
    *John Kennedy against Thomas Ruston Kennedy.
    On a will dated in June 1778, devising a legacy of 500I. it is the province of auditors and not of a jury to determine whether the depreciation act applies thereto.
    Debt, sur legacy. Plea, payment, with leave, &c.
    John Kennedy, the father of the parties, by his will, dated 15th June 1778, devised to the defendant,-his eldest son, two fifth parts of his estate, real and personal, he paying to his brother John 500I. when he should become of age. To his daughters Mary and Sarah, and to his son John, each, one fifth part of his said estate, and to the Presbyterian Charlestown Congregation 15I., together with 5I. in the hands of David John, provided they should therewith surround their graveyard with a stone wall.
    Mr. T. Ross for the plaintiff
    contended, that it was evidently the intention of the testator to put his sons in a state of some equality, and therefore intended the 500I. as specie. Mr. Hemp-hill for the defendant insisted, that the testator being a warm advocate for the money emitted by congress, and having had no dealings in hard money during the revolutionary war, must be supposed to mean the bills of credit then in circulation.
   By the Court.

This is mere conjecture on both sides. Nothing can be inferred with certainty ex visceribus testamenti, the only circumstance of any moment being the inadequacy of 20I., (at four for one,) to inclose a church-yard with a stone wall. But the testator here, has not expressed his meaning, in what species of cash this 500l. should be paid; and are the court and jury to make a guess at the justice of the case, without sure data ¶ This case appears to be within the meaning of the depreciation act of 3d April 1781. 1 Dali. St. Laws, 880. It is “a debt or “demand, incurred between the 1st January 1777 and the 1st “March 1781.” It is a dispute about depreciation singly. 1 Dali. 248. Auditors under the act possess the authority of examining the parties on interrogatories, and can with more facility investigate “the nature and circumstances of the case.” From former wills of the testator, his usual habits, expressions respecting his family, &c. they may be enabled to form a correct judgment of his intention : they have powers which we do not possess.

Yeates, J. added that the case of Levan v. Fry, at Reading, was determined on the same principles.

The court discharged the jury, and nominated auditors, which were struck by both parties.  