
    Richmond.
    Lucas & wife v. Duffield.
    1849. October Term.
    
    (Absent Cabell, P.)
    Every part of a will may be looked to to ascertain, the intention of the testator in a particular devise; and thus to limit the phrase dying without issue, to a dying without issue living at the death of the devisee.
    This was an action of ejectment, brought in the Circuit court of Jefferson county, and afterwards removed to the Circuit court of Loudoun, by John W. Duffield against Edward Lucas and Frances his wife. One count in the declaration claimed three undivided fourth parts of one hundred acres of land; and the other count • claimed the whole. The parties agreed a case lor the decision of the Court.
    Both parties claimed under the will of Gen. William Darke, which was duly admitted to probat in December 1801. The ninth clause of his will is as follows: “ I will and bequeath unto Capt. William Deleyea, three negroes, to wit: David, Tom and Dolly; also one hundred acres of land, including the corner of my land where Joseph Engle lives, to be laid off with a direct line, across from the Shepherdstown road to Melvin's or Hiser's lines, to him and his heirs; but should the said William Deleyea die without legal issue, then the said land to descend to the heirs of my daughter Mary Manning, and to the heirs of my granddaughter Elizabeth Darke."
    
    The name of the testator was signed at the end of the will in the usual form, and then came the attestation clause, with an addition thereto as follows :
    “ Signed, sealed, pronounced and published as his last will and testament in presence of us. It is also to be understood, that in case William Deleyea should die without legal issue, that the negroes herein before bequeathed to him, shall at his death revert to Mary Manning and Elizabeth Darke, in the same manner as the land mentioned.
    
      James Wood,
    
    
      Cyrus Sanders,
    
    
      Philip Engle."
    
    
      William Deleyea died in 1832, never having had any children: and by his will he gave his whole estate to his wife; and she afterwards married Edward Lucas, the defendant. These parties had held possession of the land devised to William Deleyea from the death of the testator Darke, to the time of the trial of this action.
    
      The only heirs of Gen. Darke were his daughter Mary Manning, who was still alive, and Elizabeth Darke his granddaughter, who married Richard Duffield, and died in the lifetime of William Deleyea, leaving the plaintiff her only child.
    Upon the case agreed, the Circuit court gave a judgment for the plaintiff: And the defendants thereupon applied to this Court for a supersedeas, which was awarded.
    
      Robinson, for the appellants.
    The devise to William Deleyea and his heirs, but should he die without legal issue, then over, is a devise which, under the uniform decisions of the Courts, created in him an estate tail; 3 Lomax’s Dig. 197, § 4; and this estate was by the statute converted into a fee simple. Tate v. Tally, 3 Call 355; Hill v. Burrow, Id. 342; Thomason v. Andersons, 4 Leigh 118; Lewis on Perpetuities, 164, 170-2, 174, 52 Law Libr.
    In these cases the limitations over were held invalid, unless there was something in the will which limited the words “ dying without issue” to a life in being and twenty-one years after. It is for the other side, therefore, to point out the words in this will by which the limitation over is so restricted. Lewis on Perpetuities 191. The words “ then the said land to descend to,” can have no greater effect than the words “ then the said lands shall go to,” in Tate v. Tally, or the words “ should descend to,” in Hill v. Burrow. Nor will the word “then,” restrict the limitation over. Lewis on Perp. 250; Campbell v. Harding, 13 Cond. Eng. Ch. R. 90; 8 Bligh’s Pari. Cas. 469.
    There is then nothing in this will which will restrict this limitation over to dying without issue at the time of the death of Deleyea, and the counsel on the other side can only rely on the words to be found, not in the body of the will, but in the attestation clause. As to this clause, it is not signed by the testator, and cannot be regarded as a part of his will as to the land, even if it may be so regarded as to the personal estate. If, however, it is to be taken as a part of the will for all purposes, it cannot impair the force of the previous clause. In Lewis on Perp. p. 287, § 16, it is said, you cannot refer to another clause of the will to restrict the limitation over.
    But if the words found in the attestation clause were in the same clause which devises the land, they would not have the effect to restrict the limitation over of the land. The same clause may restrict the limitation of the personalty which will not affect the limitation of the land. This doctrine is referred to in the case of Campbell v. Harding, 13 Cond. Eng. Ch. R. 90, 97. This is the doctrine of Forth v. Chapman, and was discussed and approved in Hill v. Burrow, 3 Call 342.
    But this is not the case here. The clauses are separate, and the most that can be asked is, that they shall be put into juxtaposition; and then the limitation of the land and that of the slaves, are distinct and different. In Campbell v. Harding, supra, it was held that the limitation was not to be restricted by looking to the limitations found in other clauses, where different forms of expression were used. Here the limitation of the land is not to Mary Manning and Elizabeth Darke, but to the heirs of his daughter and granddaughter. As to the part limited to the heirs of Mary Manning, it is not pretended that can be recovered, as she is alive. And yet the limitation over to the heirs of the granddaughter is in the same words.
    
