
    
      Executors of Mary A. Gyles vs. Jacob R. Valk.
    
    1. The defendant purchased from the plaintiffs’s testatrix, who resided in London, her interest in the residuary personal estate of W., of Charleston, of which, in his will, he had made no disposition, and to a distributive share of which, as one of his next of kin, it was supposed she was entitled; but there being adverse claims, the executors had, before this purchase, filed a bill to have the estate of W. settled under the order of the Court of Chancery. PlaintifFs’s testatrix executed to defendant a deed of assignment, whereby she transferred to him, her “share and proportion, right, estate, title and interest” in W’s. estate, with a power to act for her and receive her share. Defendant, at the same time, executed a bond for the sum agreed to be given for her interest. In the treaty for the purchase,- as recited in the bond, her right is spoken of as a “supposed share or interest” in said estate, “if she should be decreed to be entitled to a distributive share therein,” and the condition of the bond was, in case she “shall be decreed and declared by any competent tribunal to be entitled to a distributive share,” then that defendant do pay the price stipulated within three months next after he “shall receive or be put in possession of the said share f (“if any”)
    
    2. In an action upon defendant’s bond, it was adjudged that by the true construction of the condition, his liability accrued when the court decreed that the contingent right which he had purchased was vested in plaintiffs’s testatrix, and that by the power and control which from that time defendant exercised in the right, it was put in his possession.
    3. The word “share” in the last of the terms of the condition, held synonimous with right. .The use of these words in the bond, justify this signification.
    4. The words “if any” are to be understood, if any share shall be decreed.
    
      Before Evans, J. at Charleston, Spring Term, 1843.
    The late William Wightman died in 1835, having made his last will and testament, whereof he appointed T. F. Purse and others, his executors ; the settlement of the estate was committed by the will to Purse, who had a legacy of $2,000 a year, for three years. Wightman owed at the time of his death about $1.40,000, and by his will he gave legacies to be paid in money of about $96,000. The debts and legacies were charged upon his whole estate, and his executors were authorized to sell all the estate to pay; there was no residuary legatee, and as the estate was large, it was thought there would be a considerable surplus to descend to bis heirs at law, and distributees. The testator had two nieces, the plaintiffs’s testatrix, Mrs. Valk, and a nephew, Mr. Gyles, who was dead, leaving children ; these were his nearest relations, and claimed to have the residue of Wightman’s estate. A claim was also set up by a woman, who claimed as his wife. Among these claimants the executors did not choose to decide, and filed a bill in equity, to have the estate settled under the order of the Court of Chancery ; soon after the bill was filed, the defendant, Valk, went to England, where the plaintiffs’s testatrix, Mary Ann Gyles, resided. He there purchased from her, her interest in Wightman’s estate, for the sum of 1,990 pounds sterling, and took from her an assignment, with a power to act for her, and to receive her share ; at the same time, he gave- her the bond on which this action was brought. The'condition of the bond, (after reciting the assignment) was that Valk should pay the sum of £1,990, within two months after the receipt of her share of the estate, if any, or words to that effect. This was in the fall of 1837, and before there had been any proceedings on the bill in equity. Before Valk went to England, he applied to the executors to know the probable amount of the estate. By the appraisement, the estate in South-Carolina amounted to $467,940, besides a large real estate, mostly in houses and lots, in Charleston. Included in the inventory and appraisement, was a very large amount in desperate and doubtful debts, and claims. There was besides, a plantation in Georgia, and about 168 negroes; the land was appraised at $72,000, and the negroes and other personal estate, at $79,129, of which the negroes were set down at $63,000. The executors proceeded with despatch, to settle the estate, and acting, as Mr. Purse the executor said, by the sole advice of his attorney, without regard to the wishes or advice of Mr. Valk or any of the claimants. In the course of 1836, they sold the whole estate in Carolina, without raising enough to pay the debts and legacies. The amount of the real, estate sold, was about $59,000. In January, 1837, they offered the Geogia estate for sale; the land and negroes were set up together, but there was no bid. The negroes might readily have been sold at a full price; about ten were sold at $450 each. The reason assigned for the endeavor to effect a sale of the whole together, was that there was no immediate prospect of effecting the sale of the land, and if the negroes were sold off, the mills and plantation would be left exposed, and the value would be greatly diminished. A further attempt was made to effect the sale in the same way, in March 1837; first the whole was offered, then the land separately, and no bid made. Then the whole was offered again, and bid off by Valk the defendant, at the price of $100,000. A certain portion of the purchase money was required to be paid in cash. This Valk could not raise, except by a sale of the property, or a part of it; he accordingly contracted with one Williamson, to sell the plantation for 28,000, but Williamson could not pay the money, and in consequence thereof, this sale failed, as did also the sale to Valk. Things remained in this condition until December, when an offer was made by John Fraser & Co. to give $100,000. Notice was immediately given to those interested, and their consent asked, as the executors were unwilling to effect the sale without. The defendant, Valk, objected. To remove this objection, Fraser agreed to give him $6,000 over and above his offer for the land and negroes. The objection was then withdrawn, and the sale effected. At about the time this sale was effected, the executors signed a paper purporting that in the sale the land was valued at $40,000, and the negroes $60,000. In the summer of 1837, Mrs, Gyles arrived in Charleston, and imSeptember published a notice in the newspapers revoking her power of attorney. She died not long after, and the present plaintiff gave notice to the executors, not to pay the money coming to her, to Valk, the defendant.
    
