
    APRIL COURT MDCCXXXVIII.
    Godwins ag’t Kinchen’s Ex’rs
    
      in Canc.
    
    Needier for the Pits.
    This is a joint Devise And so all the Legatees equally interested It differs from the Case of Tucker v Tucker’s Ex’ors (post page) Here are not the Words equally divided and the Children here are described by .their names which they were not in that Case Where the Law determines the Force and Operation of a Devise the Tes’tor’s Intention is not to be enquired into That is only to be recurred to where the Words are ambiguous. Here the Words are very plain to make it a joint Devise and Construction ought to be made upon the Words and the Legal Intent of the Tes’tor as appears by Cox & Quantock 1 Ch. Ca. 238. where it is say’d that when the Intention is secret and not declared the secret Intent must give way to the Legal Intent There is a Difference where the Children are not described by their names and where they are In the first Case they must take collectively as in Tucker and Tucker’s Case but not in the second As to the Proof in the Case the Witnesses vary I admit that parol Proof is sometimes allowed to explain a Tes’tor’s Meaning But that is only where it is to corroborate and strengthen the Legal meaning and Intention not where it is to oust it.
   Matthew Kinchen by his Will after several particular Legacies thus “ and all the rest of my Estate Goods and Chattels whatsoever I give to my Brother W’m Kinchen and my three Sisters Eliza Martha and Patience and James Godwin’s three children James Martha and Matthew ” The Question was what Share of the Residue Godwin’s Children (the Pits.) were intitled to They claiming each a seventh Part and the Defts. insisting they were intitled to no more than a fifth among them.

[65] Godwin’s Children were born of a Sister of the Testator’s who was dead and the Writer of the Will proved that after the Tes’tor had directed several particular Legacies he ask’d him how he would dispose of the Rest of his Estate Upon which he answered I give it to my Brother and Sisters And after some Pause added and James Godwin’s 3 little Children I can’t abide to leave them out put them in for a Share Godwin having four Children then living the Writer ask’d which 3 Upon which the Tes’tor named them (The other Child was so ill his Life was despared of) There were other Witnesses in the Room who heard the Tes’tor say Put Godwin’s Children in for a Share or to that Purpose.

Barradall for the Defts.

Upon the Words of this Will it is plain enough that Godwin’s Children are to be taken Collectively as one Person and were so intended by the Tes’tor But when the Proof and other Circumstances in this Case are considered I think the Point is put beyond all Doubt or Question. It is argued on the other Side that this is a Joint Devise and that therefore all must take equally. The Question here is not whether the Legatees take jointly or severally but what Proportion the Tes’tor intended to each To talk then of a joint Devise may serve to amuse but proves nothing to the Point in Question I own this Argument is quite unintelligible to me. If by being a Joint Devise is meant that the Legatees take as Joint tenants and consequently that the Right of Survivorship will take place between them I deny that it is a Joint Devise in that Sense for there can be no Survivorship among these Legatees as is proved by the Case of Cox & Quantock cited on the other side If God-win’s Children had not been named it is agreed they must have taken collectively as one Person [66] I ask then whether this Devise might not as well be called Joint in that case as it is now. The naming of the Children can certainly make no Difference. It is a very strange and new Doctrine to say that the Tes’tor’s Intention is only to be regarded Where the Words of a Will are doubtful The numberless Cases and perpetual Controversies there are upon the Subject of Devises are sufficient Confutation of such an assertion. Do not our Books tell us that the Intention of a Testator is the Pole star to direct us to find out his Meaning But it is sayed this Intention when secret is not to prevail against the express legal Intent. I do not well apprehend the Force of this Distinction nor remember to have seen it anywhere but in the Book cited on the other side And I must observe that it is only a Remark of the Reporter and the Case itself is quite against his Argument. The Case is Cox & Quantock supra Two were made Executors and the Residue devised to them One died his Adm’r sued for a Moiety of the Surplus and decreed for him for this Reason That the Tes’tor intended an equal benefit to both. This is sayed to be to the Dissatisfaction of the Bar And the Reporter adds his Reason which is so much relied on in this Case. Tho’ all the Authorities since agree with the Resolution in the Case and are against the Reporter’s Opinion vide. Is there any Thing more frequent in our Books than to see the Intention of a Tes’tor prevail against ag’t [sic] the legal Sense and Import of Words Indeed if the Intention be .secret as Mr. Needier States the Proposition I don’t know how it should prevail .An Intention must be more or less apparent or it cannot be known at all But if by a secret Intention is meant an hidden or implied one in Contra-distinction to that which is expressed Then the Distinction is not true nor has any Foundation in Reason or Authority.

I take it then the Testator’s Intention is to be sought after in this Case which if it be not sufficiently evident upon the Face of the Will itself I think is put beyond all Controversie upon the Proof and Circumstances

But I must first clear the Proof from some Objections It is sayed the Witnesses vary There is no Kind of Variance [67] except that one heard more than the other The Writer of the Will who was nearest the Testator and most attentive heard more than they who were at a Distance in the Room It is also objected 'ag’t the Proof in general that it ought not to be regarded at all being to oust the legal Intent And that Parol Proof is never admitted but to corroborate and support the Legal Intent This is another Distinction that I must own I am a stranger to Neither can I agree that there is any express Legal Intent in this Case It must be owned to be in some sort doubtful upon the Words of the Will whether the Tes’tor intended the Pits, should have each of them a Share or only one Share among them And that Parol Proof and Collateral Circumstances are admitted to explain a Tes’tor’s Intent that appears doubtful surely will not be denied. There being so many Cases express in Point 2 Vern. 99.252.506.517.593.648.673. & 675. It is forthis Purpose we offer our Proof and surely it must have its Weight and if it has it can hardly remain a Doubt with any One that the Tes’tor intended no more than one Share to the Pits.

I cannot imagine why the naming the Children by their names should make any Difference as is much insisted upon tho’ without any Reason assigned that I have heard But this was necessary to avoid the Force of the Determination in Tucker & Tucker’s case where indeed the Children are not particularly named But admitting such a Distinction ought to prevail in General Cases Here it can avail nothing because it appears the Occasion of naming them was accidental and because Godwin had four children. The Children of Godwin are not so nearlyrelated as the other Legatees being only a Sister’s Children It is a natural Presumption that men have the greatest affection to their nearest Relations If the Mother of these Children had been alive can it be supposed the Tes’tor would have made so great a Difference as to give three times as much to her as to the rest of his Brothers and Sisters Much less Reason is there to suppose he could intend so much for her children for whom he must be presumed to have a less Degree of Regard and Affection To put them in the Place of the Mother was certainly all he intended and to Consider them as her Representative. It appears too in the Proof these Children were little in his thoughts. His manner of taking Notice of them is a very strong circumstance to prove he did not intend to so great an Advancement and Provision so much beyond what he did for his own Brothers and Sisters.

Decreed that Pits, were intitled only to one Fifth among them by the opinion of Lee, Tayloe, Lightfoot, Custis, Grymes & Byrd Carter & Diggs con. Robinson thought the Surplus ought to be divided into Thirds viz. the Brother to have one Third the Sisters another and Godwin’s Children another. April 1738. 
      
      Vide 2 Will’ms 383. Blackler v. Webb.
     