
    COURT OF APPEALS,
    MAY TERM, 1789.
    Joseph Sprigg and others against John Weems and others.
    THIS was an appeal from the Court of Chancery,
    
    On the 13th of September, 1784, the appellants filed their bill in the Court of Chancery, against the appellees. By the bill it appears that fames Weems, being possessed of a very considerable personal estate, consisting of slaves, stock, ready money, Continental and State of Maryland loan-office certificates, bills of exchange, plate, and other articles, duly made and published his last will and testament in writing, bearing date the 14th of November, 177S, by which will the testator made divers dispositions of certain parts of his personal estate, and provided for the payment of his funeral expenses, his debts that might be justly due, and the legacies therein, given out of a certain fund, by the will appropriated for that purpose, and appointed and constituted his son folm his executor. That the testator died in or about the month of September, 1781, without altering or revo-; king the said will. That the said executor proved the will, -and possessed himself of the whole personal property of the testator. That at the time of the death of the testator, there were debts due and owing to him by bonds, &c. to a large amount, which the executor had received. That the said testator by his said will did not make any disposition or bequest of his plate, ready money, and loan-office certificates, of which he teas possessed in his lifetime and at his death, nor of the debts due to him, or of any part thereof nor did he by his said will subject them to the payment of his funeral expenses, debts or legacies ; but as to the same, the said testator died intestate. That the said testator left three sons, viz. fohn, William, L. and fames, (the appellees,) and one daughter, Margaret, who intermarried with foseph Sprigg, .(one of the appellants,') that she is since dead, and letters of administration on her estate had been' granted to the said Sprigg. That Sarah, the wife of William Allien, Anne, the wife of Daniel Kent, Elizabeth, the wife of Levin Ballard, and Mary Bond, (also appellees,) ate the children of Roger Wheeler and Susanna his wife, which, said Susanna was also a daughter of the said testator, and died during his life-time. That Samuel Chew (another of the appellees) is the only child of Samuel Chew and Sarah his wife, and which said Sarah was another of the daughters of the said testator, and died in his life-time. That the said testator left no other children or grandchildren, but those above mentioned. That they claimed a distribution, each of one sixth part of the moneys, plate and certificates, of which the testator was possessed as aforesaid, and of all the debts due to him,, and moneys received by the executor. •
    The answers of the appellees admitted the facts stated in the bill, except that they denied, that the testator, by his will, did duly dispose of his plate, money, loan-office certificates and debts, and contended, that he did not die intestate with respect to any part of his real or personal estate.
    The will of the testator, which is exhibited, recite?. that being in perfect health, and of sound mind and memory, makes his last will and testament, “ directing in what manner the real and personal estate which Almighty God has bestowed upon me, shall be distributed after my decease.” ,
    He then devises all his real estate, and recites, that he had advanced for his daughter Susanna, on her intermarriage with Roger Wheeler, a full share of his personal estate, adds 400/. to be divided among his four daughters, to be kept and given to their children, when married, or of age.
    He then recites,, that lie had advanced handsomely for his daughter Sarah, on her intermarriage with Samuel Chew ; yet to induce him to make an adequate provision for her son, he gives the son 1,000/. certificates in the continental treasury, the interest to be added to the principal, and paid when he arrives of age. But if he dies before,- to be considered as part of his estate.
    He then bequeaths to Margaret Elzey, 1,000/. continental certificates, discounting therefrom such sums as heretofore given, or that he may hereafter give her before His death.- Also two negroes, a carriage, horse, saddle and bridle ; and adds a note, that the negroes, pjate and household furniture before given, should not be accounted any part of the bequest.
    He then directs, “ all the remaining part of my personal estate, (except the silver plate,) viz. negroes, horses, cattle, &c, be sold at public vendue, and the money arising therefrom to be put into the Continental or Stale treasury, and that after my just debts, funeral expenses and legacies are discharged, the remaining sum shall be divided into three equal parts, and put into possession of my three sons, to be by them kept in such treasury, and the interest thereon added to the principal yearly, to be by them kept for the benefit of all their now lawfully begotten children, and also all those that may be hereafter lawfully begotten by either of them, and that each of my sons shall pay to their child-Yen, all the aforesaid part and interest in such proportion, as they shall think proper after their girls are married, and their sons attain the age of twenty-one years; but if either of my sons shall neglect so to do in their life-time, or by their last will direct how they would have it done, it is my will, that the same be equally divided amongst them; and if either of them should die before they receive their part, such part shall be equally divided amongst the other children of such son aforesaid, and no other person shall have any part thereof.”
    The case having been fully argued before Chancellor Rogers, as stated in his decree, he did, on the 17th of August, 1786, adjudge, order and decree, “ that James Weems the testator, in the bill arid answer mentioned, did not die intestate of any part of his personal estate, except his silver plate, and that the complainants’ bill be dismissed, so far as the same seeks relief respecting the personal estate of the said James Weems, exclusive of the said silver plate, and that the said defendants, by their further answer to the said bill, do and shall make and give a full and particular discovery and account of the silver plate of which the said James Weems died pos sessed or entitled to, so far forth as hath come to theíi knowledge.”
    From which decree the present appellants appealed to this Court.
    
