*Defarges v. Lipscomb. Thursday, November 21st. 1811. cery, for an injunction to stay proceedings | 451 on so much of the judgment as exceeded one hundred dollars, with interest there- Appellate Practice--Error Prejudicial to Appellee.*upon, and the costs at law; alleging in their bill that they were not informed that the claim was for more than that sum until the judgment had been obtained. The county court granted the injunction, and, afterwards, made it perpetual; notwithstanding the circumstances above mentioned were averred in the answer, and proved by the affidavit of the sheriff, which was read (by consent of parties) as a deposition. Upon an appeal to the superior court of chancery, holden at Williamsburg, this decree being affirmed, an appeal was taken to this court. When a decree, by which an injunction is made perpetual in part, is considered erroneous. (to the injury of the appellee,) in not having made it perpetual in toto; the court of appeals will affirm so much as allows him his costs, in the court of chancery; and, reversing the residue, and making such decree as that court should have made. will also allow him his costs in this court. (1) Upon an appeal from a decree of the superior court of chancery for the district of Williamsburg, by which an injunction, to stay proceedings on a judgment, was in part perpetuated. The appeal was taken by the defendant in equity, who was plaintiff at law. The record being submitted (without arWickham, for the appellant. The ap-gument) by Wirt, for the appellant, and pellees are not entitled to relief in equity, Wickham, for the appellee, the following having neglected to make defence at law. opinion of this court was pronounced by They might have moved the court to correct JUDGE ROANE. the error committed in the clerk's office; "The court is of opinion that the said or they might have been relieved upon an decree is erroneous in not perpetuating the appeal or writ of error; for, the judgment injunction for the whole sum recovered by having been entered by default, the capias the judgment enjoined; it appearing to the and the bail bond were part of the rec- court that the appellee was entitled to a ord. (a) Besides, it does not appear that the credit for forty-five bushels of wheat, at plaintiff, or his attorney, knew of the er- five shillings per bushel, with interest ror. It is in evidence that the defendant thereon from the year 1787, which sum, and the bail knew of it. If the objection added to that allowed him by the decree, had been made, the plaintiff might have would more than have extinguished the had the mistake corrected, and the defend- judgment. Therefore it is decreed and orant held to other bail; or he might have dered, that so much of the said decree as made the clerk responsible in the first in- gives to the appellee his costs in the supestance. The appellees were guilty of bad rior court of chancery be affirmed; that the faith in not informing the plaintiff or his residue thereof be reversed and annulled; attorney. At any rate, they were guilty and that the appellant pay to the appellee, of gross neglect, and ought to have been as the party substantially prevailing, his left to their remedy at law. costs by him about his defence in this behalf expended. And this court proceeding 450 chancery ought to have pronounced in lieu of that part which is reversed, it is further decreed and ordered, that the injunction aforesaid be perpetuated as to the whole sum recovered by the judgment enjoined as aforesaid." Wirt, contra. There was no neglect on the part of the bail. They were will- to make such decree as the said court of ing to pay the amount of their *bond, and could not anticipate a judgment against them for more. Morrison was insolvent. The bail looked forward to a certain responsibility, to the extent of their bond. They thought it unnecessary, therefore, to make defence, supposing that no more was claimed of them. 452 If there was any fraud, the plaintiff was guilty of it, in stealing a judgment for two hundred pounds, on a writ for two hundred dollars. case. Wickham, in reply. The insolvency of Morrison does not appear in the record; but would make no difference in the The plaintiff was guilty of no fraud; for he knew nothing of the mistake; but there is direct evidence that the appellees knew of it before they signed the bond as bail. Thursday, November 21, (in the absence of the president,) JUDGE ROANE pronounced the opinion of the court, "that the remedy of the appellees (if it existed) might have been asserted in a court of law; and this court not being satisfied, if this were not the case, that a court of equity ought to afford them relief, against the effect of an engagement entered into with a full knowledge of all the circumstances, reverses the decrees of both courts, dissolves the injunction, and dismisses the bill." (a) Shelton v. Pollock, 1 H. & M. 422. *Temple's Executor v. Ellett's Executrix. Friday, November 22d. 1811. Evidence-Witness+-Legatee. It seems, that a specific legatee is not a competent witness to disprove the claim of a creditor against the estate of the testator. (2) In an action of assumpsit in King William county court, on behalf of Robert Temple, executor of Benjamin Temple, *Appellate Practice-Error Prejudicial to Appellee. See foot-note to Day v. Murdoch, 1 Munf. 460, where the cases citing the principal case are collected. (1) Note. See the General Rule, 1 Munf. 460.