those of any other marriage. A different exposition would also be in hostility to the first clause in the Will, in which the testator declares his intention to dispose of his whole estate; which intention he carries into effect by apportioning his property among his wife and all his children:-because, if the children of the second marriage of his daughter Betty are to be excluded, (as is contended,) the portion devised to her, in the event that all the children by the first marriage had died in her life time, would have returned to the Executor, as undisposed of by the testator; a result in manifest opposition to the intention of the testator to make the portions of all his daughters, equal in interest and amount; and, also, to his intention, declared in the first clause, to dispose of his whole estate; and in direct violation of his intention to provide for his daughter Betty and her children, and their issue, living at her death.

The case of Coleman v. Seymore, 1 Vezey sen'r. 209, relied on by the Counsel for the appellants, has no direct application to the case now before the Court. The question in the case cited was, whether money legacies vested in the younger children then born, were subject to variation,