
    Richmond.
    Pryor v. Duncan & als.
    
    1849. April Term.
    
    (Absent Brooke, J.)
    A testator devises as follows: I lend to my daughter Lucy, my negro woman Sidney and her child Sarah, and negro boy named John, to her during her natural life, and to her heirs lawfully begotten on her body. And should my said daughter or her husband dispose of, convey out of the way, conceal or attempt to alienate the negroes aforesaid, I do hereby declare her title to cease, and direct my executors to take them into possession. And in such case, after her decease, they and their increase to be divided among her children, if any living; otherwise to be divided among my children, J, E, P and C, and their heirs. Held : The daughter Lucy had but a life estate in the slaves; and her children took in remainder as purchasers under the will.
    This was an action of detinue brought in the Circuit court of Amherst county in 1829, by Wesley L. Dun-cam and Sally his wife, William Davidson and Polly his wife, William PI. Camden, and Henry L. H. Camden, against Hartwell Pryor, to recover a slave named Abby. The plaintiffs claimed title to the slave under the following clause of the will of Charles Burrus: “I give to my daughter, Lucy Camden, five pounds; I also lend her my negro woman Sidney, and her child Sarah, and negro boy named John, to her during her natural life, and to her heirs lawfully begotten on her body. But should my said daughter or her husband dispose of, convey out of the way, conceal or attempt to alienate the negroes aforesaid, I do hereby declare her title to cease, and direct my executors to take them into possession ; and in such case, after her decease, they and their increase to be divided among her children if any living, otherwise to be divided among my children, Joseph Burrus, Elizabeth Pickett, Permelia Burrus and Carolus Burrus, and their heirs.” This will bore date in May 1795, and was admitted to probat in January 1797. The female plaintiffs and William H. and Henry L. H. Camden were the only children of Lucy Camden ; and the slave Abby was the child of Sidney mentioned in the will, and born after Sidney went into the possession of Lucy Camden and her husband.
    In 1810 an execution'was levied on the slave Abby and others, as the property of Henry Camden the husband of Lucy Camden, and they were sold and purchased by his father William Camden; and after several intermediate sales, Abby was purchased by the defendant Pryor about 1822. Lucy Camden died about 1824 or’26.
    The cause came on for trial in 1844, when the Court on the motion of the plaintiffs, instructed the jury that Lucy Camden took a life estate in the slaves mentioned in the aforesaid clause of the will of Charles Burrus, subject to the condition .thereto annexed, with remainder in fee to her children living at the time of her death, and the heirs of such as might be dead. To which opinion of the Court giving the instruction, the defendant excepted.
    The jury found a verdict for the plaintiffs, on which the Court entered up a judgment. Whereupon -the defendant applied to this Court for a supersedeas, which was granted.
    The case was argued in writing by Cooke for the appellant, and Garland for the appellees.
    For the appellant:
    The first proposition which I shall submit is, that the bequest “ to Lucy Camden, during her natural life, and to her heirs lawfully begotten on her body,” is tantamount to a bequest to her and the heirs of her body.
    In 2 Fonblanque 70, or book 2, ch. 3, sec. 4, it is said:
    “ And whenever the ancestor, by any gift or conveyance, takes an estate for life, and after, in the same gift and conveyance, a limitation is made to his heirs, in fee or in tail, the heirs shall not be purchasers.
    “ And as ancestor and heir are correlative as to inheritance, so are testator and executor as to chattels, and therefore, a remainder of a term to the executor [after an estate for life given to his testator] vests in the testator. Nor will the intention, though in express words, control the operation of the law upon the words expressed ; as when the ancestor has an estate for life given to him expressly, a limitation after to his heirs, or the heirs male of his body, puts the estate of inheritance in himself.
    “And though there be difference in words, when the land of freehold is devised to one for life, the remainder to his heirs, mediately or immediately, and when a term is so devised, the difference is in words only, for the testator’s meaning is the same,” &c.
    According to this authority, which is, in effect, the rule in Shelley's Case, so called, Lucy Camden took an estate tail in the slaves, or what would have been an estate tail, had the devise been of land.
