
    Templeman, Executor of Steptoe, v. Steptoe and Others.
    Monday, October 8, 1810.
    1. Decree — Interlocutory—What Constitutes. — A decree, dismissing so much of a bill as claims one of two separate subjects in controversy, and as' to the other, determining also the rights of the parties, but directing an account to be taken, is not final in any respect, between the parties retained in Court, and their legal representatives; but subject to revision and alteration in every part, at any time before a final decree; without the necessity of a bill of review.
    2, Same — Same—Case at Bar. — Quiere, in such case, whether any subsequent decree could affect the rights of bona fide purchasers of property as to which the bill was dismissed ?
    3, Statute of Descents — Construction—Rea! Estate.-)-— Construction of the 5th, 6th, and 7th sections of the act “to reduce into one the several acts directing the course of descents.” Where an infant, haying title to a real estate of inheritance derived by purchase or descent immediately from the father, dies without issue, and with no brother or sister, or descendant of either; the father being dead, but the mother living; the right of inheritance is not in abeyance, but goes in parcenary to the brothers and sisters of the father, or their lineal descendants: and, vice versa, such estate being derived immediately from the mother; and she being dead, but the father living; it goes in parcenary to her brothers and sisters, or their lineal descendants.
    4. Same — Same—Personalty,  — The law was the same as to personal estate, between the 1st of October, 1793. and the 22d of January, 1802.
    This was a suit originally brought in the late High Court of Chancery by James 340 Steptoe and others, relations *(on the part of the father) of Edward Steptoe, an infant, (who died intestate, unmarried, and without issue, on the 24th of May, 1794,) against Elizabeth Steptoe, his mother, and William Steptoe, his paternal uncle; executrix and executor of George Steptoe, his father, for an account and division of certain property, real and personal, of which he the said Edward Steptoe died seised and possessed, as his absolute estate, derived immediately from his father. The great questions in dispute were, 1st. The same with that decided in Tomlinson v. IHlliard, 3 Call, 120, and ante, p. 183, viz. whether Elizabeth Steptoe, the mother, was excluded from succeeding- to such personal as well as real estate; and, 2dly. If she was excluded, whether the plaintiffs and the defendant William Steptoe were, entitled to take the said real and personal estate ; there being no brother or sister of the infant, nor any descendant of either. The defendant, Elizabeth Steptoe, in her answer, observed, that “if she had a right to her son’s estate, some of her near connections might be benefited by itbut did not mention who they were ; and nothing farther appears in the record to shew the names or degrees of consanguinity of her relations.
    The plaintiffs were James Steptoe, (a brother, ox the whole blood, to George Step-toe, the father,) and the descendants of four sisters, of the half blood, to the said George Steptoe. The defendant, William Steptoe, was also a brother of the whole blood.
    The fades in the case were generally agreed by the parties ; and, on the 17th of March, 1797, the cause came on to be heard; when the Court, “being of opinion that the plaintiffs were not entitled to any part of the slaves and personal estate” in question, “adjudged, ordered, and decreed, that the-bill, as to the part thereof which claimed the said slaves and personal estate, and demanded an account of the administration thereof, he dismissed ; but the Court was of opinion that, by the 5th, 6th, 7th, and 14th sections of the act to reduce into one the several acts directing the course of descents, the defendant Elizabeth was excluded from succession to the rca.l estate;” and 341 that the same descended *to the plaintiffs and the defendant, William Step-toe, in certain proportions specified in the decree. Commissioners were therefore appointed to state accounts of the said real estate, and of the profits thereof since the death of the said Edward Steptoe; to allot the. same, according to the said proportions, (subject to the defendant Eliza belh’s right of dower,) and to report the said accounts and allotments to the Court.
    After ibis, (the late High Court of Chancery having been divided by the act of January 23, 1802) a bill was exhibited to the Superior Court of Chancery for the Williamsburg District, on behalf of the same plaintiffs and others omitted in the former bill, and of the widow and children of the former defendant, William Steptoe, (who now were plaintiffs,) setting forth the former proceedings in the original suit, “which by this bill was sought to be revived,” and stating that “before any further proceedings were had in the said cause, or upon the said interlocutory decree, the said Elizabeth Steptoe and William Steptoe had both died, (the said Elizabeth between the 16th of April and 13th of Eebruary, in the year 1802, and the said William in April, 1803,) whereby the said suit and all proceedings thereon became abated ;” that Samuel Templeman was executor of Elizabeth Steptoe, and, as such, had possessed himself of all the real and personal estate of which Edward Steptoe died seised and possessed; and that William Steptoe had died intestate. The plaintiffs had been advised that, “so long as a decree remains interlocutory it is amendable by the judge who pronounced it; and that the decree above mentioned was amendable by the present judge, to whom all the powers respecting it, which that judge had, were transferred by legislative authority. They had also been advised that, according to the true exposition of the acts of Assembly severally entitled, “An act to reduce into one the several acts directing the course of descents,” and “An act reducing into one the several acts concerning wills, the distribution of intestates’ estates, and the duty of executors and administrators,” “the same were in opposition to that part of 342 the said decree which tended to *deprive them of the surplus of the slaves and personal estate late of Edward Steptoe aforesaid, deceased, which exceeded the funeral expenses, the debts and all other just expenses chargeable on the said estate.” They therefore prayed “the benefit of all the proceedings in the original suit, except the said interlocutory decree, which ought to be set aside, partly for error apparent on the face of it, and partly because the execution of certain parts of it had become impossible;” that the said Samuel Templeman, “being in possession of all the books of accounts of the said Elizabeth Steptoe, should render an account of her administration ox the estate of George Steptoe, and of her receipts and expenditures out ox the estate of her infant son Edward Steptoe, derived to him from the said George, together with the receipts and expenditures of the said Samuel out of the said estates, since they came into his hands ; and the amount and particulars of which they severally consist; and that a writ of subpoena, to revive and answer, be directed to the said Samuel Templeman, executor as aforesaid,” &c.
