
    Richmond.
    Crump & als. v. Redd’s adm’r & als.
    
    1849. October Term.
    
    (Absent Cabell, P.)
    
    
      H, by his will, gave to his mother property worth about $300. And in another clause of his will, he says: “It is my desire that my mother will give to my loving sister A, Ably, with her present and future increase.” Ally, with her son, had been previously sold by H to his mother, who had permitted him to keep them in his possession. Held : Though the mother takes the legacy left her, she is not bound to give Ally and her increase to A, nor do they pass to A under the will of H.
    
    So much of this case as is necessary to present the question brought up to and decided by this Court, is as follows :
    
      Henry Macon died in 1809, having made his will, which was duly admitted to probat in the County court of Powhatan. By the first clause of his will he gives to his mother all his stock of every description, and all his household and kitchen furniture. The property thus bequeathed to Mrs. Macon was proved to have been worth about 300 dollars; and it was received by her. The fifth clause of the will is as follows : “ It is my desire that my mother will give my loving sister, Ann Macon, Abby, with her present and future increase.” The slave Abby and her son Watt had been, with five other negroes, sold by Henry Macon to his mother in June 1803 ; and Mrs. Macon living in the county of Cumberland, some twenty-five miles from Henry Macon, who owned the husband of Abby, she had permitted Henry Macon to take Abby and her child to his house, for his convenience. After the death of Henry Macon, Abby and her children had been returned to Mrs. Macon, and she held them as her own until her death in 1824.
    The first clause of Mrs. Macon's will is as follows : “ I lend to my grandson, George T. Crump, during his natural life, the following slaves: Abby, Watt, Tom, Ben son of Abby, Daniel son of Abby, Frederick and Harrison, and their increase from the date of my will; but if my said grandson shall live to have lawful issue of his body, or shall arrive to the age of twenty-one years, then I give the said property to him and his heirs forever. But if he should not live to have lawful issue of his body, or should not arrive to the age of twenty-one years, then I desire that the said slaves at his death, be equally divided between my daughter Rebecca Redd, and the children of my deceased daughter Mary Michaux; that is, one half to go to my daughter Rebecca Redd, and the other half to Mary Michaux’s children.”
    
      George T. Crump was the son of Ann Macon, the same mentioned in the fifth clause of Henry Macon’s will. She married George W. Crump in 1813, and died soon thereafter. Her son George T. survived Mrs. Macon, but died under the age of twenty-one years, without having had issue. After his death the slaves left him by Mrs. Macon were sold by George W. Crump to John R. Palmore, who had been the guardian of George T. Crump, and had held the possession of the slaves.
    In February 1834, Thomas J. Woodson, the administrator of Rebecca Redd, and the children of Mary Michaux, filed their bill against George W. Crump in his own right, and as administrator of his deceased wife Ann, John R. Palmore in his own right, and as administrator of George T. Crump, and others, in which they claimed the slaves aforesaid, and their increase, under the limitation of the will of Mrs. Macon. And they charged that Palm,ore had employed some of the slaves as boatmen on the Appomattox river, in which employment two of them had died of the cholera.
    
      
      Crump and Palmore answered the bill, and claimed that the slave Abby and her increase passed to Ann Macon, under the will of Henry Macon, under which Mrs. Macon had elected to take as a legatee ; and was, therefore, bound by its provision in favour of Ann Macon. And that she having died in the lifetime of her husband, the said slaves became his property.
    Without referring to the intermediate proceedings, it is sufficient to state that the cause came on to be heard in April 1841, when the Chancellor—Robertson—delivered the following opinion:
    “ The question is, Does the will of Henry Macon put his mother to her election ?
    “ Viewing the case without reference to authority, few it is believed, would adopt the opinion that Henry Macon meant any thing more than what his words in their ordinary acceptation import, a mere request. He expresses a ‘desire’ that his mother would ‘ give’ what was her own, and not his, to his sister. Could he have meant that she should forfeit the small legacy left her of 300 dollars, unless she complied with this ‘ desire,’ and gave away, in order to retain it, five or six times its value. I cannot think so.
    “ Mrs. Macon could not have thought so, for she held the slaves as her own till her death, about fifteen years, and then bequeathed them as her own.
    “ They were never claimed, so far as appears, by Ann Macon, who married Dr. George W. Crump in 1813, twelve years before Mrs. Macon’s death, and died shortly after, nor by Dr. Crump (to whom by marriage her right if any accrued,) during the coverture, nor since her death, unless on the ground of title under the will of Henry Macon.
    
    
      “ Upon authority there can exist little difference of opinion concerning the doctrine of election. The doubt is only as to its application in any given case. 2 Rop. Leg.; 1 Swanst. R. 394, note b.
    