      Morson, for the appellees.
    The clause of the will of Gen. Darke, contained in the attestation clause, and admitted to probat as a part of the will, is conclusive to shew that the testator did not intend to create an estate tail. Its language is not like that in the cases cited by the counsel for the appellants, but is in contrast to it. The slaves given to this legatee are to revert at his death in the same manner as the land. This clause is not confined to personalty, but speaks also of land. And then the rule that the last clause of a will is the will, applies.
    It is true the books tell us that as the law aforetime was, a gift over of land and personalty, without limitation to the death of the first taker, was too indefinite. But if there is any thing on the face of the will which shews that the limitation over is intended to take effect at the death of the first taker, it is good as an executory devise. 3 Lomax’s Dig. § 13, p. 209, § 14, p. 210.
    The terms of this clause of the will are too clear and too strong to be tortured into an indefinite failure of issue. The words " at his death” leave no room for construction or question. If it was intended that the limitation over should take effect at the first taker’s death, then all the cases cited on the other side shew that the limitation over is good. The case of Jiggetts v. Davis, 1 Leigh 368, shews that if the intention appears on the'face of the will it is sufficient.
    The question, then, is whether the attestation clause is to be taken as a part of the will. We say it is, because, 1st. It is set out in the case agreed as a part of the will. 2d. It is recorded as a part of the will. The will has been admitted to probat generally; and has not been contested within the time limited by the statute ; and it is therefore the will of the testator, both as to lands and personalty. Nalle v. Fenwick, 4 Rand. 585 ; Vaughan v. Green, 1 Leigh 287.
    At this day it must be presumed that all the proofs necessary to constitute this clause a will of lands, were produced before the Court of probat. If the clause was written before the will was signed by the testator, then the signature, though above it, is sufficient to make the whole his will. A signature of a will, whether at the beginning, the end, the side or the middle, if intended by the testator to be his signature of the will, is sufficient. 1 Jarman on Wills 70; Selden v. Coalter, 2 Va. Cas. 553; Waller v. Waller, 1 Gratt. 454. An endorsement on a bond or deed, becomes a part of it if made before the execution of the paper, or even if made after its execution. Shermer v. Beale, 1 Wash. 11; Dandridge v. Harris, Id. 326; Gordon v. Frazier, 2 Id. 130; Stone v. Hansborough, 5 Leigh 422. Here the clause was added certainly before the will was attested ; because it is in the attestation clause. And it was necessarily proved when the will was admitted to probat, as the witnesses were obliged to prove it to prove the whole will.
    It is said that the devise is to the heirs, and that Mary Manning was alive at the death of William Deleyea; and that she had not sued because she was not entitled. We insist that Mary Manning and Elizabeth Darke took an estate to them and their heirs. And for this, we rely upon the clause in the attestation clause of the will. The will is not drawn with technical skill, and must be construed liberally to ascertain the intent of the testator from the whole will.
    It is made a query whether a party entitled to an undivided share of land can recover a part where his count claims the whole. I believe the common practice is to claim the whole in the count; because claiming too much does not hurt: That was the case in Dickinson v. Hoomes, 1 Gratt. 302, where two fourths were claimed and recovered in the Court below, and this Court held the plaintiff was only entitled to one fourth.
    
      Cooke, for the appellees,
    presented a printed argument.
    The words of a devise, by which an estate is given to one and his heirs, but if he die without legal issue, then to another, have a technical meaning, and a common sense, natural meaning.
    
