
    *Hamletts and Others v. Hamlett’s Ex’ors &c.
    May, 1841,
    Richmond.
    Will — Construction-Case at Bar. — Testator bequeaths residuum of his estate, after his wife’s death or marriage, to be equally divided among James, Mary,.Patsey, Nancy and Narcissa [who were testator’s children], the children of his son George, the children of his daughter Elizabeth, the children of his son Bedford deceased, and the obildren of his daughter Obedience; his five children legatees were all married, and had, in all, 31 children living at his death; his son Bedford left 3 children, and his son George and daughters Elizabeth and Obedience were married, and these four had, in all, 18 children living at testator’s death; and the last three had 5 children born after his death and during his widow’s life; Held, by circuit superior court, and affirmed by this court.
    1. Same — Same—Same—After-Born Children. — That the children of George, Elizabeth and Obedience, born after testator’s death and during widow’s life, as well as those in being at testator’s death, are entitled to shares.
    2. Same — Same—Same—Same.—That such of the grandchildren as were in being at testator’s death, took vested and transmissible interests, liable however to be diminished by the birth of other grandchildren, and the after-born grandchildren as soon as they came in being took likewise vested and transmissible interests.
    3. Same — Same—Same—Taking Per Capita or Per Stirpes. — That the grandchildren took per stripes and not per capita; so that each of the testator's children legatees took one ninth, and each family of his grandchildren legatees took one ninth to he subdivided among them respectively.
    James Hamlett, the elder, late of Charlotte, who died in 1819, by his will, first devised and bequeathed as follows: “My desire is, that my beloved wife Jane shall enjoy uninterrupted possession of my mansion house and plantation, with such part of my personal estate as she shall think proper for her support, and that she shall be at liberty to lend any part thereof to such of my children as she shall think proper, but if she shall lend any part to any of them, the part so loaned should at her decease be returned, in order to make fair and equal division as I may hereafter direct: but if my wife shall marry, my desire is, that she shall no longer reside on *the plantation where she now lives, or have possession of any part of my land in Virginia, but shall remove to the plantation whereon she formerly resided in Person county, North Carolina, which she shall enjoy instead of my estate in Virginia, with the whole of the personal estate and slaves thereon, except two named Dick and Anne.” He then devised to his son James Hamlett a part of the land (particularly described) on which he resided (the same before devised to his widow), and the residue thereof to his two grandsons Thomas and James Hamlett (they were sons of his son Bedford Hamlett deceased) ; that is, he devised the remainder in fee expectant on the estate for life or widowhood therein before devised to his wife, to his son James and grandsons Thomas and James Hamlett, respectively. He then devised to his son George Hamlett a parcel of land on which he (George) was then living; and to his grandsons Drury and Samuel Major (they were sons of his daughter Obedience) all his (the testator’s) land in Halifax. He bequeathed to his daughter Narcissa Jeffress four slaves by name, one horse, six cows and six sheep, and to his son George 300 dollars. And, lastly, he added — “My desire is, that after the decease of my wife, the whole of my estate, except the part herein before disposed of, may be divided in manner and form following, viz. equally among James Hamlett, Mary Jeffress, Patsey Wilson, Nancy Jeffress, Narcissa Jeffress, the children of my son George Hamlett and Lucy his wife, the children of my daughter Elizabeth Averett, the children of my son Bedford Hamlett deceased, and the children of my daughter Obedience.” The testator’s son James, named executor in the will, took probat thereof in the county court of Charlotte on the 4th November 1819.
    By deed, dated the 19th November 1819, between Jane Hamlett, the testator’s widow, and James Hamlett, his son and executor, Thomas Jeffress, James Wilson, *Richard Jeffress and Coleman Jef-fress, the husbands of his daughters Mary, Patsey, Nancy and Narcissa, legatees in the will named, — the widow Jane released all the estate and interest devised and bequeathed to her by her husband’s will, in the testator’s mansion house and plantation and in his personal property in Virginia, and they released, conveyed, and covenanted to secure to her all the land in Person county North Carolina (wherein she held a life estate before her marriage with the testator), all the slaves thereon, fifteen in number, all the crop of that year made on the plantation, and all the household and kitchen furniture there (for the same estate and in the same manner as the property was held by her before her marriage with the testator), and sundry other chattels, which were then in Charlotte, Virginia.