      J. T. Chase, for the appellants.
    The question is, whether James Weems died intestate as to his State and Continental loan-office certificates, debts, plate and readit •money ?
    
    The rules of construction of wills are,
    1st. The intention of the testator is to prevail, if consistent with law, 2 Atk. 375.
    
    2d, The intention is to be collected from the words of the will. 3 Burr. 1541. 1622. 2 Burr. 771.
    
      Where the testator expresses himself in legal words, they are not to be disregarded, to follow the intent arising by other words which are doubtful, and afford implication only; for when we quit a clear and settled rule to J follow such intent, we leave certainty for incertainty. 2 Atk. 576. The Court cannot make a will, or give an arbitrary construction to it. 2 Burr. 771. Great inconveniences have arisen by departing from strict words, from the incertainty it produces. 2 Atk. 577. An heir at law is not to be disinherited, unless by express words, or necessary implication. 3 Atk. 10. The Court would not infringe the rule in favour of younger children, who claimed it as a provision. An heir ought not to be disinherited by doubtful words. 2 P.Wms. 393. It must be a necessary, and not a possible, implication; for the heir’s title being plain and obvious, shall not be impeached by construction. 2 Bac. 66. 81. Gilb. Rep. 39. 41. 2 Atk. 102, 103. Vide 2 Vez. 164, 165. Sibley v. Cook, (3 Atk. 572, 573.) a strong casé to prove, that neither the heir at law nor next of kin can be disinherited or excluded by intention of the testator, without words. 3 Atk. 747. 1 Barnard, 458.
    
    The next of kin take by a kind of succession, ab in■ testato, without the assistance of this Court; and it is the law that throws it upon them. 3 Atk. 231. Precede in Chan. 567. By the statute of distribution, the succession to the personal estate is as much settled and fixed in the next of kin, (when it is not disposed of by ¡the will,) as by the common law the title to the real estate is fixed in the heir at law, if not given away by .the will. 1 P. Wms. 554. According to the rule in favour of the’heir at law, by a parity of reason; indeed with' more reason may the position be made, the representatives of the deceased shall not be excluded or deprived of their distributive shares, unless by express words, or necessary implication.
    