      When they stand alone, without other words to modify them, they are held to have a technical meaning, and to import that they were used by the testator in a technical sense, and to create an estate tail by implication.
    When those words are used and other words are used in another part of the will, but connected with the subject matter of the devise, or, where other words are used with them, from which the Court can extract an intention to limit the dying without issue to the time of the death of the first taker, and the more especially where the testator was inops consilii, the Court will read the will in the common sense, natural, or vulgar meaning, and give effect to the real intention of the testator.
    In support of the above stated principles, I refer to Hodgson v. Ambrose, Douglass’ R. 323, and particularly to Justice Buller’s opinion, p. 327. He says, “It was a long time before I could reconcile myself to the determination in the case of Coulson v. Coulson, but now I am not clear that, even if the question were quite new, I should not be of the same opinion which the Court then entertained. If a testator make use of legal phrases, or technical words only, the Courts are bound to understand them in the legal sense. They have no right nor power to say that the testator did not understand the meaning of the words he has used, or to put a construction on them different from what has been long received, or what is affixed to them by the law. But if a testator use other words, which manifestly indicate what his intention was, and shew to a demonstration that he did not mean what the technical words import, in the sense which the law has imposed upon them, that intention must prevail, notwithstanding he has used such technical words in other parts of the will. Lord Hardwicke truly said, in Bagshaw v. Spencer, ‘ There can be no magic or particular force in certain words more than others; their operation must arise from the sense they carry.’ ”
    
      He goes on to say, “ And I say, that sense can only be found by considering the whole will together. There is no rule better established than that the intention of a testator, expressed in his will, if consistent with the rules of law, shall prevail. That is the first and great rule in the exposition of all wills; and it is a rule to which all others must bend. It says, ‘ If consistent with the rules of law;’ but it must be remembered that those words are applicable only to the nature and operation of the estate or interest devised, and not to the construction of the words. A man cannot, by will, create a perpetuity; he cannot put the freehold in abeyance ; he cannot limit a fee upon a fee ; nor make a chattel descendible to heirs; nor prevent a tenant in tail from suffering a recovery. But the question, whether the intention be consistent with the rules of law or not, can never arise till it is settled what the intention was. This can only be discovered by taking the whole will together,” &c., &c., &c.
    Every word of the above is important and strictly applicable to the case at bar. Let the two clauses or the whole will be read together, and it will be found that the intention was, that William Deleyea dying without legal issue, the negroes .should pass, at his death, in the same manner as the land mentioned. Let the intention of Gen. Darke be first ascertained from the will; and then let the determination follow, “ whether the intention be consistent with the rules of law or not,” as laid down by Justice Butter in the above extract.
    In the case, Kennon v. M'Roberts, 1 Wash. 96, the question was, whether the words, “as touching my temporal estate,” &c., used in the preamble to the will, could be used to supply the place of words of perpetuity in a devise of real estate to the testator’s sons ; the words “ and to their heirs,” or equivalent words, not being used in the devising clauses. I refer to this case as one in which the intention is relied on by the Court. I also refer to it because Judge Pendleton, p. 100, quotes, with approbation, the opinion of Justice Buller in Hodgson v. Ambrose, (before cited,) drawing a distinction between technical meaning and common sense meaning of legal phrases used in a will. The Judge also refers again to Hodgson v. Ambrose, on p. 102.
    In Wyatt v. Sadler's heirs, 1 Munf. 537, in which the same question arose as in Kennon v. M'Roberts, Judge Fleming, in his opinion, p. 547, quotes Justice Buller's same opinion, and copies and adopts a part of it, viz: that there is no magical force in words, &c., and that the intention of the testator must be first ascertained; and that until that is done, the question whether or not it is consistent with the rules of law, cannot arise.
    In Pinbury v. Elkin, 1 P. Wms. 563, the Lord Chancellor draws three distinctions as arising out of the words “ dying without issue.” The suit was respecting personalty, but the distinctions are drawn, as respecting real and personal estate. First, a legal sense ; second, if the party died without ever having had issue, &c.
    Thirdly. “ But by the third sense of a person’s dying without issue, is intended without leaving issue at the time of his death, and in this sense the words shall be taken in the principal case,” &c., &c., &c. And the Judge proceeds, under the last head, to enquire what meaning would be given to the words “ dying without issue,” if put to a gentleman not of the bar, &c., &c.
    In Forth v. Chapman, 1 P. Wms. 663, in the opinion of Lord Parker, p. 666, the distinctions are drawn between the “ legal sense” of the words, and the “ vulgar, common and natural” sense. And Lord Parker proceeds to say: “Besides the testator who is inops consilii, will, under such circumstances, be supposed to speak in the vulgar, common and natural, not in the legal sense.”
    