    In April 1835, while the testator’s widow was yet living, a bill in chancery was exhibited by all the children and grandchildren legatees of the testator except his son James, against James as colegatee and executor ; setting forth the provisions of the testator’s will, and particularly the residuary clause (which was set out in haec verba) and the deed of the 19th November 1819 between the testator’s widow arid James Hamlett the executor and others; and praying a settlement of the executor’s accounts of administration, and a decree for a division, to be presently made, on the testator’s residuary estate among the legatees, according to his will. And James Hamlett put in an answer to the bill, in his own right as legatee and as executor, professing his readiness to settle his administration accounts, and to have a division presently made of the residuary estate.
    Two questions were presented by the pleadings : 1. Whether only such of the children of the testator’s son George and his wife Lucy, and of his daughters Elizabeth and Obedience, as were in being at the time of the testator’s death, were entitled to come in as legatees of *the residuary estate, or all the children of that son and those daughters, as well those born after the testator’s death and during the life of his widow, as those who were in esse at the time of his death? And 2. Whether, in the division of the subject among the testator’s children and his grandchildren, the grandchildren respectively should take per stirpes, or all the children and grandchildren equally per capita?
    The court ordered accounts to be taken, by a commissioner, of the executor’s administration, and of the rents and profits, of the testator’s mansion house and plantation, and of the profits of his slaves and other personal estate in Virginia, accrued since the deed of the 19th November 1819-between the testator’s widow and James Hamlett his executor and others: that the commissioner should enquire and report, whether the agreement contained in that deed was beneficial to the infant legatees concerned: that he should enquire and report, what was the present age of Lucy the wife of the testator’s son George Hamlett; and how many children the testator’s son James Hamlett, and his daughters Mary Jeffress, Patsey Wilson, Nancy Jeffress and Narcissa Jeffress, respectively, had at the testator’s death, and (low many they each had now: and that he should present a scheme for the division in three views : 1. Dividing the fund among the residuary legatees per stirpes; 2. dividing it among them per capita, regardingas legatees only such of the children as were born at the time of the testator’s death ; and 3. dividing it among all the children and grandchildren of the testator who were parties to the suit; that is, the testator’s five children and his grandchildren by his other two sons and two daughters, as well those who had been born since the testator’s death as those who were then in esse.
    It appeared by the commissioner’s report —1. That the testator’s son James Hamlett had four children living at the testator’s death: that his daughter Mary, wife *of Thomas Jeffress, had seven children, all born before the testator’s death: that his daughter Patsey, wife of James Wilson, had twelve .children, nine of whom were born before his death : that his daughter Nancy, wife of Richard Jef-fress, had six children, five born before his death, and one since born: and that the testator’s daughter Narcissa, wife of Coleman Jeffress, had seven children, all born before the testator’s death. So that the testator’s children who were residuary legatees, each and all had children, and all together thirty-two children, and two of his daughters were of that age that they, as well as the son James, might and would probably have • more issue. 2. That the testator’s son George had by his wife Lucy, seven children, four of whom were born before the testator’s death, and three since born-, and that Lucy, the wife, was now fifty-six years old and her youngest child was born in 1823, and therefore, probably, past child-bearing: that his daughter Elizabeth, wife of William Averett, had seven children all born before the testator’s death : that his son Bedford, who died before the testator, left three children living at the testator’s death: and that his daughter Obedience had been twice married, first to William Major, and then to James Eaulk-ner, and that she had eight children of both marriages, three born before and five after the testator’s death. So that, of the testator’s grandchildren who were made residuary legatees, there were 'in all eighteen living at his death, and five since born; and two at least of his children, to whose children he bequeathed shares, might be expected to have more issue.