-Note in Original Edition. See monographic note on "Witnesses" appended to Claiborne v. Parrish, 2 Wash. 146. (2) Note. Quære whether there may not be some exceptions to this rule? In this case it was not proved that the residuary estate was sufficient to pay the debts of the testator; neither did it appear that the executor had assented to the legacy, and delivered it to the legatee. If these circumstances had been proved, would the witness have been incompetent? or would the possibility of his being ultimately liable to pay the debt (in case of a devastavit, insolvency of the executor, and his securities, and of all the residuary legatees) be an objection to his competency, or to his credibility only? See Baring v. Reeder, 1 H. & M. 154-169, and Peake on Ev. 144.-Note in Original Edition. 2 MUNF. MOOBERRY AND OTHERS v. MaryE. against Sarah Ellett, executrix of William Ellett, issue was joined on the plea of "non assumpsit by her testator;" and, at the trial of the cause, the defendant introduced as a witness, John P. Ellett, "one of the said testator's sons, to whom he by his last will had devised a legacy of a negro named Granville, and no other part of his counsel for the estate; whereupon the ment, dies pending the suit, judgment is to be This was an ejectment brought by the plaintiff moved the court to reject his tes-appellee against the appellants in the distimony, upon the ground of his being in-trict court holden at Fredericksburg. The terested in the cause; which the court parties agreed the following case, to have refused to do, and delivered an opinion that the effect of a special verdict. the said witness was competent; and, before the jury retired, three of the magistrates, who gave the said opinion, said, they gave that opinion because they supposed that the said William Ellett's residuary estate was fully sufficient to pay the debts owing from his estate;" to which opinion a bill of exceptions was tendered, &c. The jury found a verdict for the plaintiff, for only 51. 7s. 6d. damages; whereupon it was considered by the court that he be nonsuited;(a) which judgment being affirmed by the district court, he appealed to this court. 453 Friday, November 22, the appellee appeared by counsel, and the appellant, being solemnly called, came not. The court took the record without argument; and the *following opinion was pronounced: "There is error in this, that the court admitted the witness, mentioned in the bill of exceptions, to give evidence to the jury; he being, in the opinion of this court, an Both judgments, incompetent witness." therefore, were reversed; and the cause was remanded, for a new trial to be had in the county court; "in which the witness aforesaid is not to be admitted to give evidence to the jury." Mooberry and Others v. Marye. Argued March 14th, 15th, & 18th, and reargued April 11th, 12th, & 13th, 1811. 1. Devise*-No Words of Perpetuity-Effect of General Charge. A devise of lands, (before the 1st of January, 1787.) without words of perpetuity, will not be enlarged to a fee simple, on the ground of a general charge, arising from a direction, that all the testator's debts be first paid; especially, if other funds be appropriated for payment of the debts. Expressions.+— Where a will is systematically composed, and the meaning plain, the court will not, for the purpose of enlarging the estates of devisees, or creating limitations in their favour, transpose expressions occurring in other clauses, and obviously relating to other subjects. 2. Wills-Construction - Transposing We agree that James Marye, the father of the lessor of the plaintiff, was, on the 21st day of June, 1774, seised and possessed of the lands and premises in the declaration mentioned, and, being so seised, duly made and published his testament in writing; that, on the 3d day of October, 1780, he added a codicil thereto, and some time in that year, departed this life, so seised of the said lands, without altering or revoking either; that the testator left James Marye, the lessor of the plaintiff, his eldest son and heir at law, and six daughters; only three of whom, to wit, Lucy, Susanna and Sally, are named in the will; the other three being mentioned in the codicil as his three younger children; that the said Lucy, Susanna and Sally survived the testator; 454 that Lucy intermarried with James *Weir, and is now living; that Susanna departed this life, some time in the year 1782, under age, and without having been married; and that Sally, after having attained the age of 21 years, died, in 1786, unmarried and intestate. We agree that James Marye, the lessor of the plaintiff, is the brother of the whole blood, and heir at law, to his two sisters Susanna and Sally; that after the death of Sally, the said James Weir entered into the lands in the declaration mentioned, (they being the lands which were devised in the will to Sally,) and was thereof possessed; and being so possessed, leased a part thereof to Andrew Mooberry, one of the defendants, for a term not yet expired; that the testator did, two days before he made his will, execute to his daughters Lucy, Susanna and Sally, three separate deeds poll, for sundry negroes; which deeds were duly recorded. We agree the lease, entry and ouster in the declaration mentioned. And if upon the whole matter, &c. &c. The will, the codicil and deeds were agreed, and set out, in hæc verba. 