      BOND.
    
      Knoiv all men by these presents, I, Jacob Roberts Valk, of Charleston South Carolina, in the United States of America, but now residing at Hims Hotel, Salisbury Square, Fleet Street, in the City of London, Esquire, am held and firmly bound to Mary Ann Gyles, of No. 13 Chatham place, Walworth, New Town, in the county of Surry, widow, in the penal sum of three thousand nine hundred and eighty pounds, of lawful money of Great Britain, to be paid to the said Mary Ann Gyles, or her certain attorney, executors, administrators or assigns, for which payment to be well and truly made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal, and dated this fifth day of October, in the year of our Lord, one thousand eight hundred and thirty six.
    Whereas, William Wightman, of Charleston, South Carolina, in the United States of America, Esquire, by his will, bearing date the fourth day of June, one thousand eight hundred and thirty five, after giving and bequeathing certain pecuniary legacies to divers persons therein mentioned, and directing the payment of his debts, appointed Dr. Edward W. North, Dr. Edward North, and Thomas F. Purse, executors of his last will and testament, and the said testator has since departed this life without altering or revoking his said will, and without having made any bequest or disposition of his residuary personal estate, and the above named Mary Ann Gyles being one of his next of kin, and (as it is thought) entitled to a distributive share thereof, with the other next of kin, of the testator; and disputes having arisen as to who are the next of kin of the said testator and entitled to a distributive share of his ¡residuary personal estate,, as to which he died intestate, a bill in Equity in one of the courts of the United States of. America has been filed by the said Edward W. North, Eward North and Thomas F. Purse, against the above bounden Jacob Roberts Valk, and Sarah his wife and others, to ascertain who are entitled to Ihe residuary personal estate of the said testator, left undisposed of, and not bequeathed by his said will.
    
      And whereas, by indenture, intended to bear even date with these presents, after reciting in part, or as to the effect hereinbefore recited, it is witnessed that the said Mary Ann Gyles, in consideration of the sum of one thousand nine hundred and ninty pounds of lawful money of Great Britain, therein expressed to be paid to her by the said Jacob Roberts Valk, hath granted, bargained, sold, assigned, transferred, set over, ratified and confirmed unto the said Jacob Roberts Valk, his executors, administrators and assigns, all that the share and proportion, right, estate, title and interest of her the said Mary Ann Gyles, of, in and to the residuary personal estate of him, the said William Wightman, deceased, not devised, bequeathed or disposed of by the said William Wightman, deceased, and to which she the said Mary Ann Gyles already is, or hereafter shall or may be, or become entitled as one of the next of kin of the said William Wightman, deceased. And all goods, monies, chattels, estate, effects and premises whatsoever, now due and payable, of hereafter to become due or payable in respect thereof. And all the estate, right, title, benefit, claim and demand whatsoever, of the said Mary Ann Gyles, at law or in equity, of, in, to and out of the same, and every part thereof respectively, to hold the same unto the said Jacob Roberts Valk, his executors, administrators and assigns, absolutely as his and their o.wn proper estate, effects, monies and premises.
    