    Thus it appeared, 1. that if the fund was to be divided among the testator’s legatees, children and grandchildren, per stirpes, it would be divided into nine parts, and each of his five children would take one ninth, and each of the four sets of grandchildren would take1 one ninth, to be subdivided among them respectively. 2. That if the fund was to be divided among the testator’s *five children, and his eighteen- grandchildren, ■ who were born before his death, per capita,- it would be divided into twenty-three parts, and each of the children and grandchildren would take one twenty-third part. And 3. that if it was to be divided among the testator’s five children and' his twenty-six grandchildren born before and since his death, per capita, then it would be divided into thirty-one parts, and each of- the children and grandchildren would take one such part.
    The fund in hand at-the time of this report was 14,305 dollars 87 cents: of which, upon the first principle, each of the testator’s five children would get 1589 dollars 31 cents, and each of the four sets of grandchildren the same sum to be subdivided among them respectively. Upon the second principle, the share quoted to each of the testator’s five children and each of his eighteen grandchildren born before his death, was 621 dollars 90 cents. And upon the third principle, the share quoted to each of the testator’s five children and twenty-six grandchildren born before and since his death, was 421 dollars 41 cents.
    The commissioner also reported, that the agreement contained in the deed of the 19th November 1819, between the testator’s widow and James Hamlett the executor and others, was beneficial to the infant parties concerned.
    Upon a hearing of the cause on the report of the commissioner shewing all the matters above stated, the court declared, that all the grandchildren, whether born before or after the testator’s death, who should, at the time for the division of the fund (namely, at the death of the widow), come within any one of the classes described in the will, would be entitled to a share of the fund: that such of the grandchildren as were in esse at the death of the testator took vested and transmissible interest; such interests being liable, however, to be diminished by the birth of other grandchildren; and that *the after-born children, so soon as' they came in esse, took likewise vested and transmissible interests. That, notwithstanding the cases of Blackler v. Webb, 2 P. Wms. 383; Butler v. Stratton, 3 Bro. C. C. 367, and Crow v. Crow, 1 Leigh 74, upon the intention of this testator, inferred from his intention to make a provision for his whole family, and the inconsiderable part of his estate which his own children would get in a division per capita, the division ought, in this case, tobe per stirpes; a view strengthened by the fact that the testator’s five children who were themselves to take as legatees, had children at the time of his death, and indeed large families. And that a division of the' fund might be presently -made, seeing that, in the ordinary course of nature, no other grandchildren entitled to a share of the fund, could hereafter come in esse. Therefore, the court, after ordering the commissioner’s former report to be reformed in some particulars, directed him to ascertain the exact amount of the fund, and to report a division of the same, per stirpes; that is, giving one part to each of the testator’s children legatees in the will, and one part to each set of grandchildren legatees, to be subdivided among them, respectively.
    The commissioner reported that the whole fund was now 14,619 dollars 9 cents; which was divided into nine shares of 1624 dollars 34 cents each: and one share was assigned to the testator’s son James Hamlett; one to Richard Jeffress and Nancy his wife; one to Coleman Jeffress and Narcissa his wife; one to Mary Jeffress, whose husband died pending the suit; and one to James Wilson administrator of his wife Patsey who was now dead: one to the children of Elizabeth Averett, subdivided into eight parts; one to the children of Obedience Faulkner, subdivided into eight parts; one to the children of Bedford Hamlett, subdivided into three parts; and one to the children of George Hamlett, subdivided into seven parts. *After the interlocutory decree was made, several depositions were taken by the plaintiffs, which were returned with the commissioner’s last report. The evidence they contained was quite vague; but it might be inferred from the depositions, collated with each other—