3. Ejectment-Death of Lessor Pending Suit§-Judg. The first clause in the will (after the prement. Where the lessor of the plaintiff, in ejectamble which contained nothing to influence (a) See 1 Rev. Code. p. 90. c. 67. s. 37, 38. Devises-Estate Undefined-Direction to Devisee to the disposing clauses) directed all of the that testator's debts and funeral charges to be Pay Debt-Effect.-It has long been settled where a devisee, whose estate is undefined, is directed first paid. In the 2d clause he gave to his to pay the testator's debts, or legacies, or a specific sum in gross, he takes an estate in fee, on the son James Marye two tracts of land; and ground that, if he took an estate for life only he in case of his death before his arriving at might be damnified by the determination of his in the age of twenty-one years, then he gave terest before reimbursement of his expenditure. It is only in cases where the estate of the devisee is those tracts, in parcels, severally, to his doubtful or undefined by the terms of the will that daughters, Lucy, Susanna and Sally. In the rule can be invoked. Couch v. Eastham, 29 W. the 3d, he gave a tract of land, known by Va. 792, 3 S. E. Rep. 28, citing principal case. See further, monographic note on "Legacies and +Ejectment. See monographic note on "Ejectment" appended to Tapscott v. Cobbs, 11 Gratt. 172. $Same-Appeal-Abatement.-An appeal from a judgment in ejectment does not abate by the death Same-Proof of Possession of Land.-See, citing the name of Motts's, to his daughters, viz. Sally, took each a fee simple estate, (notthe lower plantation, to run a straight line withstanding the absence of words of perfrom the river to the back line, including petuity,) in their respective portions of the the mill, to Sally; the remainder to be tract called Motts's, with cross remainders, equally divided between Susanna and upon the contingency of either of them dyLucy, in a specified manner. ing unmarried; and that, upon the death of Sally unmarried, a fee-simple, in her part, accrued to her only surviving sister Lucy. No words of perpetuity were annexed to any of those devises. In the 4th clause, he gave to his son James sundry slaves, by | name, describing them as the same 455 which he had before given him by a deed of gift, or settlement, recorded in Spottsylvania court. In the 5th, 6th, & 7th clauses, he gave, in like manner, to his daughters Lucy, Susanna and Sally, certain slaves, before given to them by deeds recorded in the same court. The 8th clause was as follows:-"Item. In case of either of my daughters' death before they marry, that then, their parts to be equally divided among the surviving sisters. In case any of my negroes should be sold, it is my desire that it may not be those that I have given my son James, or any of my daughters, as by deed aforementioned given them." The 9th clause was:-"Item, I give also to my son James all the rest or remainder of my negroes, to him and his heirs; and in case of his death, then his part to be equally divided among his sisters." The 10th clause related to the collection of certain money due him, and its application of the payment of his debts. The 11th directed a negro woman to be sold for the same purpose. The 12th, 13th, & 14th provided for the care and guardianship of his children. The 15th was as follows:-"Item, in case any of my land should be sold, I desire that it may be the part of the tract whereon I live, which lies on the east side of the old mine road, which I rather should be sold than any of my negroes." The 16th appointed executors, and concluded the will. In the codicil, he revoked so much of the will as directed part of the land he lived on to be sold;"there being no necessity;" he gave to his daughter Sarah, her heirs, and assigns forever, three negroes by name; and to his son James, his heirs and assigns for ever, all the rest of his slaves, not theretofore given or devised to his daughters. He also directed that the money due by bond from Colonel William Grayson, and the money due from his brother Peter Marye, be equally divided among his three youngest children, or the survivor of them. 456 *The three deeds to the daughters were in the usual form of deeds of gift, conveying the slaves to them, their heirs and assigns for ever, with warranty. The lessor of the plaintiff having died after the agreement of the case, security for the costs was entered. (1) The court gave judgment for the plaintiff, and awarded to him a writ of possession; from which judgment the defendants appealed. Botts and Wirt, for the appellants. Williams and Wickham, for the appellees. On the part of the appellants, it was contended, 1. That the daughters Lucy, Susanna and (1) Note. See Kinney v. Beverley. 