      And whereas, the said sum of one thousand nine hundred and ninety
    462 pounds, mentioned in or expressed by the said indenture, to be paid to the said Mary Ann Gyles by the said Jacob Roberts Valk, has not in fact been paid to her, as he the said Jacob Roberts Valk doth hereby admit and acknowledge, but upon the treaty for the purchase of the said Mary Ann Gyles’s share and interest or supposed share and interest, of and in the residuary personal estate of the said William Wightman, deceased, [if she should be decreed to be entitled to a distributive share therein,) it was agreed by and between the said Mary Ann Gyles, and Jacob Roberts Valk, that the said Jacob Roberts Valk should enter into the above written bond or obligation, conditioned to be void upon payment of the said sum of one thousand nine hundred and ninety pounds, and interest, in manner and upon the terms and conditions hereinafter appearing.
    Now the condition of the above written deed or obligation, is such, that in case the said Mary Ann Gyles shall be decreed and declared by any competent tribunal or authority, to be entitled to a distributive share or proportion of the residuary estate of the said William Wightman, deceased, then the said Jacob Roberts Valk, his heirs, executors, or administrators, or any or either of them, do and shall well and truly pay or cause to be paid, unto the said Mary Ann Gyles, her executors, administrators or assigns, (without demand being made thereof by her or them) the full and just sum of one thousand nine hundred and ninety pounds of lawful money of Great Britain, without any deduction or abatement thereout, on any account or pretence whatsoever, within three calendar months next after he the said Jacob Roberts Valk, his executors or assigns, shall receive or be put in possession of the said share or proportion of the said Mary Ann Gyles, of and in the residuary estate of the said William Wightman, deceased, by virtue of the hereinbefore recited indenture, of even date with the above written obligation, or by any other means whatsoever, and do and shall pay unto the said Mary Ann Gyles, her executors, administrators or assigns, interest for the said sum of one thousand nine hundred and ninety pounds, after the rate of five pounds per cent per annum, of like lawful money, from the time the said Jacob Roberts Valk shall be put into receipt or possession of the share or proportion {if any) of the said Mary Ann Gyles, of and in the residuary personal estate of the said William Wight-man, deceased. Then the above written bond or obligation shall be void, otherwise the same shall be and remain in full force and virtue.
    (Signed,) JACOB ROBERTS VALK, (L. S.)
    
      Signed, sealed and delivered in the presence of
    
    THOMAS YOUNG, Solicitor, 29 Mark Lane, London.
    E. BOTWOOD, Solicitor, same place.
    SOUTH CAROLINA.
    John A. Gvi.es appeared and made oath, that he believes the signature of Jacob R. Valk, to this instrument of writing, to be his proper hand-writing, as he has often seen him write.
    JOHN. A. GYLES.
    
      Sworn to before me, this 7th Oct. 1837.
    JAMES KINGMAN, Notary public. SECRETARY OF STATE’S OFFICE, >
    Charleston, October 7th, 1837. )
    Recorded in book of miscellaneous Records, 5 Us. page 59 to 61, examined and certified by
    JAMES KINGMAN, Deputy Secretary of State.
    