      In Target v. Gaunt, 1 P. Wms. 432, the same distinctions are drawn between the legal sense, and the vulgar sense of the words, “ dying without issue.”
    In Johnson v. Johnson, 1 Munf. 549, the intention of the testator is sustained, against the legal sense of the words of the will, and Judge Tucker refers, in his opinion, p. 552, to the fact that the testator was inops consilii.
    
    It seems to be clear, then, that the Courts look to the intention as expressed in the whole will, and they en-quire whether that intention be inconsistent with the rules of law. In the case at bar, I think the intention is manifest, that the testator intended that the land should pass in the same manner as the negroes, viz : at the death of William Deleyea, he dying without legal issue. This construction is aided by the fact that Gen. Darke’s will was written inops consilii, which is apparent from a mere reading of it.
    I next come to the case of Robinson v. Robinson, 1 Burr. R. 38.
    This was a case out of chancery, on a will.
    On the 27th July 1723, George Robinson, of Bochym, in the county of Cornwall, Esq., duly made his will: And, after giving his wife one guinea, and his father-in-law one groat, he devised as follows: “I bequeath all my real estate (excepting my estate in the parish of Endellyn, late Mr. Newman’s, and all my presentations in the said county,) to Lancelot Hicks of Plymouth, in the county of Devon, gentleman, for and during the term of his natural life, and no longer: Provided that he alter his name, and take that of Robinson, and live at my house of Bochym. And after his decease, to such son as he shall have, lawfully to be begotten, taking the name of Robinson. And for default of such issue, then I bequeath the same to my cousin (the defendant) William Robinson, rector of Landewedneck, and his heirs forever. ”
    
      
      “ Item. My will and desire is, that he (meaning William R., rector of Landewedneck,) have liberty to present whom he pleases to any vacancy that shall happen in any of my presentations, during his life; and in case any his children shall take or be designed for holy orders, then it is my desire that in case of any vacancy in either of my presentations, that bonds of resignation be taken, to such child or children, if the vacancy happen before he or they attain such orders : And after the same shall be disposed of as aforesaid, then I give the perpetuity of the said presentations, to the said Mr. Lancelot Hicks, in the same manner, and to the same uses, as I have given my estate.”
    