      “Nor is it doubted that in general, words of ' desire, recommendation,’ &c. in a will are usually imperative. They are perhaps always so where the testator speaks of his own property, and may be so in cases where he speaks in reference to the property of another, to whom he bequeathed a part of his own. But these words, in , common parlance, signify a mere request, and being ambiguous, the question is, in which sense did the testator use them here ? Prima facie, it is not to be supposed that a testator disposes of that which is not his own, and his intention so to do must, it is said, appear by demonstration plain, or by necessary implication, involving the utter improbability that ho could have meant otherwise ; and those contending for a case of election must shew such manifest plain demonstration. In Crosbie v. Murray, 1 Ves. jr. 555, it is said, there never can be a case of election but upon a presumed intention of the testator. And in Blake v. Bunbury, 1 Ves. jr. 514, that no man ought, under pretence of this rule, to be spelt or conjectured out of his property. Taking these principles as my guide, and looking to the will itself— the relative situation of the parties—the improbability of a contemplated condition imposed by a son on his mother surrendering seven or eight slaves to entitle her to enjoy a legacy of comparatively trifling amount—the ambiguity, to say the least, of terms used in the will, and the long acquiescence of all concerned in the construction seemingly adopted by Mrs. Macon, it appears to me that the testator’s intention, so far from plainly manifest to raise a case of election, was obviously the reverse. And that being the case, I follow the opinion of Judge Pendleton, (1 Wash. 272,) in requiring that adjudged cases (which he remarks are more frequently adduced to disappoint than to illustrate the intention,) must; before they prevail to frustrate that intention, be strong, uniform, and pointedly applicable. Such I have not been able to discover.”
    In pursuance of this opinion, it was decreed that the slaves and their increase, if any, or such of them as were alive, should be surrendered to the plaintiffs by the defendants having possession of them, and that they should be divided one half in value to Woodson, as the administrator of Rebecca Redd, and the other half to the children of Mary Michaux. And it was further ordered that one of the commissioners of the Court should state and report an account of the hires and profits of the slaves since the death of George T. Crump, setting forth by whom such hires and profits had been received ; and that he should also report whether any and which of said slaves had died since the death of said George T. Crump, under what circumstances such death occurred, in whose possession and under whose direction such slave was at the time of his death, and what was his value. From this decree Crump and Palmore applied to this Court for an appeal, which was allowed.
    
      Lyons, for the appellants, and Taylor, and Macfarland & Rhodes, for the appellees, submitted the case on printed arguments.
    
      Lyons.
    
    I deem it necessary to say little more than to refer the Court to some authorities on the question involved in the case, and to remark that while the Chancellor in his opinion admits the law of precatory bequests, but denies its applicability to this case, he virtually revokes the admission, in the effort to sustain his second position; for his whole argument is to prove that the words of request in the will of Henry Macon, do not import a gift; are not sufficiently expressive to create the obligation to elect.
    If this be true, then the conclusion must be, not that the doctrine of precatory bequests is not applicable to this case, but that there is no such doctrine, for the doctrine is, (if it exists at all,) “ that words of recommendation, request, entreaty, wish, or expectation, addressed to a devisee or legatee, will make him a trustee for the person or persons in whose favour such words are used.” 1 Wms. on Ex’ors 54; 1 Jarman on Wills 334; 2 Story’s Equity, p. 328, § 1068; the note to Dillon v. Parker, 1 Swanst. R. 394; Harrison v. Harrison, 2 Gratt. 1, the opinion of Judge Baldwin, and the argument of Mr. Grattan in that case, in which he has collected, if not every case, nearly every case to be found upon the subject.
    That the doctrine exists then, there is no doubt, and ex vi termini, it exists only in cases of implied bequests, as the above definition shews, and the will of Henry Macon falls exactly within the definition, for the words are, “ my wish is that my mother will give my loving sister Ann Macon, Abby with her present and future increase.”
    How then can the doctrine be admitted and not applied to this case ? The words are as strong as words of request well can be, and much stronger than recommendatory words, or words of expectation, and much stronger than most of the adjudged cases which are collected by Jarman, and especially the case of Maylim v. Keighley, 2 Ves. jr. 333. There can be no doubt then, that the words used in the will of Henry Macon, constitute what is termed a precatory bequest, of Abby and her increase; and it only remains to enquire what is the effect of such a bequest upon Mrs. Macon, the devisee to whom they were addressed. The answer is, that they impose upon her the duty of electing whether she will take under the will or not, as she cannot take both under and against it; and if she take under it, then she must comply with the bequest as to Abby. She did in fact elect to take under it; and the title to Abby thereby became complete in Ann Macon. Judge Story says, (2 Eq. Plead, p. 335, § 1075,) “Every case of election, therefore, supposes a plurality of gifts, or rights, with an intention, express or implied, of the party, who has a right to control one, or both, that one should be a substitute for the other; the party who is to take has a choice, but he cannot enjoy the benefits of both.” And in the following section he puts the case of a father devising to another the estate of his son, and then making that son his residuary legatee, as a case requiring the son to elect. This is a conclusive answer to the objections of the Chancellor. As to the ambiguity supposed by the Chancellor to exist, it exists only in imagination.
    There is no ambiguity in the language. It is hardly possible to conceive of ambiguity in words which are required to express only a wish, recommendation, or expectation. The ambiguity intended by all the cases, is as to the subject of the bequest, and the object or person to whom it is given. Here both are clear and certain. Abby and her increase, the subject; Ann Macon, the testator’s sister, the object.
    There is nothing in the Chancellor’s objection as to Dr. Crump’s acquiescence. The relations of the parties would account for that; but if it did not, the conduct of Dr. Crump cannot change the meaning or affect the legal import of the words of the will. They must be interpreted by themselves. The conduct of Dr. Crump, however, can only affect the case as indicating his opinion; now, if he mistook the law, in his opinion, that does not change the law; and moreover, if his opinion be worth any thing, we have it sworn to in his answer against the appellees.
    