      The law which prefers the heir at law, or the eldest son, in exclusion of the other children, is founded in policy only, and hot supported by justice, nor does it coincide with the feelings of humanity. The statute of distribution has established a reasonable and equitable rule, and does what a good and just parent would do. It makes an equal provision for all his children. 2 P. Wms. 439,440. From whence I conclude there is more reason to apply the said rule in favour of the r epresentatives of the deceased, and to determine they shall not be excluded, but by express words or necessary implication.
    A chattel shall not be taken from an executor, unless by express words or necessary implication. 2 Bac. Abr. 66. The ground of the rule is, that the heir at law has a presumptive title cast on him by the law. This right cannot be destroyed, but by express words or necessary implication. There is the same ground for the rule in the case of the next of kin; they have a presumptive right to the personal estate, thrown on them by the statute of distribution. This right cannot be defeated but by express words or necessary implication.
    It will be contended, it was the intention of the testator to dispose of all his estate, and that he did not intend his daughters should have any part of his estate, but what he had expressly given them ; and this intention is to be inferred from coupling the preamble with the last clause.
    The preamble has no weight where the dispute is, whether the subject is disposed of or not. It is nothing more than words of form, thrown in by drawers of wills. 3 Atk. 226. 231. Cowp. 657. 660. 2 Atk. 3 Atk. 61. 2 Bl. Rep. 890, 891. But wh¿?eX) tion is, as to the quantum of estate, the jyré^dnble may have some weight, In the case in introductory clause; the residue of personÍMfstate, vised to the three sons, and 10s. sterling |dv^tj'^$SÍhÍ' heir at law; all which indicated a plain intentlqg tqjgyg a fee to the three sons. But the Court would not control the rule of law,' without words expressive of such intention. Cowp. 659, 660.
    Suppose the testator intended to make a disposition of his whole estate, it does not follow he meant the devisees should have it. The Judge being satisfied in his private opinion, will not do, for he must view it with judicial eyes. Intention, without operative words, will not do. Vide 2 Bl. Rep. 889. 891.
    As to the clause “ all the remaining part of my personal estate, viz.” &c. the plain intention was, to pass only such things as were the proper objects of appraisement and sale. This is evident from the specification of particular things, all of which were the objects of sale. It is plain from the nature of the disposition. Those things were to be sold and the money to be invested in certificates. They made a fund for the payment of debts, legacies, and funeral expenses, and the sum which should remain, was given for the benefit of his sons’ children. This plainly means, that part of the money arising from the things to be sold which should remain after paying-debts, &c. the plate expressly excepted. Although his whole personal estate was the proper fund for paying-debts, the testator could subject a part in exemption of the rest. He could have exempted the whole and subjected his land. The things directed to be sold were perishable, and the keeping of them would burthen the estate with a useless expense. He could not intend his certificates, debts and ready money should be sold, because they were not proper objects of sale, and because the money arising therefrom was to be laid out in the purchase of certificates, therefore such intention would be most absurd.
    In common parlance, and according to the general idea, personal estate extends to, and comprehends, such things only as are the proper objects of appraisement and sale. Debts, bonds and ready money, are not in-eluded in the idea of personal estate. And such was 1 the testator’s idea of personal estate. We cannot have a better exposition of his meaning.
    The enumeration of somethings is an exclusion of all ° , others. Nothing can be comprehended under theu £s?c.” but things of the like nature with those specified, and such as are the proper objects of an appraisement and sale. The “ viz.” was inserted for the purpose of explaining, in a more precise and certain manner, what was intended; and the “ &c.” must be confined to things of a similar nature with those enumerated. A. devised to his niece all his goods, chattels, household stuff, furniture and other things. By the words “ other things,” nothing shall be intended but things of the like nature with those mentioned; and ready money will not pass. 2 Bac. Ahr. 69. 1 Eq. Ahr. 201. pl. 14. All things not before bequeathed, shall be restrained to things ejusdem generis. 1 P. Wms. 302, 303. 2 Eq. Ahr. 323. pl. 19. 438. pl. 32. A devise of all goods and things of every kind, and sort whatever, in a closet, will not pass money ; for the subsequent word thing, shall be confined to household goods, and what is of the same species. 2 Atk. 112, , 113. 3 Atk. 61. Although the general words, “ -whatever I have, or shall have, at my death,” would have passed notes and bank bills, yet the particular words which follow, as plate, jewels, &c. restrain them to things of the same nature. 2 Atk. 104. 2 Bac. Abr. 81. See 8 Fin. 277. pl. 6. 278. pl. 17. 4 Mod. 140.