      At June Term, 1837, the case was heard by Chancellor Harper. By the decree, Mrs. Gyles and Mrs. Valk were declared to be entitled to the estate as next of kin, but as Mrs. Gyles was an alien, she was excluded from the inheritance of the real estate, which was decreed to be the exclusive property of Mrs. Valk. The decree also directed the debts and legacies to be paid out of the personal estate; if this fund should prove deficient, then the decree directed the sale of the real estate, and after payment of the debts and legacies, the executors were ordered to hand over the balance to the defendant in right of his wife. This decree was acquiesced in, and confirmed by the Appeal Court in January 1838; the remaing funds of the estate were ordered to be paid to the commissioner, he to pay debts and legacies, if any. In June 1838, the funds remaining in the commissioner’s hands were ordered to be paid to Valk, and at a subsequent period, the matters of account were finally settled by a confirmation of the commissioner’s reports.
    Under the various orders made in the case, the commissioner paid over to Valk, in bonds and other valuable securities arising from the sale of the estate and debts collected by the executors, about $80,000, on account of the real estate, besides a iarge amount of judgments and other evidences of debts due Wightman in his lifetime, of which only a small sum had been, or ever could be, collected. By Wightman’s will, certain slaves were given to the executors, with a request that they should be allowed the control of their own time, and some provision was made in the will for their maintenance.
    This action was brought on the bond hereinbefore mentioned. The defendant pleaded specially that he had never received any thing from the personal estate of Wight-man, and therefore there was no forfeiture of his bond, as the condition was, that he was not to pay until two months after he was put into possession of her part of the estate of Wightman, if any. To this there was replication and issue, that the debts and legacies did not exceed the personal estate of Wightman.
    The foregoing are the material facts necessary to be understood as applicable to the grounds of the appeal. The presiding Judge was of opinion, and so charged the jury, that if, on the final settlement of Wightman’s estate, there was no personal estate to divide, the defendant was not liable to pay the price he had agreed to give according to the condition of his bond. If the land sold to Fraser was estimated at 40,000 dollars, then about 21,000 had been taken from the real estate to pay debts and legacies, and until this was reimbursed to Valk, out of the personal estate, he was not liable on his bond. The various grounds growing out of the facts-were submitted to the jury, and they found for the defendant —the foreman of the j ury stating that the j ury were of opinion that Valk had received in the over estimate of the value of the land sold to Fraser from the extra sum of $6,000 which he received from Fraser and other sources,. $16,00. The court was also of opinion, that the gift of the negroes mentioned in the last ground of appeal, was a legal bequest and could not be estimated as any part of the personal estate to which the plaintiffs’s testatrix had any right. In relation to the other grounds, it is only necessary to say, there was no evidence that Valk influenced the conduct of the executors in the settlement of the estate, and although there was a large amount of outstanding debts, they were of very little or no value, from which nothing had been realized; they were placed in the hands of an attorney, but nothing was likely to be realized from them.
    Plaintiffs appealed, on the following grounds.
    
      1. Because, it is submitted, his Honor erred in charging the jury that in order to incur a forfeiture of the bond, the defendant must have realized money on the right which he purchased from the plaintiffs’s testator.
    2. Because, the defendant purchased a right pending in equity ; and the decree of the Court of Equity was virtually the possession of the defendant.
    3. Because, even conceding the construction of the bond as contended for by the defendant, and as charged by the court to be correct, the right purchased had, on the facts of the case, an actual money value at the time of the defendant’s purchase, and its subsequent depreciation was attributable to causes which are chargeable on the defendant, the purchaser of the right.
    4. Because the defendant assumed the character of a purchaser, and acted as such, in place of assuming the character of an agent, and acting as such — -and in this way the money value of the right was depreciated.
    5. Because it is submitted that the item of $3,650, for negroes left to the care and protection of - the executors, was an item chargeable against the balance claimed by the defendant.
    6. Because it is submitted that the principle of the decree in equity, in the case of North vs. Wightman and others, was violated with the assent of the defendant in this, that the debts incurred by the executors after the death of the testator, were charged on the personal estate.
    7. Because, it is submitted, the verdict was against the true legal construction of the bond, and the law and facts of the case.
    
      Thompson <Sp Bailey, for appellants. Petigm, contra.
   Oaria, per

Frost, J.