      William Robinson was heir at law of the testator. Lancelot Hicks took the name of Robinson. It is stated that the Judges never give any reasons upon a case, sent out of chancery, for their opinions. The opinion is as follows:
    “ The judgment of this Court, (King’s Bench,) on the 1st December 1756, unanimously certified to the Court of chancery, in the words following :
    “ We are of opinion, that, upon the true construction of the said will of the testator George Robinson, the said Lancelot Hicks must, by necessary implication to effectuate the manifest general intent of the said testator, be construed to take an estate in tail male, he and the heirs of his body taking the name of Robinson: Notwithstanding the express estate devised to the said Lancelot Hicks for his life and no longer.” The opinion is understood in the same manner as the will. The above opinion was confirmed in chancery. And in an appeal to the House of Lords, the opinions of all the Judges was asked. They were unanimous in its favour, and the decree was affirmed.
    We can only arrive at the reasons (not given) of the King’s Bench, by negatives. That Lancelot Hicks did not acquire an estate in fee tail male by the provision that he was to take the name of Robinson, and live at the estate of Bochym, needs no argument.
    The devise, after his decease, to such son as he shall have, does not give it to him. Under the rule in Shelley’s Case, the devise over, after the life estate, must be to the heirs, or heirs of the body, &c., of the life tenant, to create in him an estate in fee, or in fee tail. It must embrace all the heirs—in other words, the life tenant must be the propositus, from whom his heirs must take; as for instance, the sons in succession, if the oldest die in succession, without leaving other heirs, then his younger brothers. In a devise to one for life, and after his death to such son as he may have, without other words to enlarge the devise, the son must take as purchaser; and as there are no words of perpetuity, he must take for life only. As the words, “ such son as he may have,” cannot be enlarged by any words, yet considered, so as to embrace the whole issue of Lancelot Hicks, the rule in Shelley’s Case cannot be applied, and Lancelot Hicks could not, so far as we have gone, acquire an estate tail under the will.
    The next step in the will, and in the argument is, to consider the effect of the words, “and for default of such issue,” &c. Nothing can be drawn from these words to enlarge Lancelot Hicks’ estate. In default of such issue, means, in default of such son ; see Goodright v. Dunham, Doug. R. 264, and King v. Stafford, 7 East. R. 521, and Roy v. Garnett, 2 Wash. 9; and can mean nothing else. If the words had been “ in default of issue,” then the Court might have inferred an intention that William, Robinson (who was the testator’s heir,) should not have the estate until Lancelot Hicks’ whole issue had failed; until there was default of issue of Lancelot Hicks; and the rule in Shelley’s Case would have applied, to enlarge Hicks’ estate for the benefit of his whole issue, that they might take an inheritable estate in the property. (See 1 Equity Ca. Abr. 185, and the same case cited in Allanson v. Clitherow, 1 Ves. sr. R. 24.) All of these different parts of the first clause,, then, taken separately, or taken together, could not enlarge Lancelot Hicks' estate into a fee tail male- But the Court decided, and I think correctly, on the whole will, that the testator intended to give such an estate to Lancelot Hicks and his son, or his (Lancelot Hicks') issue, as that William Robinson should take nothing until default of that issue. This intention, though, is to be gathered from the last clause; for it is said there that he gives “the perpetuity of the said presentations to the said Lancelot Hicks, in the same manner and to the same uses as I have given my estate.” Here, in truth, is the first and only expression of any such intention as to the estate given by the first clause. The presentations to the livings are given, in perpetuity, in the same manner, and to the same uses as the estate. And it is to be observed, that Mr. Burrow took his notes at the bar of the Court, as he say's in his preface to his work, and that the word “ Perpetuity” is printed in capital letters, and the words “in the same manner and to the same uses,” in italics; from which we are to infer, in the absence of reasons given by the Court of King’s Bench, that those words strongly influenced the Court, and that it so said, in giving its oral statement or opinion, from the bench; and that it was so printed, to indicate the principal grounds of the certified opinion. I will add, that it was argued by counsel (inter alia) that those words of perpetuity, “in the same manner” &c. must mean a perpetuity in both, &c.
    In the case of Smith v. Chapman, 1 Hen. & Munf. 240, Judge Roane, in his opinion, refers to the case of Robinson v. Robinson; he closes his remarks on it by saying : “ In that case, also, the ‘ perpetuity’ of his presentations was given to L. H. (subject, &c.) in the same manner and to the same uses as he had given his estate,” thereby explaining (Judge Roane says) the former devise by the latter.
    And that is the true exposition of both wills; the words in Darke’s will, “ that in case William Deleyea die without legal issue, the negroes (before given) shall at his death revert to M. and E. D. in the same manner as the land mentioned,” explain the devise in the former clause, and shew that the testator used the words “die without legal issue” in the common and natural sense, and to mean a dying without issue living at his (Deleyea’s) death. In which view, it is a good executory devise over, after William Deleyea’s death— and as Justice Butter says, (in previous quotation,) the intention being ascertained from the will, there is no rule of law inconsistent with it, as an and it must prevail.
    I will only add one more remark on the case of Robinson v. Robinson. In that case it was necessary to enlarge a life estate into an inheritable estate, and to look into the whole will to effect it. In the case at bar, a fee simple estate was given to William Deleyea, and his heirs, and our only occasion for looking into the whole will is, to ascertain what meaning the testator meant to give to the words following the devise, “ should the said W. D. die without legal issue,” &c. Now, it is clearly shewn, and must be admitted, that those words have two meanings, a legal or technical meaning, and a natural and common sense meaning. Does it not require a greater license, or, 1 should more properly say, a bolder action, on the part of a Court, to enlarge a life estate to an inheritable estate, by inference, or by collating together different parts of a will, than to look into a will in which words are used which unquestionably have two meanings, and to decide in which sense they are used, in order to effectuate the intention ?
    