    General words, in a will, may be qualified by special words subsequent, and shall not be construed to subvert the intention of the testator, explained by such suhscquent words. 8 Vin. 305. pl. 10. Skin. 632. pl. 1. 3 Atk. 230. The general words, “ my personal estate,” are restrained by the particular words which follow. A devise in express -words, shall not be extended by subsequent general words, further than the natural meaning of the preceding ones. 2 Atk. 113. Barn, in Chancery, 261.
    Although the intention is plain, the Court cannot decree contrary to the rule of law. Z Atk. 450, 451. 2 Vez. 49, 50. Cowp. 659, 660. Where the testator expresses himself in legal words, they are not to be disregarded, to follow the intent arising by other words which are doubtful, and afford implication only. 2 Atk. 576, The Court may construe and expound words in a will, but cannot reject them. 3 Atk. 233. Cas. temp. Talb. 29. Cowp. 302. The Court will not lean against an intestacy. 3 Atk. 61.
    Cooke, for the appellees.
    There cannot be a rule more clearly established, or better known, than that the intention of the testator is to prevail in all cases, on the construction of wills, where that intent is not contrary to the policy of the law. To effectuate this intent, every word in the will is to have a construction, if you can give it one. 1 P. Wms. 232. 652. 599. Burr. 1540. 3 Atk. 409, 1 Fez. 106. 255. But if the intent appears, and you cannot otherwise give it effect, and carry it into execution, the Court may transpose sentences $ may insert them, or strike out those that are inserted. 1 Vez. 15. 2 Fez. 279; Co. Lift. 217. c. 1 Burr. 238. 1 Wtls. 165. 2 Wils. 323. 2 Burr. 770. 1 Wils. 165. 2 Fez. 279. See 2 Eq. Abr. 321. 2 P. Wms. 525. Fortes. 226. 228. 1 Atk. 412. 2 P. Wms. 282. 3 Atk. 286. 1 Atk. 415. 3 P. Wms. 295.
    These positions are so well understood, that it is needless to cite cases to prove them. The single question, therefore, on this occasion is, what was the intent of the testator P and that, I contend, clearly appears on the face of this will, without transposing, striking out, or adding one word to it. 3 Wils, 141. 2 Wils. 323. 1 Wils. 166. 2 Burr. 770. 3 Burr. 1541, 1542. 1622. 2 Atk. 113. Where there are two intents, the greatest shall prevail.
    Mr. Weems, a man of sense, makes his will professedIy to direct how his -whole real and personal property should be inherited after his decease ; yet after particularly considering the situation of all his children, and even grandchildren; after going into calculations of what he had given them respectively before, and the expense of raising and maintaining the children of one who had died; yet the complainants would put such construction on this will, as to show the testator had forgot the most considerable part of his personal estate, and made no provision respecting it. No man of plain understanding, who is not a lawyer, can read this will and retain such ideas.
    Mr. Cooke then examined and compared the particular clauses, and said, that although every case on the construction of wills must stand on its own bottom, yet the Courts have laid down some general rules for construction, where the intention of the testator is not so clearly expressed, as to make it unnecessary to resort to them.
    Every word is to have a construction, and none to be rejected if it can have effect j for, as the intent is to be collected from the words, it would be making a will, instead of construing it, to reject the words of the testator, if they can have operation. 2 P. Wms. 282. 3 Atk. 233. The introductory and residuary clauses would have no effect, if there was an intestacy as to any part of this estate. 2 Vez. 179. 3 Burr. 1623. 1 Wils. 334. 3 Wils. 141. 1 Atk. 433. Cowp. 307. 352. 3 Atk. 491. 2 Durnf. 498. 656. 3 P. Wma. 295.
    Though the intent must prevail, yet there is a difference In the construction of wills, as to real and personal estate j in the former, technical words are necessary. 1 Atk. 416. 1 Vez. 141. 2 Vez. 166. Free, in Ch. 230. By the common and civil law, the hare making a will and appointing an executor, is a gift of the whole personal estate to him ; but if a legacy is given to the executor, then he is consider-e(j as a trustee for the next of kin, on the implication that the law raises, that the testator would not give part if he intended the whole. So where there was a' devise of 5001. and afterwards all his goods and chattels at Normanton. A sum of 400/. that was in the house at his death did not pass, because the Court said, if he intended it, he might have as well added it in the first instance. 2 Ch. Rep. 190. 1 Eq. Abr. 201. pl. 14.
    If the next of kin take in representation, then the giving them legacies excludes, by implication, an intention of their having any more. 1 P. Wins. 550.
    
