
    Andrew Giles & Mary his Wife & Mary Mallicote Plts.
    
    S C. Jeff. 52.
    Morey Mallicote Deft.
    In Detinue upon a Special Verdict. The Pits. Father Thomas Mallicote by his Will devised “ to his son John Quashey a Negro Man to his son Thomas the Child his Negro Woman Betty then went with and Tomboy a negro Man ” and gives Slaves to his other Children and declares his Will “ That his Wife should have the Work of his Sons Negroes till they came of age And if either of his Children should die without Heirs of their body lawfully begotten Then that their Part should be equally divided between the Survivors” And gives Negro Betty to his Wife during Life and after her Death to be divided with her Increase among his children. The Testator’s Sons John and Thomas are dead and would not be 21 if now living The Slaves in Question are Quashey and Tomboy Specifically devised to John and Thomas and Quashey a Boy the Child Betty went with at the making of the Will but not born till after the Testator’s Death The Pit. Mary the Wife of Giles is the Testator’s Wife named in the Will (tho’ not so found in the Verdict) And the Plaintif Mallicote is one of the Testator’s Daughters The Deft, is the Testator’s eldest Son and Heir and Heir to his Brothers John and Thomas and is more than 21 years old.
   There are but 2 Questions in this Case upon the merits

1. First. Whether the Testator’s Wife has a Right to keep the Slaves devised to John and Thomas till the time they would have been 21. Or whether her Interest determined at their Deaths

2. Whether the Devise to Thomas of the Child Betty went with be good tho’ the Child was not born till after the Testator’s Death And let these Points be determined either Way there will remain a Necessity to make a 3. question Viz. Whether the Pits, can join in this Action.

The Case as to the first Point is briefly this A man devises Slaves to his Children and Wills that his Wife should have the Work of them till his Children come of age The Children die before they come of age The Question is whether the Wife’s Interest determines by their Death or Whether she shall keep the Slaves till the Time the Children would have been 21. if they had lived

It will be granted I presume that this Devise to the Wife must be taken redendo singula singulis viz. that she is to have the Work of the Slaves till the Children respectively come of Age And that each Child as it comes of Age is intitled to the Slaves given to it Cro. Ja. 259. Aylor & Chep. And it will be further granted I believe that in Construction this [69] Devise must be taken as if the Limitation was to the Wife first till the Children come of Age and afterwards to them Indeed otherwise the Devise to the Wife cannot be supported.

Now in Devises of this sort there is a very great Difference where they are made for Paiment of Debts to maintain Children or upon any other Trust and where they are merely for the Benefit of the Devisee For if a Man devised Lands to his Executors till his Son comes of Age for Payment of his Debts or Performance of his Will and then to his Son There tho’ the Son die before he come of Age the Interest of the Executors does not determine but they shall hold the Land till such Time as he would have been of Age if he had lived Boraston’s Case 3 Co. 19. Di. 210. a. Cro. Eliz. 252. 1 Ch. Ca. 113. But if a Man devises Land to his Wife till his Son comes of Age and then to the Son in Fee And the Devise to the Wife is not expressed to be for Performance of his Will Education of his Children or for any other particular Purpose but is purely for her own Benefit In that Case if the Son die before 21. the Wife’s Interest is determined and the Land shall go to the Heir of the Son presently Hill. 1713. between Mansfield and Dugard decreed Chr. Ca. Abr. 195. 4. The Reason of the Difference in these 2. Cases is plain In Strictness of Law the Estate determines in both Cases For if a Man makes a Lease or grants Land to another till his Son comes of Age the Lease or Grant is subject to the Contingency of the Son’s living till that time If he dies before the Lease or Grant determines Boraston’s Case 3 Co. 19. b. Agreed per totam curiam 6 Co. 35. b. Plo. 273. And this of Necessity for Grants being taken strictly according to the Words, Unless the Estate was to determine by the Death of the Son It must continue forever for the Son will never be of Age Now the great Difference between a Devise and a Grant is this that in a Devise a more liberal Construction is allowed And it is not so much the Form of Words as the Intention of the Testator that governs the Construction But yet where there is no apparent Intention to the Contrary a Devise as well as a Grant must be construed according to the Legal Sense and Operation of the Words 1 Sal. 238. Aumble & Jones And in such a Case no greater Interest will pass by a Devise than would pass by the like Words in a Grant The Resolution in Boraston’s Case (supa) is founded upon the Intention of the Testator collected from the Nature and Mhnner of the Devise The Case was “ A Devise to Executors, till H. B. should accomplish his full age of 21 years and the mean Profits to be employed by the Executors towards Performance of the Will ” It was say’d it should be presumed that the Testator had computed that the Profits of his Estate by the Time his Son would be of Age would pay his Debts and therefore tho’ the Son died before The Executors should hold the Land till such Time as he would have been of Age because otherwise the Testator’s Intention in providing for the Payment of his Debts must be frustrated his Debts unpaid and his Will unperformed which are certainly very strong and cogent Reasons to induce such a Construction of the Will And so where the Devise is for any other particular Purpose as [70] the maintainance of Children or the like it may be reasonable to make such a Construction But where the Devise is general no Trust to be discharged but purely for the Benefit of the Devisee There is no equitable Ground or Motive to induce a more ample and liberal Construction than according to the legal Import and Operation of the Words Nor any Intention of the Testator appearing to carry the Devise further than the Words in their legal Sense will carry it And this I take to be the Reason in Mansfied & Dugard’s Case {Supra) And upon which Distinction Boraston’s Case and that are reconciled