      If it be considered that the plaintiff is entitled to a judgment on the case agreed, the only question left is, how much of the land is he entitled to ? I say, to the whole. It is to be recollected that the devise is not to Mary Manning and Elizabeth Darke, and their heirs, in which case it would pass in moieties. It is a devise to the heirs of M. M. and E. D.; it is to a class of persons, designated by a description, who are to take in futuro, on the happening of a certain contingency. They are not to take as heirs, for no estate in the 100 acres is given to their ancestors, M. M. and E. D.; they must take, if at all, as purchasers, under the will of William Darke. As purchasers, those who take, must take per capita. If Mrs. Manning had died in the lifetime of William Deleyea, and left five children, there would have been sis, including the lessor of the plaintiff, who would have been entitled, on the happening of the contingency, each of whom would have been entitled to one sixth; and so of any different number of persons answering to the description of the persons designated in the will; in all of whom the estate would have vested, immediately on the death of William Deleyea without issue then living.
    If this view of the case be correct, no person can take, as the heir of Mrs. Manning, for she is living; for, Nemo est hceres viventis; and the lessor of the plaintiff being the only person answering the description of persons named in the will, he must take, and he only; and he must take the whole property, that is, the whole 100 acres. There is no rule of division, by which he can take a part of it. In the case of Taylor v. Biddall, 2 Mod. R. 289, the testator had a sister, who was his heir. She had been married, and had a son, and had been married again, and had a son and daughter of the last marriage.
    The testator devised his estate to his sister A., until her son B. (of the second marriage) came to age of 21 years, and then to B. and his heirs ; and if B. die before age of 21 years, then to the heirs of the body of C., (the father of B.,) and to their heirs, as they attain their respective ages of 21.
    The testator died. B. died before he attained the age of 21, living C., his father.
    The question was, whether the lessor of the plaintiff, who was the son of the first marriage of A., and her heir at law, or the sister of B.. as heir of B., or as heir of the body of C., her father, was entitled.
    In giving his opinion. North, Chief Justice, said that A., the testator’s sister, could not take as his heir, for a term of years was bequeathed to her; that the fee immediately vested in B. her son; that on his death, the defendant, his sister, (of second marriage,) “is his heir, and hath good title : if not as heir at law, she may take by way of executory devise as heir of the body of her father, (who had died,) which, though it could not be whilst he was living, (because nemo est hmres viventis,) yet after his death she was heir of his body, and was then of age, at which time, and not before, she was to take by the will.” In the Chief Justice’s opinion, he states this case: “ If an estate be given to A. for life, the remainder to the right heirs of B., this is a contingent remainder, and shall be governed by the rules of the law; for if B. die during the life of A., it is good; but if he survive, it is void, because nobody can be his right heir whilst he is living.” The Judge refers to Co. Litt. 378, and 3 Co. 20.
    So, in the case at bar, the devise to William Deleyea was a fee, but on his dying without issue living at his death, the estate in him ceased; and as Mrs. Manning could not have any heir whilst she lived, the estate vested in that one who was designated in the will, and who filled the required character, of heir of Elizabeth Darke.
    