1 H. & M. 531; and Carter v. Washington, 2 H. & M. 31. 2. That if such fee-simple estate did not accrue to the surviving sister, a life estate did, so as to postpone the title of the heir at law until her death. 3. That, as the case agreed did not find either Stevenson or Slaughter to have ever been in possession of the premises; and as it finds that Mooberry was in possession of part only of the lands in the declaration mentioned, leaving Weir in possession of the balance, the judgment ought not to have been against Mooberry for the whole; and the two defendants, not in possession, should have judgment for them; or a venire de novo should be awarded. Clay v. White, 1 Munf. 162. The case was twice argued at great length, upon the probable intention of the testator to be collected from the 457 *will in question; and many authorities upon the construction of wills were discussed. The chief grounds relied upon, to prove that the daughters took a fee-simple, were, that the clause in the will, directing the debts of the testator to be first paid, created a general charge upon the lands; and that such charge was sufficient to make the several devisees take in fee; in support of which positions, the counsel cited 2 Vern. 708; Trott v. Vernon, 1 Eq. Cases Abr. 198; Beachcroft v. Beachcroft, 3 Term Rep. 358; Doe v. Richards, Willes, 140; Moone v. Heaseman, 1 Wm. Bl. Rep. 539; Frogmorton v. Holliday, S. C., 3 Burr. 1618. In answer to this, it was insisted that a general charge for payment of debts could not have the effect of converting the devises in a will into estates in fee; the only cases where charges made by the will, on lands devised, had that effect, being "where a particular devisee is directed to pay an annual rent charge, or a solid sum, out of the estate devised; in which cases it has been properly decided, that the devisee should take a fee; because he might be a loser unless the estate in his hands were, at all events, sufficient to enable him to bear those charges." Denn, Lessee of Moor, v. Mellor, 5 Term Rep. 562; Goodtitle v. Edmonds, 7 Term Rep. 640. To show that the daughters took cross remainders, the counsel for the appellant relied on the eighth clause, as applying to the lands as well as the slaves. But, on the other side, this was denied. The words "their parts," in that clause, must, according to grammatical construction, refer to the immediate antecedent, the slaves, and cannot be transposed, so as to affect the disposal of the lands, with which they have no connexion. Right, Lessee of Compton, v. Compton, 9 East. 267; Doe, Lessee of Child, v. Wright, 8 Term Rep. 64; Camfield v. Gilbert, 3 East, 516. It was obvious that the testator did not intend to give his daughters cross remainders 458 (or, more properly, executory devises) in immediately followed by a declaration that, the lands. in case of his death before he attains the *The rest of the argument is age of twenty-one years, the land is to be omitted; being sufficiently noticed divided among his sisters. The clauses (so far as relates to points decided by the giving certain slaves to his daughters are court,) in the following opinions of the followed by the declaration that, in case judges, pronounced on Friday, May 17th. of the death of any of them before marriJUDGE CABELL. James Marye hav-age, their parts are to be divided among ing, by the third clause of his will, devised the surviving sisters; and the clause givcertain lands to his three daughters, and ing the residue of the slaves to his son is by subsequent parts of his will, bequeathed immediately followed by a limitation over to them certain slaves, declares in the to his sisters in case of his death. In eighth clause, that in case of the death of every case, then, we find a limitation over either of his daughters before marriage, expressly and indisputably annexed to the "their parts" are to be equally divided devise, except in the case of the devise of among the surviving sisters. The impor- lands to the daughters. How can its abtant question, growing out of the facts sence in this case be accounted for? Upon agreed by the parties is, whether the term no other principle than that the testator "parts, "in the eighth clause, was intendea did not intend it should exist. What were by the testator to apply only to slaves, the his motives for placing the devise of lands subject of the immediately preceding to his daughters, on a ground so different clauses, or to the lands, which were the from that which prevailed with respect to subject of the third article. If the term, as his other property, is not necessary, and here used, be applicable to slaves only, might be difficult, for us to deterthen it is