
    Reno’s Executors v. Davis and Wife.
    Wednesday, November 8th, 1809.
    s. Executors — Appeals—Direction by One to Dismiss Order of Severance. — it one of two coexecutors direct an appeal, writ of error, or supersedeas, originally granted to them both, to be dismissed, the other may proceed without him: and since both are before the Court, an order of severance may be made without a summons.
    2. Wills — Construetion.--ln construing a will, the whole must be taken together, and no particular clause, or clauses selected.
    3. Same — Same—Slaves—increase.—The word increase, (without the word future prefixed,) in the bequest of a iemale slave is ambiguous; and, if the intention of the testator in nsing it cannot be ascertained from the whole will taken together, parol evidence is admissible to explain it.
    Elias Davis and Jane his wife, (late Jane Reno,) brought their bill in Chancery, in Prince William County Court, against Enoch Reno, and Bailis Reno executors of Francis Reno, deceased, to recover three slaves, Aaron, Eucy and Charlotte, children of a negro woman named Sib, bequeathed to the complainant Jane, by the said Francis her father. The controversy turned upon the construction of his last will, and particularly of the following clause; “I give and bequeathed to my daughter Jane Reno a negro woman and her increase, named Sib, to her and her heirs *for ever, also a negro wench named Delph, she and her increase to her and her heirs for ever.” It appeared that, before the date of the will, Sib had two children, Aaron and Eucy, and afterwards, before the testator’s death, a daughter, Charlotte, all which were claimed by the plaintiffs as comprehended in the bequest of Sib and her increase.
    The testator commenced his will with saying that, “reflecting on the necessity of having his estate divided among his children by will to prevent disputes among them after his death,” and “as for what worldly property it had pleased God to bless him with, he disposed thereof in the following manner.” He then proceeded to make sundry specific devises and bequests, but did not mention the children of Sib, except as above. In one clause he bequeathed to his son George a negro woman Celia, and her children, Rachel and Lidge, mentioning their names; in another, to his daughter Dolly, a negro woman Nell and her increase, and yet bequeathed to his son Francis a negro boy named Ben, who was a child of the same woman Nell, Before the concluding clause the following was inserted ; “It is my will that Bob, and James and Kate shall be sold or hired to them that they like, and what stock, household furniture and remains, and the money arising from the sale after deducting the legacies and paying all just debts and charges, to be equally divided among my children.”
    The defendant Enoch Reno opposed the claim of the plaintiffs ; stating in his answer that he never heard the testator make any declaration of his intentions whether the said negro children should pass by the said devise to the complainant Jane or not, but qonceived it manifestly appeared from the will itself, that when he devised a negro woman and her increase he meant the future increase, and not children which she had at the time of making the will; in support of which opinion, he relied on the above-mentioned clauses containing bequests to his son George, his daughter Dolly, and his son Francis. He further contended, that since a will takes effect only from the death of the testator, the children of a female slave devised in the manner in which *Sib was devised, born before the death of the testator, do not pass to the legatee.
    The defendant, Bailis Reno, filed a separate answer, in which he declared himself to have been always willing to give up the negroes in question to the plaintiffs, but that the same were in the possession of Enoch Reno ; that he was certain it was his father’s intention that the complainant Jane should not only have Sib and Delph, but also all the children that they might have from the time | of making his will afterwards, because, whenever the said slave Sib was delivered of a child, and application was made by the midwife for pay, he sent her to the complainant Jane, saying that Sib was her property, and, as he had nothing- to say to her, the said complainant must pay the fees ; and also, “because when a child was born it was considered as well by this defendant and his testator, as by others, to be the property of the complainant.”
    A number of depositions were taken to shew the intention of the testator, from declarations made by him at sundry times, and from other circumstances, to bequeath the children of Sib, as well as their mother, to the complainant Jane.
    The County Court decreed to the plaintiffs the negro girl Charlotte, born (as aforesaid) after the will was made, and dismissed the bill as to the other two children, Lucy and Aaron. The plaintiffs appealed to the High Court of Chancery, where the following decree was pronounced by the late Chancellor Mr. Wythe. “This Court is of opinion that, in a bequest of a female slave and her increase, the term increase is a synonyme with offspring, comprehending all her progeny whenever born. To confine the term to such as shall be born after the testator’s death, additional words seem necessary. Accordingly, where that restriction is intended, the epithet future (future increase) is usual. If the woman Sib had not been bequeathed to the daughter Jane, but to some other, and the testator had bequeathed the increase of Sib to that daughter, the legatee would undoubtedly *have been entitled to Lucy and Aaron. She would have been entitled likewise if Sib had died before the testator. If the word increase were equivocal, (as, if it, ex vi termini, necessarily comprehended not all the children of Sib, it must be,) this is an instance of that amphi-bology, (verbal ambiguity,) where a testator’s meaning may be proved by extraneous testimony. Here is abundant testimony that the testator intended his daughter Jane should have all the offspring of Sib. That such was his intention is proved by several of his family; by his friends ; by her who performed the obstetric office at the parturition of one, if not all of the slaves in controversy.” The Court, therefore, reversing that part of the decree of the County Court which dismissed the bill as to Lucy and Aaron, decreed them, together with Charlotte, to the plaintiffs ; from which decree the defendants, by counsel, prayed an appeal, which was allowed ; but no appeal-bond appeared in the record.
    The executor Bailis Reno refused to prosecute this appeal, and in writing directed it to be dismissed; whereupon Botts, for the appellees, moved to abate it for that cause. In support of this motion, he contended, that a direction to dismiss an appeal is equal to a release of errors ; that a release of errors by one executor is as good as a release of a debt; and that a release of a debt by one executor is good as to all, even after summons and severance,  A decree might have been confessed by Bailis Reno to bind both; and a dismission of the appeal has all the effect here that a decree confessed would have. It may be said that the Court will prefer the course elected by the executor who wishes to prosecute, as being most beneficial to the estate; but what is most beneficial depends on the cause. Enoch Reno is for running the estate to expense against the opinion of his coexecutor and of the Chancellor. It is the duty of an executor to avoid useless expense. If he gives up improperly he is liable, but the act is binding on the other.
    The doctrine of summons and severance is applicable to original plaintiffs only, but not to plaintiffs in error.
    *Wickham, contra.
    There are direct precedents in favour of one executor prosecuting a writ of error without the other,  The judgment being against them both, and the securities of both being liable, each is interested to relieve himself and his securities. The cases put by Mr. Botts, as analogous, of an executor confessing a judgment, and the like, will not hold ; because, it is evident, that the executor, and his securities only, are personally liable, though the assets in the hands of both áre bound.
    By an express act of Assembly, any one of several parties may appeal. So where two executors are plaintiffs, (either originally or in error,) one has a right to go on, though the other refuses,  The right of one executor to release a debt, or to release errors, so as to bar the other from recovering money due the estate, does not conflict with this position ; for “such release is a devas-tavit in him ; yet if he will not proceed at law it is ho devastavit; and therefore he shall not, by collusion with the debtor, and not proceeding, keep the other from recovering the assets, and not create a devastavit in himself.” All the arguments of Mr. Botts are met and refuted in Viner.
    Another question is, whether any process of severance is necessary in this case. I contend that no such process is necessary. The distinction is this; that, where one executor chooses to go on singly, and the other has never been in Court, a summons is necessary ; but where both are in Court, a mere order of severance is sufficient.
    