    1. That the testator had in his lifetime advanced to his son James, about 100 acres of land, worth about 460 dollars, and that the land devised by his will to that son, was about 500 acres worth about 5000 dollars : that he had, in his lifetime, advanced to his son George, about 200 acres of land (the same devised to him in his will) which George yet held, worth about 2000 dollars: that the land devised to his two grandsons, Thomas and James Hamlett, was about 450 acres, worth about 2800 dollars: and that the land devised to his two grandsons, Drury and Samuel Major, was worth about 1450 dollars.
    2. That, at the time of the testator’s death, Thomas Jeffress husband of his daughter Mary, James Wilson husband of his daughter Patsey, and Richard Jeffress husband of his daughter Haney, were in good circumstances, and Coleman Jeffress husband of his daughter Narcissa, was in narrow but not needy circumstances: that the testator’s son Bedford had died insolvent: that his son George, and William Averett husband of his daughter Elizabeth, were both in embarrassed circumstances and very improvident; and that James Faulkner husband of his daughter Obedience, was reputed to be much embarrassed by an unfortunate speculation, but was an industrious and provident man.
    Upon the final hearing, the court, adhering to the opinion expressed in the interlocutory decree, decreed a division of the subject per stirpes, among the testator’s five children and four sets of grandchildren including those born since, as well as those born before, his death.
    The grandchildren applied by petition to this court for an appeal from the decree; which was allowed.
    *Robinson, for the appellants.
    The decree is directly contrary to the authority of Blackler v. Webb, and a long series of adjudications. In Blackler v. Webb, the testator bequeathed the surplus of his estate equally to his son James and to his son Peter’s children, to his daughter Traverse, and to his daughter Webb’s children, and to his daughter Mann. At the time of making the will, his son Peter was dead, leaving several children; his daughter Webb was living, but her husband was in low circumstances, having been twice a bankrupt. It is hardly possible that two cases should have actually occurred, more perfectly alike in all" material circumstances, than that case and this. It was argued there, as it may be argued here, that it was not likely the testator intended his own children to take no greater share than each of his grandchildren, and that the construction should be according to the statute of distributions. To which it was answered, that such part of the surplus as is given to the grandchildren must be the same, and have the same construction, as if the testator had particularized each grandchild by name, as John, Thomas &c. when there could be no question but that the grandchildren must have taken per capita and not per stirpes; and as to the statute of distributions, as the testator’s daughter Webb was living, her children could take nothing by representation within that statute. Lord Chancellor King at first seemed inclinable that the grandchildren should take per stirpes only; but at length he decreed, that the children and grandchildren (being fourteen in number) should each take per capita, as if all the grandchildren had been named by their respective names; and he said, that the grandchildren could not take according to the statute of distributions, or in allusion thereto, foras-much as the testator’s daughter Webb was living, and her children could not represent her; and to determine that the grandchildren should take per stirpes would be going too much out of the *will, and contrary to the words, when the meaning of the testator might be according to his words, and that meaning a reasonable and sensible one. The decisions of the English courts, from 1716 to 1822, have followed the principle of Blackler v. Webb, with remarkable uniformity and consistency. Northey v. Strange, (decided in 1716) 1 P. Wms. 340; Richardson v. Spraag, (1718) Id. 433; Warner v. Hone, (1718) Prec. in Chan. 491; Thomas v. Hole, (1728) Ca. Temp. Talb. 251; Lugar v. Har-man, (1786) 1 Cox 250; Eccard v. Brooke, (1790) 2 Cox 213; Butler 'v. Stratton, (1791) 3 Bro. C. C. 367; Longmore v. Broom, (1802) 7 Ves. 124; Horridge v. Ferguson, (1822) Jac. 583; 4 Cond. Eng. Ch. Rep. 273. The case last cited is very remarkable: there, the testatrix bequeathed the residue of her property to such of the children of Thomas, Mary, William, Elizabeth and James Henley, as should be born in lawful wedlock and living at her death, or the issue of such of them as should be married, in equal shares and proportions. At the death of the testatrix, there were two children of Thomas living; he had had a'son who had died leaving five children, and a daughter who had died leaving two: these were all living at the death of the testatrix. Mary Henley had one child, William two, and Elizabeth one, all of whom were living at the death of the testatrix, but they had no children. James Henley died before the testatrix, unmarried. It was held, that the word or (in the bequest to the children of the five persons named, or their issue) should be construed to mean and, and the children and grandchildren were let in to take equal shares.