    The second proposition which I submit is—in the very words of Mr. Fearne, 463, Executory Estates, ch. 3, section 3—“ That the limitation of a personal estate to one in tail, vests the whole in him, is proved by many cases.”
    He cites Stratton v. Payne, 3 Bro. P. Ca. 99; Pelham v. Gregory, Id. 204: Duke of Montagu v. Lord Beaulieu, 3 Id. 277: and he adds a condensed statement of Seale v. Seale, 1 P. Wms. 290; Prec. Chan. 421; Dod v. Dickinson, 8 Vin. Abr. 451, pl. 25; Butterfield v. Butterfield, 1 Ves. 133, 154; Daw v. Pitt, (afterwards Earl of Chatham,) heard at the Rolls July 1766, &c., &c.; same case decided by Ho. of Lords, 6 Bro. P. Ca. 450.
    And in accordance with this is Mr. Fonblanque’s note: Fonb. Eq. ch. 3, sec. 4, p. 79:—“It may be, therefore, stated as a general rule, that whatever words would, in the disposition of real estate, give air express estate tail, or such estate by implication, will, in the disposition of a chattel, real or personal, carry the whole interest.” The annotator then cites many cases as “ authorities in which words that would have passed an express estate tail, have been held to give an absolute interest in a chattel or personalty.”
    The annotator proceeds to say: “ And Burford v. Lee, Freem. 210, Anon. Freem. 287; Green v. Rod, Fitzgib. 68, are direct authorities to shew that the same construction applies to words which create an estate tail by implication only.” That is to say, that words which would have passed an estate tail, by implication, in land, have in like manner been held to give an absolute interest in a chattel or personalty. “ But (he proceeds to say) though such be the general rule [namely, in regard to estates tail by implication, not express estates], it shall not prevail, if from any expression hr the will, the testator appear to have intended the heirs or issue to take by purchase.” That is to say, the interest passed shall not be considered an estate tail in the first taker, if, from any expression in the will, the testator appears to have intended the heirs or issue to take by purchase.
    And here the annotator cites a number of cases, none of which I have by me, except Doe v. Lyde, 1 T. R. 593; and there I see a distinct recognition of the doctrine above stated, viz: that it is only in estates tail in personalty by implication, that the intent is to be looked into ; the doctrine as to express estates being, as herein before stated, that “ the intention will not, though in express words, control the operation of the law on the words expressed. ”
    Mr. Justice Ashhurst says, p. 596: “ It is very true that there has been a variety and contradiction of determinations upon this subject; but the general principle that governs these kind of cases is this. Where there is an express limitation of a chattel, by words which, if applied to a freehold, would create an express estate tail, the whole interest vests absolutely in the first taker, and a limitation over of such a chattel is too remote to take effect. But where there is not such express limitation, the Courts will consider the intention of the testator.”
    If the bequest had been “ to Lucy Camden during her life, and if she die without issue of her body, to my son C. Burrus,” &c., or “ if she die without leaving issue of her body, to my son C. Burrus,” &c., it would have passed an estate tail by implication only. In other words, the law would have implied or inferred, that the testator meant to give an estate tail; but as that conclusion was founded on the supposed intention of the testator to give the slaves to his daughter and the heirs of her body, i. e., an estate tail, it was quite proper to look into the will, and see whether a totally different intent did not therein elsewhere appear. And accordingly, the Courts look closely into the will, and if they can gather any thing shewing that the testator, by the words “ dying without issue,” or “ leaving no issue,” meant issue living at the death of the first taker, why then it was clear enough that he did not intend to create an estate tail, but to give the property to the first taker, for life, remainder to his children.
    And. in accordance with this, it will be seen that in the case of Elton v. Eason, 19 Ves. R. 73, the Master of the Rolls says: “ It is clearly settled that a bequest of personal property to a man for life, and afterwards to the heirs of his body, is an absolute bequest to the first taker. Whatever disposition would amount to an estate tail in land, gives the whole interest in personal property, which is incapable of being entailed.”
    It seems perfectly clear, from these authorities:
    1. That the bequest to Lucy Camden “ during her natural life, and to her heirs lawfully begotten on her body,” &c., was tantamount to a bequest “'to her and the heirs of her body;” or, in other words, vested in her an express estate tail in the slaves.
    