    Saturday, November 18. The Judges delivered their opinions on the preliminary point.
    
      
      Executors — Appeals.—See monographic note on “Executors and Administrators” appended to Rosser V. Depriest. 5 Gratt. 6; monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 203.
    
    
      
      Wills — Construction.—Ln the construction of a will the first object is to ascertain the intention of the testator, for what he intended is to control; but it is to be drawn from the will, the whole being taken together, and not from an isolated clause. Graham v. Graham, 4 W. Va. 322, citing Kennon v. McRoberts, 1 Wash. 96; Reno v. Davis, 4 Hen, & M. 283; Land v. Otley, 4 Rand. 313. The principal case is also cited in McCamant v. Nuckolls. 85 Va. 336,12 S. E. Rep. 180; footnote to Cheshire v. Purcell, 11 Gratt. 771.
    
    
      
      Same — Same—Slaves—Increase.—A bequest of a female slave and her increase, ought to be construed to apply only to future offspring, if the expression be not enlarged by the context of the will or other admissible evidence. Puller v. Puller, 3 Rand. 83, citing and discussing the principal case at pp. 86, 89, 90, 91, 92. See monographic note on “Wills.”
    
    
      
       11 Viner, 359, pl. 6, p. 360, pl. 13, p.,361, pl. 19.
    
    
      
       Ibid. 359,-pi. 2, 3, i, p. 360, pi. 12.
    
    
      
      2 Str. 783, Prescobaldi v. Kinaston.
    
    
      
       Rev. Code, vol. 1, p. 318. c. 167.
    
    
      
       20 Viner, 57; (I. 2.) pi. 5, citing Co. Litt. 139, a; 2 Sel Ion’s Practice, 536, sect. ix.
    
    
      
       20 Viner, ubi supra, in the marginal note, citing Gilb. Hist. C. B. 196, 197; Carth. 191, 9 Rep. 37, Hensloe’s case.
    
    
      
       20 Viner, 57; (K.) pi. 2, Ibia. 55; (G.) pi. 1, citing Yelv. 4, Lord Cromwell v. Andrews.
    
   JUDGE TUCKER.