    The , Court will presume possession, at the time of making the will, if nothing appears to the contrary. S Wils. 243.
    
      Jenings, for the appellees.
    The intention of the testator is the polar star. This is a question of construction. Shall the will be so construed as to make the testator die intestate of the greater part of his personal estate ? As to the rule that the heir shall not be disinherited without express words, there is no case to support it as to personal property. The reason of the rule is, that the heir at law under the feodal system, is burthened with many services to the lord. There are only-two cases where the intent of the testator shall not prevail as to personal property; 1st. Where the testator says his personal property shall descend in the same manner as his real estate ; 2d. Where there is a limitation over upon a remote contingency. The preamble indicates an intention to dispose of the whole of his real and personal estate. That such was his intention is plain beyond construction. The rules of construction, as to real and personal devises, are different. As to construction from intent, -and that intent taken among other parts from the preamble. 1 Atk. 416. 3 Wils. 
      197. 3 Burr. 1621. 1625. 1 Atk. 433. 3 Atk. 785. 1 P. Wms. 232. 3 Burr. 1541. Rut many cases only serve to perplex; it is from the whole will that the intent of the testator is to be drawn. 1 Wils. 166. 2 Burr. 770. 3 Burr. 1541. 1622. Where two intents appear, the greater must be effectuated. 2 Wils. 323. The testator shall not be supposed to have forgotten pre*cedent words so as to use subsequent contradictory ones. 1 Atk. 415. 1 Atk. 416. shows the difference between the construction made as to real and personal property. It appears from the wprds of the will to be the intent of the testator to part with the whole estate. 3 Wils. 141. 3 Burr. 1621. 1 Atk. 433. 1 P. Wms. 232. 599. 3 Burr. 1541. 3 Atk. 409. 8 Fin. 295. Words shall be made to apply, so as best to answer the iment of the testator. 3 Burr. 1884. 1 P. Wms. 599. Where the clause is, “ all the residue, viz. horses,” &c. the latter words shall not control the general clause. But if the. particulars be first named, as bank stock, &c. they shall be restrained to things of the same kind. 8 Tin. 295. Words are to have a different construction when applied to different matter, and according to the subject matter, may have a different meaning. 2 Vez. 616. The testator, by devising in such particular expressions to the children of Roger Wheeler, to the son of Mr. Chew and Mrs, Elzey, plainly denotes he intended they should have no more. He is careful to provide, that the son of Mr. Chew if he died under age, should not convey his legacy to his representatives, as he is careful in such case to limit it over, to be considered as part of his estate. But by the complainants’ construction, this residue, of so much more consequence than the other part of the estate, would go entirely out of the family. . It was his intention, therefore, that neither the son of Mr. Chew, the children of Wheeler, or the children of his son, should have any power over any part of his estate, till they came of age, or married; and yet by the complainants’ construction, they would take the residue immediately on his death, and might dispose of it m any manner they thought proper- A devise of horses, cattle, ike. would not Pass houshold furniture, or plantation utensils, because not ejusdem generis. But it was intended they Should be sold in this case, because, after giving away those articles, the plantation utensils would be of no use.
    Chase, for the appellants.
    The intent of the testator is to prevail, if it is consistent with the rules of law. And what are those rules ? As to the construction to be given to the words, that the heir shall not be disinherited by implication. 1 Salk. 226. Cro. Eliz. 16. 1 Atk. 432. 2 Bac. Abr. 68. pl. 2. 1 Barnard, 458. The devise to the other legatees, shows his intent only, by his will, to give no more. But the appellants do not claim-by the will, they claim by law, all that is not given from them. In this case, there was a legacy to the executor ; he stands as a trustee for the next of kin, who aro here precisely in the predicament of the next of kin in England, where there is a legacy to the executor.
    Martin, (Attorney-General,) same side.
    Other parts of the will are not to be resorted to, unless the clause is' doubtful in itself. Read the clause without the words ■negroes, horses, cattle, &c. and it will then read, “ all the remaining part of my personal estate, except the silver plate, be sold.” The viz. to prevent the generality of the words from having effect, had better not be inserted. 2 Atk. 104.
   The decree of the Chancellor was affirmed by the Court of Appeals, at May term, 17"89.  