    In Virginia, a like case; Tucker &c. v. Tucker’s ex’ors, was before the old general court in 1740, and is reported in Barradall’s MS. reports, p. 94. The testator bequeathed: “I give all my ready money and outstanding debts, to be equally divided between Robert Tucker, John Tucker, John Coolie, Robert Cooke, and *Jacob Walker’s children; and in case Mr. Walker’s children die before they come of age, that their parts go to the survivor of their children.” Walker’s children were four in number: their mother who was dead, was related to the testator in equal degree with the Tuckers and Cookes; they were the testator’s nephews, and she was his niece. It was insisted, on behalf of Walker’s children, that the word equally could not be satisfied unless each legatee had an equal share, and there was no difference between naming, and not naming, the children in the will. The general court, after two arguments, decreed that Walker’s children took, collectively, a fifth part among them. But this decree was reversed upon appeal. Barradall, in a note, says that the reversal, as he was informed, was chiefly by reason of the word parts [their parts, in the plural] in the limitation over to the survivor of Walker’s children. But the decision in Blackler v. Webb, though it was not cited in the general court, had been made some years before, and in the authority of that case, no doubt, the true reason of the reversal is to be found. And, lately, the principle of Blackler v. Webb has been followed, and established by this court, in Crow v. Crow, 1 Leigh 74.
    The principle is correctly stated in 2 Powell on Devises, p. 331. That where a devise or bequest is made to a person described as standing in a certain relation to the testator, and to the children of another person standing in the same relation, as to my brother A. and the children of my brother B. the legatees take per capita and not per stirpes: A. only takes a share equal to one of the children of B. though it may be conjectured that the testator had a distribution according ' to the statute of distributions in his mind. The court will find, on examination of the adjudged cases, that the principle has been applied to cases presenting every variety of ^Circumstances; that it has been equally applied, whether the persons whose children were made legatees, were dead or alive, or some dead and some living ; and that it has never, in any instance, been controlled'by a regard to the number of children which the testator’s children, brothers &c. made legatees by description of classes, had at the time, and the number of the other legatees made so by name. And the reason on which the principle is founded, is, that all the persons to whom the bequest extends, are considered as entitled to take in like manner as if they were named; and all are considered as taking directly in their own right, and none by way of representation.
    This principle of construction has been so long established, and so uniformly applied, in so many cases, and those so variously circumstanced, that it has become a canon of property and ought not now to be disturbed or departed from. It was wisely established at first; but even if was not, 1 ‘it is better the law should be certain than that every judge should speculate upon it;” so said Lord Eldon in Sheddon v. Goodrich, 8 Ves. 497, in reference to a much more questionable doctrine than this; and many other judges have affirmed the same maxim of judicial wisdom.
    Macfarland and Leigh for the appellees.
    The principle of construction adopted in the case of Blackler v. Webb and the other cases cited for the appellants, is not a positive rule of law, a canon of property to be arbitrarily applied, whether it conform with testator’s intention or not, like some of the rules of construction that have been applied in cases of executory devise, and implied estates tail, where a legal construction and effect have been given to a testator’s language, though confessedly different from his actual intention. This case, like most others that arise on wills, presents a question of testamentary intention: and this court has instructed us, that the intention of the testator is the cardinal rule, *the polar star to guide us in the construction of wills; that the intention is to be carried into effect, provided the dispositions intended do not conflict with the law; and that the intention is to be collected from the circumstances of the testator, his estate and family, the situation of the legatees, their relation to and con-nexion with him, as well as from the words of the will. See the opinions of Pendleton, P., in Shelton’s ex’ors v. Shelton, 1 Wash. 556, and in Kennon v. M’Roberts & ux., Id. 102.
    