In the case of Andrews v. Lord Cromwell, it was held that where a writ of error is brought by several, and there is an assignment of errors by one only, without suing a summons and severance of the others, it is null and void ; which seems to shew that, after summons, they may be severed, and he who chooses to proceed by himself may.

*In the case of Blunt and Farly v. Snedstone, the defendant in a writ of error brought by two persons obtained a release of errors from one of them ; and pleaded it in bar of .the writ of error, as a plea puis darrein continuance ; to which a demurrer was entered in the name of both plaintiffs in the writ of error. And the question made was, whether this release should bar both or neither of them. And all the Court, after argument, resolved it should bar him only who released ; for the plea being by way of action to discharge themselves of damages which were recovered against them, and to be restored to the possession (of lands) which was lost by the first judgment, and they being joined, in the first action, by the act of the plaintiff and not by their own act, it is not reasonable that the act of one should charge or prejudice the other. (But if they had been plaintiffs in record by their own act, (as in debt upon an obligation,) and had been barred in judgment, in error upon that judgment, the release of one should bar the other.) Wherefore it was adjudged that the judgment should be reversed as to him who did not release ; and that he should be restored to all he had lost; and, as to the other who had released, that he should be barred of his writ of error.

The same reasons, I conceive, will apply to the present case, and therefore am of opinion that the motion be overruled.

JUDGE)S ROANE) and FILMING, were of the same opinion.

The Court overruled the motion, “so far as it related to the abatement of this suit as to the appellant Elnoch ; being of opinion that the said Bailis may discontinue the said appeal as to himself, but that such discontinuance will be no cause for an abatement thereof as to the other appellant, nor any bar to his prosecution thereof alone ; and, it appearing to the satisfaction of the Court that the said Bailis had refused farther to prosecute this appeal, it was ordered that the same be discontinued as to him.”

^Thursday, November 23. On the merits, Wickham argued that, by the word “increase,” children born after the death of the testator only passed ; for at the time of the death and not until then, the will speaks. This is a question of intention. If the children living when the will was made had names, it would have been more natural to describe them by name, than by the word increase. But according to the general usage of the country, the word “increase” means the same as “future increase.” Parol testimony on this subject is improper, as it goes to prove what the testator meant by particular words.

Botts, for the appellees, relied on the preamble to the will, and the general testamentary clauses. The testator, after parcelling out his estate among his legatees, disposes of his household stuff, stock, and remains, to his children equally, as residuary legatees. If the word remains will cover the two children of Sib, who were then in existence, they will pass by that residuary clause ; but it is impossible to suppose that he should particularize his household stuff and stock, and yet not mention slaves, if he intended to comprehend them in that clause. Unless, then, the word “increase” will include the children born as well before as after the will, he died intestate as to them. Kennon v. M’Roberts, Davies v. Miller, Frogmorton, ex dimiss’ Bramstone, v. Holyday and others, and Busby v. Busby, are all cases in which the declaration by the testator of an intention to dispose of his whole estate has influenced the construction. The word increase, according to its explanation in Johnson’s dictionary, naturally imports issue born as well before as after any particular time ; and the constant usage is to insert “future” where it is intended to confine it to future increase.

But if the word be ambiguous, then parol testimony may be admitted to explain it. But, if it were doubtful upon all the other parts of the will whether the testator meant past as well as future increase, humanity alone should induce the Court to adopt the construction contended for by the *appellees, to prevent the separation of children from their mothers,

Wickham, in reply. With respect to the context, I admit it appears the testator meant to dispose of his whole estate ; but the residuary clause carries the whole. In all the cases cited, particularly in Kennon v. M’Roberts, the preamble was connected with the devising clauses, so as to restrict the duration, not the extent of the estate.

As to the admission of parol evidence, the rule has never been extended farther than to explain some latent ambiguity relative to the person intended to take, or the situation of the property devised.

In Sheltons v. Shelton, the main point was that the executors were entitled to the surplus, if it did not pass by the will. The decision then was, that parol evidence was admissible to rebut an equity. Again, there were various negroes of the same name, and others given on particular plantations. Parol evidence was therefore admitted to shew the situation of the estate. Fleming v. Willis, and the case from Term Reports, went no farther than Sheltons v. Shelton. Coutts v. Craig was a very different case from this ; the parol evidence being admitted there in support of the obvious meaning of the instrument, and to rebut an ambiguity raised by the defendant.

Tuesday, November 28. The Judges pronounced their opinions.

JUDGE) TUCK1)R.