admitted that the appellants can 460 mine. *It is sufficient that such was have no title to the land in controversy. his will. It is contended, however, Whether it is to be so applied or not, de- that the term "parts," in the eighth pends on no rule of law, but on the inten- clause, is extensive enough to embrace and tion of the testator, as discoverable by the to control every thing that had been given principles of fair and reasonable interpre- to the daughters, both lands and slaves. tation. There can be no doubt but that the testator might have made it so. The question is has he intended to make it so? As used in the clause under consideration, it is a relative term; and, as such, must, according to the most obvious and reasonable construction, be confined to the distinct and particular subject the testator was then disposing of; unless extended to other matters by clear and express declarations. The testator had previously disposed of his lands, beginning with his son, and ending with his daughters. He had entered on a new and distinct subject, the apportionment of his slaves among his children, beginning as before with his son; and after having given such of them as he thought proper to his daughters, we find, immediately following, the clause in controversy I am of opinion that he intended slaves only. Much was said, in the argument, of the rude and inartificial structure of this will. It is certainly defective in the use and application of technical terms, and, sometimes, betrays a want of grammatical accuracy; but it is the offspring of a well organized mind that perceived its subject clearly, and that understood enough of language to make it subserve its most important end, to impart that perception to the minds of others. The method with which it proceeds is really remarkable, and affords a clew to the intention of the testator on the point under consideration. In some wills, the only method to be found is that which results from a wish to throw into one clause, or into one view, all the devises or bequests that relate to the that if any of his daughters should die same individual, without regard to before marriage, their part should be divided 459 the subject of those devises or be- among the surviving sisters. This mere quests. In this will, the intention of statement would seem to make it almost the testator, as to method, is confined to impossible not to believe that slaves only the subject of his devises. He first dis- were, at that moment, in the mind of the poses of his lands, and then of his slaves, testator. But if the previous expressions subjecting the dispositions in both cases to would have left it doubtful, the doubt must such limitations, and to such only, as his be removed by observing that all the subopinion of propriety, or his fancy, dictated. sequent parts of the same clause, and also It is no objection to the character of this the whole of the next, relate exclusively to will, for method, that the testator has in- slaves; and that there are no expressions troduced, almost at the close of it, a clause extending the term "parts" to other matdeclaring that part of his lands which he ters than those which the testator was then wished to be first subjected to the payment disposing of. The devise of lands to the of his debts. It is far separated from the daughters, therefore, is, in my opinion, disposing parts of the will, and is evidently uninfluenced by the limitation over, in the the effect of an afterthought. In a will eighth clause, on either of them dying bethus regularly and methodically con- fore marriage. It is, then, unnecessary to structed, we should naturally expect that follow the counsel through their extensive if the testator intended to annex a limita- investigations on the effect of the clause tion or restriction to any particular disposi- in the will concerning the payment of tion, the limitation or restriction would debts; nor is it material to inquire quickly follow the disposition, or would not be so remote as to leave its application al- 461 together doubtful. We accordingly find that the clause devising lands to his son is versy. whether Sally Marye took, by the *devise to her, a fee-simple, or only a life estate in the lands in controIf she took a fee-simple, James quoad a distribution of it among his children. Marye (the appellee) will be entitled as her heir at law; she having died without child and intestate. If she took only a life es- This will, thus judiciously and systemattate, the fee, being undisposed of by the ically arranged, and adapted to the several will, descended to the said James Marye, as subjects aforesaid, each of which is taken heir to his father. On the merits, there-up in its due order and finally disposed of, fore, I have no hesitation in affirming the judgment. was it is admitted, in every instance, (except it be part of the 8th clause as aforesaid,) bespeaks a regular system of distribution on the part of the testator; it is incompatible with the idea that the testator would pass, by fits and starts, from one subject to