      2. That (in the language of Ashhurst, J.) “when there is an express limitation of a chattel, by words which, if applied to a freehold, would create an express estate tail, the whole interest vests absolutely in the first taker; and that it is only in cases where there is no such express limitation, that the Courts will consider the intention of the testator.”
    3. That Lucy Camden, therefore-, took the slaves in absolute right.
    4. That the authorities, whose name is legion, cited by the counsel for the appellees, shewing the strong inclination of the Courts, in cases of implied estates tail in personalty, to find words in the wills creating them, indicative of a different interest, and to decide accordingly, have no bearing on this case, because it is a case of express estate tail.
    
    For the appellees:
    It is contended that the limitation upon this bequest is too remote, and the remainder over, therefore, void. The limitation is “ to her during her natural life, and to her heirs lawfully begotten on her body." If this clause stopped here and there was nothing else in it to shew the real intention of the testator, there might be some plausibility in the argument that this limitation was too remote and the remainder over void. But this is not all. In the same clause, we find this further restriction : “ But should my said daughter or her husband dispose of, convey out of the way, conceal or attempt to alienate the negroes aforesaid, I do hereby declare her title to cease, and direct my executors to take them into possession; and in such case, after her decease, they and their increase to be divided among her children, if any are living, otherwise," &c. This part of the clause affords additional proof that a life estate, only, in Lucy Camden, was intended, because, if it had been otherwise, the testator would not have affixed to the bequest void conditions; but it conclusively proves that the limitation over was to take effect immediately upon the death of Mrs. Camden, the first taker. The limitation over “ and to her heirs lawfully begotten on her body,” no doubt was intended to mean, and to be so expressed, living at her death, and this, I think, is manifest from the use of the term “ if any are living,” in the afterpart of the same clause-, in reference to these identical slaves.
    Again. The forfeiture annexed to the bequest proves that the testator intended so to fetter the estate bequeathed to Lucy Camden, that she could not convey out of the way, conceal, alienate, or in any way dispose of the slaves bequeathed, so as to prevent the remainder over from taking effect at her death. If he had intended a fee simple to Lucy Camden, he would not have imposed these restrictions, so repugnant to a fee simple title, and which, his own good sense would have taught him, were void.
    Again. The very terms employed in the bequest, “ and to her heirs lawfully begotten on her body,” cannot mean an indefinite failure of issue; but must mean, particularly, as taken in connexion with other parts of the clause, children of her body, who, if they exist at all, must exist at the time of her death.
    The intention to restrict Mrs. Camden’s title to a life estate, and that the remainder over should take effect at her death, may be fairly inferred from the fact, that every person who is to take, in case of her death, without living children, is in esse and children of the testator, and devisees and legatees in the will, so that the fee simple estate must rest either in her children, if any living at her death, or in the persons to take, at her death, without children.
    
      In this clause of the will, immediately following the bequest of the slaves, is a bequest of a riding horse of the value of ten pounds, one cow and calf, two pewter dishes, one basin and six plates; yet, the forfeiture follows, applies solely to the slaves and not to these articles of perishable property, which proves that the testator meant to protect the remainder in the slaves against any misconduct of the life tenant, thereby indicating, that in this whole clause, he regarded Mrs. Camden as holding a life estate only.
    Taking into view all these circumstances and these various provisions, it seems to me that there can be no doubt that the testator intended to give Mrs. Camden nothing more than a life estate in these slaves, and that the limitation over is, and was intended to be, to her children, living at her death.
    
    In the case of Higgenbotham v. Rucker, 2 Call 265, Judge Roane, in reference to this question of intention, said: “ It is a clear principle, that a limitation of personal estate, after an indefinite failure of issue, is void, as tending to a perpetuity; but it is also a principle, that with respect to 'personal estate, the Courts incline to lay hold of any words which tend to restrict the generality of the words ' dying without issue,’ to mean dying without issue, living at the death,” and in this opinion the other Judges concurred.
    Again. In the case of Selden v. King, 2 Call 61, Judge Roane said: “ Then, it is a rule that, in construing a will, the intention of the testator should be collected from the whole instrument taken together; every expression should have its due weight, and as is somewhere said, [in Blamford v. Blamford, 3 Bulst. 103, by Doddridge,] every string should give its proper sound.”
    