I am not prepared to assign to the word increase, when applied to the gift of a female slave in a will, so extensive a legal operation as the Chancellor has in his decree. Although in some measure a popular expression in this country, I incline to believe it is generally used in a restricted rather than a general sense, as comprehending the future offspring of the female, and not that already bor n, at the time of executing the will. Being a word of *this doubtful complexion, it furnishes an instance of that kind of ambiguity in a will, that evidence may be permitted to explain.

In this very case one of the executors in his answer insists, and not without a considerable appearance of reason, “that it manifestly appears by the will of his testator, that when he devised the negro woman and her increase, he meant the future increase and not children born when the will was made ; because he devises by his will to his daughter Dolly Reno, a negro woman named Nell, and her increase, and devises to his son Francis, a boy named Ben, who was the child of the aforesaid Nell; nor ought we to forget, that children already born have generally, if not always, proper names, by which they might be clearly designated, as was very justly observed by Mr. Wickham in his argument.

But, in the present case, the answer and admissions of Bailis Reno, one of the executors, and distributees under the residuary clause in the testator’s will, have very great weight with me, and put beyond a doubt the intentions of the testator as attempted to be explained by other testimony.

On these grounds, I think the Chancellor’s decree should be affirmed.

JUDGE ROANE,

without deciding upon the import of the term “increase,” taken abstractly, or agreeing that the parol testimony in this case was admissible or proper, further than as furnishing facts necessary to conduct the Court to a proper conclusion as to the intention of the testator, generally to be collected only from the will itself, concurred, that in this case it was the intention of the testator to pass all the infant children: and added that, in a case of doubt, the law of humanity ought to turn the scale, and prevent the separation of the children from their mother.

JUDGE FEEMING.

This case depends upon the construction of Francis Reno’s will, which rests on the meaning the testator intended to give to the word increase. Where words *or expressions in a will have a doubtful or double import, it is a general, and safe rule, to expound them according to what appears to have been the intention of the testator, provided such exposition doth not contravene some known rule of law; in doing which the whole will must be taken together and no particular clause or clauses selected.

The testator in the preamble of his will says, “reflecting on the. uncertainty of life, and the necessity of having my estate divided among my children by will, to prevent disputes among them, after my death and, after saying he was of sound mind and memory, adds “and as for what worldly property it has pleased God to bless me with, I dispose of it in the following manner,” &c. clearly manifesting an intention to dispose of his whole estate ; and, after a number of specific devises and bequests, to his children, (of which he had many,) he adds, “Item, I give and bequeath to my daughter Jane Reno, a negro woman and her increase, named Sib, to her and her heirs for everwhich word increase may well be construed to include the children of Sib, born as well before, as after the date of the will, and ought to be construed most favourably to the legatees, and to have the same import as if, instead of the word increase, he had used the word offspring; and I am the rather inclined to believe that all the children of Sib were intended to pass by the bequest, as the word increase precedes the name of the mother; and, if the testator had intended that none should pass but those thereafter to be born, he probably would have bequeathed Sib and her future increase, which would have removed all doubt on the subject. But there is another circumstance in the will that leaves no doubt on my mind, as to the intention of the testator ; and that is, that, after disposing of a number of negroes, all except the two in question, specially by name, he adds “and what stock, household furniture and remains, and the money arising from the sale, (I suppose he meant the sale of the three negroes directed to be sold,) after deducting the legacies and paying' all just debts and charges, to be equally divided among my children.”

*Can it be, for a moment, believed that the testator, after having specially disposed of a number of negroes, would have left the two infant children of Sib (one of them probably at the breast) to be with his stock, household furniture, and remains, divided among his eleven children ? It could never, I think, have been his intention, and the word remains might be well satisfied with the kitchen furniture, plantation utensils, &c. which he thought too minute to be particularly mentioned.

So much for the construction of the will, unaided by oral testimony, which I think was admissible to explain the intention of the testator; but, without such aid, I am clearly of opinion the decree is correct, and ought to be affirmed. 
      
       1 Cro. 892.
     
      
       2 Cro. 117.
     
      
       1 Wash. 107.
     
      
       1 Call, 127.
     
      
       3 Burrow, 1618; 2 Bl. Rep. 536, S. C.
     
      
       1 Dallas, 226.
     
      
       1 Wash. 56, Sheltons v. Shelton; 1 Term Rep. 701, Doe, on the demise of Freeland, v. Burr; 2 Hen. & Munf. 622, Coutts v. Craig; 2 Call. 5, Fleming v. Willis.
     
      
       3 Call, It, Fitzhugh v. Foote.
     
      
       See 1 Bro. C. C. 472, 477, Fonnereau v. Poyntz; 1 Fonb. 118, 201, 427 ; 2 Powell on Dev. 71, &c.; 1 Term Rep. 701, 703 ; 2 Hen. & Munf. 620, Coutts v. Craig.
     