That Case was thus “ A Man devised Lands to his Wife till his Son should attain his Age of 21. and then to his Son and his Heirs The Son died at 13. and tho’ the Wife was Ex’x yet it not being devised for Paiment of Debts nor any Cred’rs or Want of Assets appearing the Lord Chancellor (Harcourt) held that the Wife’s Estate determined by the Death of the Son and upon a Rehearing continued of the same Opinion.”

I will beg Leave to read Boraston’s Case and This Now the Devise before us is exactly the same as this last only here the Slaves are devised first to the Children and then to the Wife But in Construction as I have already observed the Devise to the Wife must be taken first The Devise in this Case is generally to the Wife No Debts to be paid or any other Trust discharged but meerly for her Benefit And she is also made Executrix No two Cases can be more parallel in all their Circumstances and I hope my Lord Chancellor’s Opinion will be taken for good Law especially when the • Reason of the pifference between a Devise of this sort and a Devise for Paiment of Debts (as Boraston’s Case and the other above cited are) is so clearly accounted for.

I "shall now proceed to consider the 2. Point Whether the Devise of a Negro Child in the Mother’s Belly be good tho’ the Child is not born till after the Testator’s Death.

The Objection I suppose will be that the Thing given was not in esse in Reum natura at the Time of the Devise And so being no more than a Possibility is not devisable

I shall agree that Possibilities which are remote are not devisable but I take a Difference between a near and a remote Possibility (Jacob’s Dictionary verbo Possibility) It was never yet questioned but that the Profits of Land might be devised for a Time And in this very Will the Work i.e. the Profits of the Work of the Slaves are devised to the Wife for a Time Now the Profits are not in esse they are but a Possibility So the Profits that shall be made of a certain Commerce may be devised and I can see no Difference between Devises of this Sort and the Devise of a negro Child that shall be born especially when the Child is actually [71] in ventre sa mere for then it has a Sort of Existence anciently it was Murder to procure the Destruction of such Foetus and the Law takes notice of a Child in ventre sa mere for a Devise to such is good and tho’ it be but a Possibility it must be allowed to be a very near Possibility and must happen in a short Time For my part I can see no good Reason Why such a Devise should not be good It clashes with no Rule of Law that I know of nor is attended with any Inconvenience Why then should not the Testator’s will be performed But I would not be understood as if I contended for carrying Devises of this Sort any further than where the Child is actually in the Mother’s Belly It would be very incovenient to allow a Devise of the 2. 3. or 4. Child that shall be born for Reasons that are very obvious. Tho’ even such a Devise as that is allowed by the Civil Law for a Man may devise Quidquid illa ancilla perperisset 2 Dom. 159. S. 18. And it is clear from the same Author that the Civil Law admits of Devises of Things that are not in esse as the Fruits of a Farm the Profits of a Commerce and the like Now it may be worth considering that in England Legacies are properly recoverable in the Spiritual Court where the Civil Law is the Rule of Decision Tho’ the Chancery for many years has exercised a concurrent Jurisdiction with them But then the Chancery has some Regard to the Determinations of the Civil Law in Matters concerning Legacies as that noted Distinction between a Legacy given to one at the age of 21. and where Legacy is made paiable at 21. which is allowed to have a very slender Foundation in Reason but because the Distinction is kept up in the Civil Law the Chancery observes it too that the Subject may have the Same Measure of Justice in which Court soever he sues. Ch. Ca. Abr. 295. 2. in Notis.