    
      I think, clearly, that the lessor of the plaintiff has good title to the whole tract of 100 acres.
    Robinson, for the appellants.
    It is conceded by both the counsel for the appellee, that the devise to William Deleyea is a fee tail; and that the limitation over is void, unless the first devise is changed by the attestation clause. It is difficult to comprehend how the title to land can be affected by a clause bequeathing only the slaves. If this action, instead of being an action to recover the land, was for the recovery of the slaves, the words in this attestation clause which are now relied on, would be rejected as insensible and unmeaning; or if they were held to have any effect, they would make the limitation of the slaves like that of the land, and therefore void.
    It is not intended to deny that the whole will, including the attestation clause, was duly admitted to probat. At that time there was no statute requiring wills of personalty to be signed. Hence, even if the objection had been made that this clause was not signed by the testator, the Court must have admitted it to probat; for it purports to dispose of negroes, and negroes only. But as a bequest of slaves, the clause is insensible and unmeaning. It directs that the slaves shall revert to Mary Manning and Elizabeth Darke, in the same manner as the land. But the limitation of the land is to their heirs. The legacy by the last clause would lapse on their death in the lifetime of the testator. It was only by their death that the devise could take effect. The land could only be recovered by the heirs, the slaves only by legatees or personal representatives. 1 Jarman on Wills 420, 421, 422. But if the slaves passed in the same manner as the land, they would go to the heirs and could not be recovered by the personal representatives.
    
      But this is a suit for the land under a limitation admitted to be void; and which is to be made good by words, which in a suit for the slaves, would be rejected as insensible and unmeaning. If then, these words must be rejected in a suit for the slaves, it is still more clear that they must be rejected in a suit for the land. The devise of the land in the will is technically correct, and is not to be controlled by a subsequent clause referring inaccurately to the devise. 1 Jarm,. on Wills 425. The case is still stronger, because the devise is in a will signed by the testator, and the subsequent clause by which it is to be restricted is not signed.
    The cases referred to, in which endorsements on deeds and bonds have been held to be a part thereof, are not applicable, because in such cases, the endorsement on a deed or bond is not required to be signed. A devise of land must be signed by the testator; and it must be manifest on the face of the instrument, that the name of the testator appearing thereon was intended as his signature. Waller v. Waller, 1 Gratt. 454. Therefore no state of facts could have been proved, which would have made the clause relied on by the appellees a good devise of lands, because upon the face of the paper,’ it appears that the name signed was intended to verify what went before it, and not what came after it.
    It is said that the probat concludes this question. But that only extends to prove the paper to be what it purports to be ; and not what is the effect of the paper. Street v. Street, 11 Leigh 510. This case shews that the Court will presume proof to make the will valid, if it was possible to make it valid by proof; but if no extraneous proof could be allowed to do this, the existence of such proof cannot be presumed.
    Nor is the case altered by the case agreed. As the paper was properly admitted to probat for what it was, a bequest of slaves, it is properly described as the testator’s will in. the case agreed. In Todd v. Baylor, 4 Leigh 498, though the certificate of the justices was full to the fact that the wife had acknowledged the deed, yet there being in fact no signature, the Court held it was not the deed of the wife.
    If the clause relied on by the appellee had been signed by the testator, the words in that clause upon which his claim rests, cannot aid the limitation over. Whilst I say that the slaves could only be recovered by rejecting the words “in the same manner as the land,” I go further and .say, that if these words are not rejected, they would prevent the recovery of the slaves.
    This case has been argued, as if these words were in the same clause with the devise of the land, and made a part of it. If the devise could be so read, which it cannot be, it is by no means clear that it would not be an estate tail. Lewis on Perp. 234. ‘But the clauses cannot be read as if they were one. All that can be done, is to place them in juxtaposition. Then, so far from these words changing the limitation of the land, it would change the limitation of .the slaves, and make that void. Lewis on Perp. 239.
    It is said that both the devise of the land and the bequest of the slaves must be read as if .to Mary Manning and Elizabeth Darke. This would be not to construe, but to make a will for the testator. He has said the land shall go to their heirs, and that the slaves shall go to themselves : the persons cannot be changed. And this aids us to construe the words “ in the same manner as the landand goes to shew, that as the land could only be taken on the death of the first taker without issue, so the slaves could only be taken on the happening of the same event.
    
      Mr. Cooke has cited the case of Robinson v. Robinson, 1 Burr. R. 38. Compare that case with the doctrine laid down in Lewis on Perp. 239, and it will be seen, that whilst the Courts will not generally refer to words in a subsequent clause of a will to affect a devise in a previous clause, yet to make an estate tail, it was done in that case. In conclusion, I would refer to what is said by the Chancellor in Campbell v. Harding, 13 Cond. Eng. Ch. R. 100.
   By the Court.

The judgment is affirmed.  