This case was submitted to the jury on the issue, that the defendant “had not been put in possession of the share of the said Mary Ann Gyles, in the residuary personal estate of the testator, William Wight-* man.” The presiding Judge charged, that if, on the final settlement of the estate of Wightman, there was no estate to divide, the defendant was not liable to pay the price he had agreed to give, according to the condition of the bond. From this charge the defendant has presented several grounds of appeal. It is only necessary for the decision of the case, to notice the two first, which relate to the true construction of the condition of the bond. It may be proper to remark that these grounds, though made in the argument of the case in the circuit court, were not urged on the attention of the presiding Judge. Mere elementary principles of law, in the construction of contracts, are sufficient for the decision oí this case. They are, in general, the same at law and in equity; nor are they varied by the circumstance of the contract being under seal. Whether the instrument be submitted to the judgment of a Common Law Court or a Court of Equity, and whether it be under seal or not, there can be no substantial reason for any difference in the rules, by which the intention of the parties is to be ascertained from the terms they have used. The object of them is to do justice between the parties, by enforcing a performance of their agreement according to the sense in which they mutually understood it at the time it was made. Chitty on contracts, 73. The whole context should be considered in endeavoring to collect the intention of the parties. In the case of a bond with condition, the latter may be read and taken into consideration in order to explain the obligatory part of the instrument — Chitty on contracts 76 — so the recital may be used to qualify the general words of a subsequent distinct clause or stipulation. In Payler vs. Homershaw, 4 Maule & Sel. 423, it was recited in a composition deed that the defendant was indebted to his creditors in the several sums set to their respective names, and that they had agreed to take fifteen shillings in-the pound, and the creditors in consideration of the fifteen shillings paid to them, released the defendant from all manner of actions, debts, claims, &c. which they had against him, or thereafter could or might have, by reason of any thing from the beginning of the world to the date of the release. It was held that the release did not extend to any thing but the respective debts recited, and all actions concerning them, for the general words of the release had reference to the particular recital and were governed by it. And the case of Simons vs. Johnson, 3 Barn. & Ald. 175, is an authority that, in cases of this kind, parol evidence may be received to shew and explain the nature of the matter recited. Matter put only by way of recital in an instrument, may amount to an agreement, when the recital is called into action, to discover and give effect to the meaning of the parties. Thus, in Sampson vs. Easterby, 9 Barn. & Cres. 505, when a lease of an undivided third part of certain mines contained a recital of an agreement made by the lessee with the lessor, for pulling down an old smelting mill, and building another of larger dimensions, and the lease contained a covenant to keep such new mill in repair, and so leave it at the expiration of the term, but did not contain a covenant to build it, it was held that such covenant was to be implied. Lord Tenterdon, delivering the judgment of the court says, “looking at this instrument and considering the nature of the subject matter, we think there is that which amounts to a covenant, which has been correctly stated in the declaration.” The bond in this case, was given in payment of the right and interest which the defendant had purchased of the plaintiff’s testatrix. The obvious and honest intention of the bond would be, that the defendant should pay the price when he had received the subject of his bargain. The first inquiry then, to be determined from the consideration of the condition and recital of the bond is, what did the defendant purchase from the plaintiff’s testatrix 1 Was it merely the right to a distributive share of the residuary estate of the testator, without any reference to the uncertain value of the right when it might be established; or was the sale of the right accompanied with a stipulation or guaranty that it should, when recovered, be attended with substantial pecuniary advantages; on the receipt and enjoyment of which, the defendant’s obligation to pay should accrue 1'

There is no circumstance or expression in the treaty for an execution of the bargain between the plaintiff’s testatrix and the defendant, to indicate that the defendant meant to purchase, or did actually purchase, any thing else than her contingent right, whatever it might be worth ; or to shew that the value or actual enjoyment in possession, of which that right might secure, entered into the consideration of the price which the defendant was to pay for it. The recital in the deed of assignment, which set forth the subject matter of the contract, with the incidents affecting its value, makes no allusion to the amount of the estate of the testator, nor of the debts and legacies chargeable upon it. The uncertainty of the right depending on the existence of adverse claims which might entirely defeat it, is fully set out; and with this contingency alone in view, as affecting the value of the subject of the bargain, the price was stipulated. In the treaty for the purchase, as recited in the bond, it was spoken of as a “supposed share or interestand the particular in which it was regarded as contingent, or a merely “supposed” share', is indicated by the explanation immediately following, “if she should be decreed to be entitled to a share therein.” The condition of the bond is that, “in case the said Mary Ann Gyles shall be decreed and declared by any competent tribunal to be entitled to a distributive share,” then “the defendant do pay to Mary Ann Gyles, the sum of nineteen hundred and ninety pounds.” So far, no ambiguity arises respecting the condition on which the price shall be paid. It is when, and in case, Mary Ann Gyles, shall be decreed to be entitled to a distributive share. This construction is consistent with all the parts of the bond referred to, and also with the deed of assignment from the plaintiff’s testatrix to the defendant, whereby she transfers merely her “share, proportion, right, estate, title and interest,” without any engagement that it should produce any substantial or pecuniary benefit to the defendant. The terms of the condition, briefly stated in connection with each other are, in case the plaintiff’s testatrix be decreed to be entitled to a distributive share, then the defendant do pay the price stipulated, “when he shall receive or be put in possession of said share.” On this last of the terms of the condition is rested the objection of the defendant, that he is not liable to pay his bond until he receives a substantial share in money or property of the residuary estate, and that if, on the final settlement of the estate of Wightman, there is no personal estate to divide, he is not liable to pay the price he had agreed to give. The effect of this construction is, to superadd a covenant to that effect to the deed of assignment, for if the defendant is not bound to pay otherwise, it must be because the right to a distributive share was assigned to him with that stipulation. The word “share,” in this part of the condition, may be construed as synonymous with “right.” The use of these words in the bond will justify this signification. The objection of the defendant must then proceed on the assumption that possession cannot be affirmed of a right as separate from that in which it inheres. In the sense of the condition of the bond, the defendant may, without force, be considered to have been put in possession of the contingent right he .purchased when it wras established and decreed. This construction is not without analogy in the law; a husband is entitled to the choses in action of his wife when they are reduced into his possession, The delivery of a bond or note to the husband, though it only transfers to him a right to recover and receive the amount, is a reduction into possesssion of the chose in action ; so a judgment recovered on the wife’s chose vests the possession in the husband ; and yet in these cases, he has only established a right to demand payment from the debtor. A constructive possession attends the right, and in this sense the defendant may be considered to have been put in possession of the share when the contingent right to it, which he had purchased, was decreed and vested in him. He could not have manual possession of a right. The only possession of which it was capable, was the control, power and benefit which resulted from the decree of the court vesting it in him. The words “if any” according to this construction of the bond, would mean if any share were decreed.