      Neither is there any force in the objection that the property devised to Mrs. Macon is not equal to that devised to her daughter.
    Having elected to take the devise in her favour, she is bound to comply with the will, precisely as the son who is made the residuary devisee by a will, which devises his estate to another, is bound, if he elect to take under the will, although the residuum prove to be nothing.
    
      Taylor, and Macfarland & Rhodes.
    
    
      Mr. Lyons treats the case as if the question was, whether a trust was created in favour of Ann Macon in the property bequeathed by the testator to his mother. If the case in fact was, that Henry Macon bequeathed to his mother, Abby and her increase, adding that it was his wish that she would give them to his sister, as an argument to prove that Mrs. Macon would be a trustee of the subject bequeathed, for her daughter, the note of Mr. Lyons might be conclusive. But that is not the case ; and authorities limited in their application to such a case have no bearing on the entirely different one presented by the record. In the actual case the only question is, did the testator intend to annex to the small bequest to his mother, the condition that she should give up slaves, worth sevenfold more than the legacy, to her daughter. Whether she did or not, is a very different enquiry from that which arises when the question is, whether a bequest of a subject, the property of the testator, is, or is not, clogged with a trust in favour of a third person.
    
      Mr. Lyons’ authorities shew these questions to be essentially variant. Thus, Jarman, at page 334, holds any words of recommendation, request, or wish, touching the subject bequeathed, addressed to a legatee, will make him a trustee of the person in whose favour such expressions are used. The author is there discussing the doctrine of trusts. At page 385, he takes up the doctrine of election, and shews by the arrangement of the subject, as well as by explicit language, that he distinguishes the doctrine of election from that of trusts. See page 392.
    This observation applies to Story, to Harrison v. Harrison, and to Maylim v. Keighley, 2 Ves. jr. 333, and disposes of Mr. Lyons' authorities.
    The intention must be clear, decisive, demonstrative, to raise a case for electing. 1 Jarman 392; 2 Story’s Equ. § 1086.
    It cannot be believed, that the testator meant to exact of his mother the surrender of her own valuable property, as the price of enjoying the small legacy. Such a construction would make a legacy a snare, instead of a benefit, as it is understood to be. So far from appearing certain that the testator intended to impose on his mother the necessity of choosing between the loss of her own property and the legacy, the opposite, to say the least, is far more probable. It would have been absurd, not to say irreverent, in the testator to imagine, that he could gain for his sister a valuable property, by leaving to his mother an inconsiderable legacy. If he hoped to influence his mother, it was not by annexing conditions to the small memorial of his affection for her, addressed to her cupidity, but by the infinitely more respectful and rational method of an appeal to her kindness. Doubtless, his expectation was, that his mother would decide for herself when, and how, she would provide for his sister, and whether she would provide for her at all, being so far only influenced by his wishes, as a good mother might respect them. This construction satisfies the language of the will, and is the only one which is rational.
    It certainly cannot be said, that the acceptance of the legacy and the retention of her slaves, are a palpable contravention, by Mrs. Macon, of the disposition which the testator made of his property. And yet that must he affirmed before a case for an election is made out. See authorities relied upon by the Chancellor, and Roadley v. Dixon, 3 Cond. Eng. Ch. R. 356; Birmingham v. Kirwan, 2 Sch. & Lef. 444.
    Then, again, a case for election arises only when there are two inconsistent bequests. Here there are not two such.
    We submit the decree is manifestly right.
    But if it be supposed that Mrs. Macon was bound to elect, it is very plain that she did not, nor did the parties in whose behalf that election was to be made, so understand the will. And by all the authorities, the election may now be made by her representatives. See Brice v. Brice, 12 Cond. Eng. Ch. R. 325.
    
      
       1 Atk. 470, and note (1.)
      We may well employ the language of command in disposing of what is our own, and may annex conditions on which others may enjoy it; but when we speak of what does not belong to us, the command should be positive, and the condition plainly expressed, to justify the supposition that either the one or the other was intended. 2 Rop. L. 389; 6 Dow. P. C. 179 ; 13 Ves. 174; 1 Swanst. 400 (n;) 2 Mad. Ch. 52, 3.
    
   By the Court.

The decree is affirmed.  