      
      Devise to “Children” — After-Born Children. — See the principal case cited in 4 Va. Law Reg. 624; 29 Am. & Eng. Enc. Law (1st Ed.) 411, 412.
    
    
      
      wills — Construction—Taking Per Capita or Per Stirpes, — The principal case is cited with approval in Hoxton v. Griffith, 18 Gratt. 578; Senger v. Senger, 81 Va. 707; Ross v. Kiger, 43 W. Va. 403, 26 S. E. Rep. 196. See also, Crow v. Crow, 1 Leigh 74; Walker v. Webster, 95 Va. 377, 28 S. E. Rep. 570; and foot-notes to Brewer v. Opie, 1 Call 212; McMaster v. McMaster, 10 Gratt. 275.
    
   In the first clause of this testator’s will, he authorizes his wife to lend any part of the property before given her (in effect, his whole estate in Virginia) to such of his children as she should think proper, but if she should lend any part to any of them, the part so loaned should at her decease be returned, in order to make fair and equal division as he should thereafter direct. It was his children, then, for whom he meant to provide; it was among his children that he meant afterwards to direct a fair and equal division.

Then, consider the situation of his family and the relation of the several legatees to him. Of his own five children to whom he bequeathed shares of his residuary estate, his son James had four children living at his death; his daughter Mary, seven; his daughter Patsey, nine; his daughter Nancy, five; and his daughter Narcissa, seven : these five children had, then, thirty-two children ; and they all might, and some probably would (as two of them in fact did) have more issue. Of his children to whose children he bequeathed shares of the same residuary estate, his son Bedford was dead leaving three children ; his son George had four; his daughter Elizabeth, seven : and his daughter Obedience, three; in all eighteen children living at the testator’s death; and George, Elizabeth and Obedience, might and probably would have (as two of them in fact had) more issue born during his widow’s life, who would be letn in *for shares of the same fund. “The intention which the court is asked to impute to the testator, is, that he meant to give to each of his own five children, to aid them in the maintenance of their thirty-two children already in existence, and all the children they should afterwards have, exactly the same portion of his estate, as he gave to each of his eighteen grandchildren, then born, and to each which should be after-wards born, of his other four children. To impute such an intention to the testator, were to violate all probability, and all sense of parental justice by which the testator may fairly be presumed to have been actuated in disposing of his property among his offspring. The estate to be divided was only some 14,600 dollars; and dividing it per capita, there will be thirty-one parts or shares; of which each of the testator’s five children legatees (for themselves and their thirty-two children, and still increasing families) will take one share, and each of his twenty-six grandchildren legatees will take one share. A division per capita, professing to rest on the principle of equality, will perpetrate the grossest and most cruel inequality. If the law imperiously commands this, the law', though common sense revolt at it, must be obeyed. But, happily, there is no such arbitrary rule of law, applicable alike to all testamentary dispositions of the kind ; applicable as well where it W'orks plainly contrary to, as where it may conform with, the testator’s apparent intention.

The cases cited for the appellants, it must be confessed, seem very strong. But in Blackler v. Webb, it does not appear, how many children the testator’s son James and his daughters Mrs. Traverse and Mrs. Mann, respectively, had, or whether they had any, or how many his daughter Mrs. Webb had, or his son Peter left. Por aught that appears in the reported state of the case, Peter might have left some three or four, Mrs. Webb might have had two, and James, Mrs. Traverse and Mrs. Mann none. Suppose it had appeared, that James, *Mrs. Traverse and Mrs. Mann, had, living at the testator’s death, numerous families, some twenty children in all, and that Peter had left, and Mrs. Webb had, some twelve between them; the case would then have been like this; and the like question would have arisen, which arises here, whether it was possible to imagine, that the testator, without any assignable motive, intended to give to his own three children, to enable them to rear and support their numerous families, exactly the same portion which he gave to each of his grandchildren by his son Peter and daughter Mrs. Webb?

In Horridge v. Ferguson, the bequest was to and among ‘‘such of the children of Thomas, Mary, William, Elizabeth and James Henley as should be born in wedlock and living at the decease of the testatrix, or the issue of such of them as should be married.” If the bequest had been to the issue of such of them as should be dead, the court would have had no doubt, that the issue of such as were dead should take per stirpes, instead of the deceased parents. But the court thought that it was too much to interpret “the issue of such as were married,” to mean “the issue of such as were dead:” that, according to the strict grammatical meaning of the words, the issue were to take instead of their parents, in some event not expressed; which would render the bequest uncertain. Yet the testatrix intended that the issue were to take f and to let them in, it was necessary to construe the word or to mean and. If the word or was taken in its literal sense, such of the children as were married and living at the testatrix’s death, would have been cut out entirely. It was necessary, either to understand the word or to mean and, or the word married to mean dead: and the court preferred the former alternative, and then it was clear the issue came in per capita. The court said, “by understanding the word or grammatically, you cannot make sense of the passage without inserting something else; *but by using that latitude of construction which the court has been in the habit of resorting to, and converting it into and, the whole is made consistent, and all the members of the family are let in.” Besides, it seems, the testatrix there was not providing for her own family, and was under no moral duty to have regard to the situation of the legatees in dispensing her bounty among them: she was not providing for Thomas, Marj', William, Elizabeth and James Henley, or for any of them, but for the children and other offspring of them all.