another, notwithstanding he or his scrivener (for it is not shown that the will was written by himself) may in a few instances have sinned in point of grammar. In a will of this character, it would at least be necessary, in order to affect one class of property, by means of clauses relating regularly, if not exclusively, to an It was attempted to assimilate this case to that of Clay v. White. But I can perceive no kind of resemblance. In Clay v. White, the verdict showed that the plaintiff was entitled to recover only part of the land in controversy; but, that part not being So described as that possession could be taken of it, the verdict set aside on that ground. Here the title of James Marye to the whole is established; and the defendants admit, in the case agreed, the lease, entry and ouster; which admission, at that time, and in that form, is equivalent to the finding of a jury in a special verdict. It cannot now be disputed. It goes to prove the possession of the whole land by the appellees, and completely does away every effect which In the case before us, the 8th clause folmight otherwise have resulted from the lows immediately after four several clauses previous possession and lease by Weir, in relating only to negroes, and is immedithe record mentioned. As to the death of ately succeeded by the ninth section, relatthe lessor of the plaintiff, I had not ex-ing also exclusively to the same subject. pected that such an objection would be seriously urged after the case of Kinney v. Beverley. On every point, then, whether as to form or as to the merits, I am for affirming the judgment. JUDGE ROANE. This case has been ably and elaborately argued, and several questions have been raised upon it, which it is unnecessary to decide, under the very plain and simple view I have taken of the subject. The general propriety of the court's omitting to take too wide a range in giving its decisions is increased in the instance before us, by considerations arising as well from the actual state of the docket of 462 the court, as from the reflection that every case of the construction of a will depends, in a great measure, upon its own particular circumstances. In the will before us, the testator, in the three first clauses thereof, takes up the subject of the distribution of his land among his children; he then dismisses the subject, and never again resumes it, unless (which is contended) a part of the 8th clause relates to the land of the daughters as well as their negroes. The 6 next clauses, from the 4th to the 9th inclusive, relate only to his negroes, unless the before mentioned part of the 8th clause should be adjudged to form an exception. The 10th & 11th clauses relate to the raising and appropriating money to pay his debts; and after some necessary provisions touching the appointment of guardians for his children, &c. 463 other, that there should be an adequate expression to that effect: *otherwise, the general character of the will, as aforesaid, would turn the scale. The 8th section itself will also be taken to relate to that description of property only, unless there be clear or imperious expressions to the contrary; or unless, from a general view of the will itself, this shall appear to have been the manifest intention of the testator. Besides, that 8th section is compounded of two sentences, the last of which relates expressly to negroes; and by transposing these sentences (a liberty often taken by the courts in construing both wills and statutes) the last sentence, when thus transposed, would be affected and controlled by the first. This, then, at most, is not a question whether a clause of a will shall be differed in construction from those which immediately precede and follow it; but whether a single sentence of such a clause shall be construed (to complete the climax) so as to derange the clause itself of which it is a member. Such a construction would scarcely be justified in any will, however irregular or incoherent in its other parts: but certainly not in one of the systematical and regular character of that before us. In a will of this cast, it was necessary for the testator to point explicitly at the other class of property; or he will be taken to mean only such as he was disposing of by the general tenor of the clause in question: after having dismissed one subject, and taken up another, he will not be construed to have resumed the former, unless his expressions to that effect be clear or unequivocal. 66 The word "parts," " however, has been clutched at to carry the 8th clause into real property also, because the same word had been before used in relation to the lands. There is about as much force in The 15th clause designates and subjects a part of his land to be sold, in preference to his negroes, for the pay- 464 this argument, as there *is in that ment of his debts. It returns back, infounded upon the word "give," which deed, to the subject of his land, but that is used in all the clauses, or upon the word only for the purpose aforesaid, and not "have,” as quoted (ad captandum) from |