This construction of the condition of the bond, is less exceptionable on account of any supposed violence to the expression of the deed, than that which would determine the liability of the defendant to pay the stipulated price by the substantial receipt of the share. This last condition would be almost illusory — would the' receipt of less than the whole incur the liability — to pay less than the entire share, would not satisfy the words of the condition. The defendant might refuse to receive the last inconsiderable payment on the share. This is an extreme supposition. But the defendant, by the purchase of Mrs. Gyles’s share, was entitled to the whole residuary estate. The executors were accountable only to him, and in such circumstances collusion might be between a purchaser and executors to delay a final settlement of the estate indefinitely. If the defendant be not liable till he has received the entire share, how long might he, with the large amount of bad and doubtful debts, protract the payment of his bond, when it is considered that the defendant, entitled in right of his wife, to the real estate, had in the administration of the personal estate,, a direct interest, adverse to hers, to increase the real estate, at, the expense of the personal. This construction of the bond would be fraught with injustice. It is impossible to suppose that such could have been her understanding of the contract, and it must be adjudged in this case as in Paylor vs. Homershaw, that the words in the condition had reference to the agreement recited, and must be governed by it.

The next enquiry is, was the defendant, put in possession of the share, right or interest which he purchased. From the time that the decree vested the right in him, he has enjoyed the whole power, benefit and control of it, in a manner that secured him the most important advantages, not the less valuable because they cannot be measured in pecuniary value. He was enabled to control the rights and claims of Mrs. Gyles, which were adverse to his, in the administration of the estate. The claim to have the real estate distributed as personal, was prevented, and he was enabled to revive that equity in the decision of the case in Equity. He has quietly received the sum of eighty thousand dollars from the proceeds of the sale of the real estate. The sale of the real and personal estate in Georgia was arranged in respect of time, so as to be made subservient to the value of the real estate. The administration of the Georgia property might have been transferred to the courts of Georgia ; all the uncertainties of a foreign jurisdiction on his rights and claim to the residuary estate, have been avoided. The influence which might have attended the sole proprietorship, in the general administration of the estate, to direct it so as to advance his own interests, has been possessed without interference or contest. He was not delayed, injured or disquieted in the prosecution and enjoyment of his interests; all these benefits accrued to the defendant from the purchase of the right or share of the plaintiffs’s testatrix in the residuary estate, from the time that, by the decree of the court, that right was established. The court is of opinion that by the true construction of the condition, the liability of the defendant to pay the sum stipulated in his bond, accrued when the court decreed that the contingent right, which he had purchased, was vested in Mrs. Gyles, and that by the power and control which from that time the defendant exercised in the right, it has been put in his possession. A new trial is therefore ordered.

Richardson, O’Neall, Butler and Wardlaw, JJ. concurred.  