    Judge Cabell, in the case of Jiggetts and ux. v. Davis, 1 Leigh 368, after speaking of the construction of the term “dying without issue,” in a devise of real estate and its application to bequests of personal estate, says: “ With this difference only, that in cases of personal property, slighter circumstances will be regarded as evidence of a restrictive intention, than would be admitted in cases of real estate, such as the words leaving then, after,” &c. &c.
    In the case of Pleasants v. Pleasants, 2 Call 270, 284, Judge Roane, in reference to this very question, uses this strong and emphatic language: “Nay, the doctrine is carried so far, as to terms for years, personal estates, (for it is otherwise with regard to estates of inheritance, in favour of the heir,) that Courts are inclined to lay hold of any words, in the will, to restrain the general words ‘leaving issue,’ to mean leaving issue at his death : and thus support the remainder,” and refers to the case of Keily v. Fowler, cited by Fearne on Rem. 369, where those words were so restrained, in a case where the estate was to return back to the executors, in the event of dying without leaving issue, and to be distributed by them, and £50 were given them for their personal trouble. Here the words were so restrained, in order to reconcile the limitation to the devisee, with the nature of the trust reposed in the executors, and to be executed by themselves in their lives.
    Under the influence of this principle, so well calculated to effectuate, instead of defeat, the intention of testators, particularly in relation to the bequests of personal estate, this Court decided the cases of Dunn v. Bray, 1 Call 294; Selden v. King, 2 Call 61; Higgenbotham v. Rucker, 2 Call 265; Smith v. Chapman, 1 Hen. & Munf. 240; Royall v. Eppes, 2 Munf. 479; Timberlake v. Graves, 6 Munf. 174; Greshams v. Gresham, 6 Munf. 187; Cordle v. Cordle, 6 Munf. 455; Didlake v. Hooper, Gilm. 194; Burfoot v. Burfoot, 2 Leigh 119; to which, I respectfully refer the Court.
    
      These cases have been so often and so thoroughly-reviewed by the Court, and the doctrine which they establish so firmly settled, that I do not deem it necessary to detain the Court by any commentary upon them. I content myself with remarking, that the limitation in this case is much more restrictive than the limitations in several of those cases, and that the Court will find it much more difficult to infer an intention, in this case, that the limitation should take effect after “ an indefinite failure of issue,” than it was in some of those cases to infer a contrary intention. The case of Burfoot v. Burfoot, is the case of a devise; but, I think, very strong authority in support of the limitation.
    The English cases upon which I rely to sustain the validity of the limitation, over, in this case, are Pells v. Brown, Cro. Jac. 590; Forth v. Chapman, 1 P. Wms. 663; Roe v. Jeffrey, 2 T. R. 589; Crooke v. Devander, 9 Ves. R. 202; Goodtitle v. White, 5 Bos. & Pul. 383; Goodnight v. Searle, 2 Wils. R. 29; Sheffield v. Orrery, 3 Atk. R. 282 ; Chandler v. Price, 3 Ves. R. 101; Atkinson v. Hutchinson, 3 P. Wms. 258; Sheppard v. Lessingham, Amb. R. 122; Oakes v. Chalfont, Pollexf. R. 38; King v. Cotton, 2 P. Wms. 208.
    The cases of Hunters v. Haynes, 1 Wash. 71; Hill v. Burrow, 3 Call 297; Eldridge v. Fisher, 1 Hen. & Munf. 559; Sydnor v. Sydnors, 2 Munf. 263 ; Williamson v. Ledbetter, 2 Munf. 521; and Allen v. Parham, 5 Munf. 457, may be relied upon to shew that the limitation in this case, is too remote and the remainder over void; if so, in relation to them I will simply remark, that they were devises of real estate, and the limitation over, in each case, was to the person in remainder “ and his heirs forever. ” The case of Tate v. Tatty, 3 Call .307, may, also, be cited, and in relation to that, I will also remark, that Jesse Tate, “the first devisee, would have had only an estate for life, unless he had taken an estate tail,” (see the opinion of Judge Lyons, 313,) and therefore, it seems the limitation over to John Tate, though made without the words “ to him and his heirs,” could not take effect; because to effectuate the testator’s intention in favour of the first devisee, there being no words of perpetuity added to the devise to him, and the will bearing date in 1777, it was decided that he took an estate tail, and that estate was converted into a fee simple by the act of Assembly.
    I must again call the attention of the Court to the limitation over upon the life estate. It is not to Lucy Camden for life and then to the “ heirs of her body,” the “ issue of her body,” or “m default of issue,” or any such general and unrestrictive limitation; the limitation is “ to her during her natural life, and to her heirs lawfully begotten on her body.” I have before intimated, that this term, in itself, fairly interpreted, meant “ children,” and taken in connection with the latter part of the clause, clearly meant “children living at the time of her death.” If, in this interpretation, I am correct, this question is at an end, and the decision of the Court below, that Lucy Camden only took a life estate in these slaves, and the appellees the remainder in fee, is correct. That this was the intention of the testator, it seems to me, none can doubt.
    In 2 Jarman on Wills 353, it is said: “If the testator annex to the gift to the issue, words of explanation, indicating that he uses the term ‘ issue,’ in a special and limited sense, it is, of course, restricted to that senseand he cites various cases to prove the soundness of this rule. If this rule be true as to the word “issue,” it seems to me to be equally true as to the terms “heirs,” “heirs of the body,” “heirs lawfully begotten on the body,” or any other term which the testator may use as a word of limitation, and clearly embraces the case now under consideration.
    