All the English cases that have been cited, are open to similar commentaries. And in respect to them all, it will be found, on examination, that the courts have by no means designed to lay down any fixed inflexible rule of construction, but have adopted that construction, which, upon the circumstances, appeared most just.

In Tucker &c. v. Tucker’s ex’ors, the bequest was of a fund “to be equally divided between Robert Tucker, John Tucker, John Cooke, Robert Cooke” [nephews of the testator] “and Walker’s children” [children of his niece] ; “and in case Walker’s children should die before they came of age, then their parts to go to the survivor.” The general court’ decreed, that Walker’s four children should take one fifth part per stirpem. “But note this,” says Barradall, “the decree was reversed upon an appeal, and chiefly, as I have been informed, by reason of the word parts in the limitation over to the survivor of Walker’s children.” Mr. Robinson thinks, that the reason for the reversal is to be found in the authority of Blackler v. Webb. It may have been so: but Barradall was likely to be well informed : he himself argued the cause in the general court; and Mr. Jefferson says, he was one “of the most eminent of the ^counsel at that bar. ” And the reason on which Barradall was informed the reversal was chiefly grounded, seems a natural and sufficient one: the language of the limitation over shewed that Walker’s children were not to take collectively one part, but “parts” (in the plural), and if more than one, then certainly four parts.

Crow v. Crow is certainly not a decisive authority for the appellants. The testator there bequeathed: “The balance of my slaves shall be equally divided among my children, to wit, the heirs of William Crow, namely, William, Robert, Patsey, Nancy, Henry, Ennis and John (heirs of William Crow deceased), Thomas, Moses, and John Crow, and the children of my deceased daughter Massey Jones, and the children of my deceased daughter Sarah Crane; but the children of my daughter Jones are to take only such part as their mother would take if she was alive, that is to say, a child’s part, and in like manner the children of my daughter Crane are to take only such part as their mother would take if she was alive, that is to say, a child’s part.” The question was, whether the seven children of the testator’s deceased son William, should take collectively one part among them, or take per capita seven out of twelve parts? The county court and the chancellor held, that they should take per stirpes; this court that they should take per capita; Green, J., dissenting. The case of Bladder v. Webb, and other English cases of the same class, were indeed cited, and the general' principle they proceeded upon, stated and approved. Yet this court did not rest its decree, merely or mainly, upon the authority of those cases, but rather on the particular provisions of the will before them: namely, that the testator mentioned the seven children of his son William by name, as his own Children ; and then (which was the most influential consideration) he expressly provided, that the children of his daughter Mrs. Jones, and those of his daughter Mrs. Crane, respectively, should take per stirpes, but did not provide, that the children of his son William should likewise take per stirpes; whence the court inferred the intention, that William’s children should take per capita. And it was on this peculiar circumstance in that case, that the decision was mainly founded. There is nothing like it in our case.

It is to be remarked, that in all the cases which have been referred to, the bequest was to take effect immediately on the testator’s death, when all the legatees named, or described by classes, would be ascertained, and the aliquot parts they were each to take, would of course be also ascertained. But in this case, the division of the fund was postponed till the death or marriage of the testator’s widow: his five children named legatees were known, and they were to have their aliquot parts, without regard to their numerous families, or any future increase thereof; but his four children’s children who were to take as legatees, could not be known till the widow’s death. Upon the principle of a division per capita, the aliquot parts of the testator’s own children would be liable to continual diminution, and .the.aggregate shares of each of three sets of. the grandchildren legatees, would be continually increasing. The testator could not have intended to give his five children such small portions of his estate, and even those small portions subject to eventual and probably great diminution.