And I humbly hope that this Court will pay the same Regard to the Decisions of the Civil Law in Matters concerning Legacies at least so far as it is not inconsistent with the Spirit of our Laws nor attended with any Inconvenience And then it is mighty clear that the Devise of a Child in Ventre sa mere is good But here as I sayed it will be necessary to stop and not to suffer Devises of this sort to be carried any further because of the Inconvenience that will follow

I shall now speak to the 3. Point Whether the Pits, can join in this Action for this must of Necessity be made a Question let the merits be determined either way because the Pits, have several and distinct Rights If the Merits are determined ag’t the Deft. Then the Pits. Giles and his Wife have a Right to the Slaves in Question and the Pit. Mallicote has no Pretence of Right But if the Merits are with the Deft. Then the Pits. Giles and his Wife have no Right but the Pit. Mallicote does pretend some Right in that Case.

Upon the very State of the Question the absurdity appears of joining the Pits, in this Action for they cannot have both a Right to recover but if one has a Right the other has not

This is really a new kind of [72] Policy and the first Time I believe it was ever pratised It is having two Strings to the Bow If we can’t recover by one Title we will by the other But I doubt the Consequence will be that they will recover by neither

There is no Instance in the Law that I know of where two persons having distinct and several Interests can join in an Action But it is a com’on Exception in Arrest of Judgment where two join to object that their Interests are several as Di. 320. a. Stil 203. 2 Lev. 24. 3 Lev. 362. But if there was no Authority the Reason of the Thing speaks plain enough If Judgment be given for the Pits, it must be that the Pits, recover But will the Court give such a Judgment when one of the Pits, has no Right to maintain the Action Who shall have the Damages in this Case not he I hope that has no Right to recover them Yet if any Judgment is given for the Pits, they will both have an equal Right to the Damages Besides who can tell for whom the Jury intended these Damages Perhaps they might be intended for the Person who has no Right to maintain the Action And is there any Reason then that the Deft, should pay. The Damages here were certainly designed for Giles and his Wife but if they have no Right to maintain the Action Ought they to have any Damages I need say no more in so plain a Point especially as it is no new Objection in this Court Even in the Case of an Ejectment where one of the Lessors had no Title Upon such an Objection the Court would give no Judgment It has been twice so adjudged as I have been told in the Cases Meachen & others ag’t Burwell and Dewberry & Others ag’t Smith.

But if the Pits. Giles and his Wife have no Right as I hope it is clear they have not the Pit. Mallicote has really no Right at all Or if she has it is not such a Right as will maintain an Action of Detinue The Title she sets up is under the Remainder limited by the Testator’s Will to the surviving Children In case of the Death of either without Heir of their Body Now this Rem’r I conceive is void being limited upon too remote a Contingency viz. a Dying without Issue which may not happen in 1000 years And no limitation of a Chattel can be upon a Contingency unless the Contingency is to happen within the Compás of a Life or Lives in Being or within a reasonable number of years as 20. or 30. 1 Sal. 229. But this Point was settled in the Case of Slaughter & Whitlock argued last Court (posted) where Slaves were devised to one and if he died without Issue Rem’r over It was adjudged the Rem’r over was void and the absolute Property vested in the first Devisee so that the Deft, as Heir at Law to his Brother is solely intitled to the Slaves in Question.

Or admitting this Pit. has a Right it is no more than as Tenant in com’on with her other Brothers and Sisters [73] The Rem’r is limited to be equally divided between the Survivors Now surely no Lawyer will say that one Tenant in Com’on of a Chattel can maintain an Action of Detinue ag’t the other Tenant in Com’on where there are only two much less where there are more than two as in this Case Every one of them has the same Right that the other has and by the same Rule that the Pit. Mallicote can maintain this Action ag’t the Deft, if she recovers another of the surviving brothers or Sisters may recover of her and the Deft, again may recover of that Brother or Sister or even of the Pit. herself, and so there would be no end to suits and Controversies. This sufficiently shews the Reason of the Law why one Tenant in com’on shall not have an Action at Law ag’t the other 1 Inst. 200. a. The Remedy must be in Equity Indeed that Remedy is pointed out by the Act of 1727. c. 11. S. 18.

This Case was compromised and so no Judgment given.  