      In the case of Smith v. Chapman, a leading case, and which has been sustained by many subsequent cases and recognized by Judge Roane in Pleasants v. Pleasants, and by this Court in other cases, the devise was of a freehold and leasehold estate to A and B, and if either of them died and left no issue of their respective bodies, then to C ; and this was held a good limitation to C, if A or B left no issue at their death; by which the distinction was taken between a devise of real estate and a bequest of personal; sacrificing the particular to the general intention in a devise of real estate, and maintaining the particular intention in a bequest of personalty. In support of the rule established in that case, and the distinction taken between devises of realty and bequests of personalty, see Atkinson v. Hutchinson, 3 P. Wms. 258; Sabbarton v. Sabbarton, Cas. Temp. Talb. 55, 245; Sheffield v. Orrery, 3 Atk. R. 282, [where the additional words “ behind him” were used;] Lampley v. Blower, 3 Atk. R. 396; Sheppard v. Lessingham, Amb. R. 122; Gordon v. Adolphus, 3 Bro. P. C. Toml. Ed. 306; Denn v. Shenton, Cowp. R. 410; Goodtitle v. Pegden, 2 T. R. 728; Daintry v. Daintry, 6 Id. 307; Cadogan v. Ewart, 7 Adol. &. Ellis 636, the judgment in which contains an elaborate statement of the authorities, where the subject was personal estate; and Walter v. Drew, Comy. R. 372; Ellis v. Ellis, 9 East R. 382; Tenny v. Agar, 12 East R. 253; Dansey v. Griffiths, 4 Mau. & Sel. 61; Wotten v. Andrewes, 2 Bing. 126, where it was real estate.
    See, also, Ellis v. Selby, 7 Sim. R. 352; Carter v. Bentall, 2 Beav. R. 551; Ryan v. Cowley, Lloyd & Goold 71; in which the gifts over were in “ default of issue.”
    
    The case of Mazyck v. Vanderhost, 1 Bailey’s Eq. R. 48, seems to be particularly in point. In that case, there was a devise of real and personal estate to the testator’s daughter, and to “ the heirs of her body for
      
      ever ;” but if she should depart this life, leaving “ no lawful heirs or heirs of her body,” then over, and it was held that the limitation over was good as to the personal estate, but too remote, and therefore void as to the real estate. If this case could pass the ordeal and the limitation be sustained, it seems to me that there can be no difficulty as to the case at bar, where the limitation is so much more strongly restricted and the intention so manifest.
    The spirit of the act of 1819, giving a rule of construction to all these terms of limitation in wills, so utterly at war with the previous rule of bending the particular intention of testators to a policy called general intention, should greatly influence, if not control, the decision of this case, if there should be any doubt about it. The statute affords a wise rule and a just rule—a rule much better calculated to effectuate the intention of testators than that which it cuts up by the roots, and I regard it the duty of the Court to have special reference to this in all cases of the kind.
   By the Court.

The judgment is affirmed.  