Evidence was adduced, by the appellants (it seems), of the value of the lands which had been advanced by the testator, in his lifetime, to his sons James and George, and of the value of the lands devised to his son James, to his two grandsons D. and S. Major, and to his two grandsons Thomas and James Hamlett. If the object for which this evidence was adduced, was, to shew a *reason why the testator should make a greater provision for the several sets of grandchildren legatees, than for the children legatees, it is nothing to the purpose. Eor though land was advanced and land devised to the son James, no land was advanced or devised to the daughters Mary, Patsey, Nancy and Narcissa, who are certainly to take an equal share with James, of the residuary estate, whatever that share may be; land had been advanced to George, yet George’s children born and to be born before the widow’s death, were to have a share or shares of the residuum; and lands were devised to two sons of the testator’s son Bedford, and to two sons of his daughter Obedience, and yet they are made legatees of the residuum, along with the other child of Bedford and the other children of Obedience.

Evidence, too, was adduced by the appellants to shew that the testator’s five children legatees, were all in easy circumstances, whereas, of the children whose children were made legatees, Bedford had died insolvent; George was living, and was needy and improvident; the husband of his daughter Averett was also needy and improvident ; and the husband of his daughter Obedience, though industrious and provident, was supposed to be embarrassed: and the purpose of this evidence was, apparently, to assign a motive which might have induced the testator to make a more liberal provision for the four needy branches of his family, than for the five who were well to do in the world; to give to his children legatees a pittance (a pittance, having regard to their numerous and probably increasing families) and to give the same bounty to each of the children of his other four children, which, as to them, was comparatively a large provision. The circumstance may indeed explain the reason why the testator bequeathed portions of his estate to five of his children, and other portions to his grandchildren instead of their parents; but it shews no motive for making a more liberal provision for the latter than for the former. He gave portions of his estate to *his five children, because they would probably improve his bounty to-the advantage of their families: he gave other portions to the children of his other children, because, if he gave them to their parents, they might probably be wasted by those that were both needy and improvident, and applied to the payment of the debts of those who were embarrassed ; so that neither they nor their families would enjoy his bounty. If all his children, or their husbands, had been equally provident and equally unembarrassed, he would have given his estate in equal portions to his nine children; if all had been equally improvident and wasteful, or equally embarrassed with debt, he would have given his estate to the children of them all. A consideration of the situation of the several branches of the testator’s family, affords a strong argument that the decree of the circuit superior court conforms with the testator’s real intention, and is right.

The President announced the unanimous opinion of the court, that the decree should be affirmed, but the reasons of the opinion were not stated.

Decree affirmed. 
      
      The counsel went Into a critical examination of the whole class of cases ; hut it is not necessary to report their comments on them all. — Note in Original Edition.
     
      
      See preface to Jeiferson’s reports. That small volume contains Barradall’s reports of cases which depended on our own colonial laws, hut not oi the cases which depended on questions of law or equity common to both the mother country and the colony. Therefore, Mr. Jefferson has not included the case of Tucker &c. v. Tucker’s ex’ors. — Note in Original Edition.
     
      
      The decree was pronounced at a very late day of the term. The president told the reporter, that a written opinion had been prepared, which was mislaid. It has never been found. Considering- the interesting question involved, its doubtfulness, and the weight and apparent application of the authority of Blackler v. Webb and the other cases of that class, it is much tobe regretted, that the reasons of the decision of the court are lost to the profession. The reporter learned, in conversation with the judges, that, upon the particular circumstances, they thought this testator intended a division of the subject among the legatees per stirpes, and that there was nothing in the authorities which required the court to disregard the intention in this case more than in any other cases of testamentary disposition. He inferred, that the court saw reasons to distinguish this case from those of Blackler v. Webb, Crow v. Crow, &c. not to deny, or shake, the authority of those adjudications. — Note in Original Edition.
     