    To so much of this hill as claimed the slaves and other personal estate, the defendant pleaded, in bar, the decree of March 17th, 1797, which, as to those subjects, he contended was final; alleging that he “was proceeding to execute the provisions contained in the will of his testatrix, when he was arrested by a, notice of the complainants’ claim, very unexpectedly ; for, from the length of time which had elapsed since the said final decree, he had thought that the complainants, perceiving the weakness of their title, had acquiesced in the decision, and no longer insisted on their right to the said slaves and personal estate: since that period this defendant had hired out the slaves whereof his testatrix was seised at the time of her death," and was ready to give an account of the same, and of their hires, if the Court should so decree.” As to the other matters, he answered, and said that the Commissioners had assigned “to the said Elizabeth Steptoe her dower in the real estate of inheritance whereof Edward Steptoe, her infant son, 343 was seised at the *time of his death, and to which she became entitled at the death of her husband George Steptoe, but had not proceeded to state an account of all the said real estate, or to allot the same to the parties mentioned in the decree, agreeably to the proportions therein established ; because the parties entitled to the said real estate inheritance were most of them infants, and had no representatives known to the Commissioners ; and because other difficulties afterwards occurred, (such as the death some of the Commissioners,) neither did the said Commissioners settle and adjust an account (as they were directed in the said decree) of the profits of the real estate since the death of the said Edward Steptoe, because, upon investigation, they found that no profits accrued therefrom ; that, after the allotment of her dower, the said Elizabeth Steptoe had nothing to do with the residue of the said real estate, but it remained subject to the disposal of the parties entitled thereto ; and that the defendant had never interfered with, nor received any profits of, the real estate of which Edward Steptoe died seised.”
    The plaintiffs filed a special replication to the plea of the defendant; in which they deny that the decree of March, 1797, was final in any respect; especially because “it could not have been signed and enrolled agreeably to the language formerly spoken in Courts of Equity, and did not authorize the clerk of that Court to enter all the pleadings in the suit and other matters relating thereto, together, in a book to be kept for that purpose, according to the act of Assembly, in that case made and provided, entitled “An act reducing into one the several acts concerning the High Court of Chancery.’.’ i ■ i
    On the 8th of November, 1805, “the cause came on to be heard on the bill, supplementary bill, the answer of Elizabeth Steptoe and William Steptoe, in their life-times, the plea and answer of the present defendant, the replication thereto, the exhibits, and was argued by counsel; on consideration whereof, the Court overruled the said plea, and was of opinion that all the real and personal 344 estates of Edward *Steptoe, which came to him from, or through his father George Steptoe, became divisible among his relations on the part of his father; his mother, though then alive, and her relations on her part, being entitled to no share or proportion thereof. It further appearing that the said infant, Edward Steptoe, at the time of his death, left two uncles of the full blood, and the descendants of four aunts of the half blood, on the part of his father George Step.toe, deceased,” (plaintiffs in this suit,) the Court was of opinion, and decreed, “that the real estate, the slaves and all the other personal estate whereof the said Edward Steptoe died seised or possessed, in possession, reversion or remainder, where-unto he derived title from or through his father George Steptoe aforesaid, as well as the rents, issues, and profits thereof since his death, be divided, by Commissioners, into eight equal parts; that two such parts, or one fourth of the whole, be by them allotted to the said James Steptoe ; other two eighths, or one fourth, to the family of William Steptoe, deceased ;” and one eighth to the descendants of each of the four aunts aforesaid ; according to certain proportions, specified in the decree. It was also ordered, that the defendant settle an account, before the said Commissioners, of the said Elizabeth Steptoe’s administration of George Steptoe’s estate, and of her receipts and expenditures of the estate of her infant son Edward, derived to him from his father ; and also an account of his own receipts and expenditures of the said Edward Steptoe’s said estate.” And, on the prayer of the defendant, an appeal was granted him from the said decree. *
    Wickham, for the appellant.
    The case of Tomlinson v. Dilliard, precludes my making a point I intended ; that the Chancellor’s decree of March, 1797, was right, so far 345 as it respected the personal estate. I will substitute another; that, during .the life of Edward Steptoe’s mother, the right of inheritance was in abeyance, 
    
    But, whether right or wrong, that decree was final as to the personal estate. The claim of partition of the real estate was entirely distinct from that for division of the personal. The widow, as executrix, had nothing to do with the land. I do not deny that several distinct claims may be included in one bill; but, where such is the case, if the Court dismiss the bill as to one of those claims, the parties are out of Court as to that. The decree was therefore final; and,of course, the bill now in question is a bill of review.
    But, being a bill of review, it was not filed within the time the law requires. Though when it was filed is not precisely stated in the record, it sufficiently appears to have been more than five years after the date of the decree; and this length of time, by analogy to the law relating to writs of supersedeas,  is a bar to a bill of review. The rules in Courts of Equity concerning limitations of suits are framed by analogy to those which govern the Courts of common law. In England the time within which a writ of error may be brought is, by an act of parliament, twenty years. The Court of Chancery, therefore, will not permit a bill of review to be brought after twenty years ; which are to be computed not from the time of the enrolment, but from the time of pronouncing the decree. Applying the same principle to this country, the limitation here, on bills of review, should be five years ; that being the limitation upon writs of error or supersedeas, by our act of Assembly. If, in this case, there were infant plaintiffs, not barred by the limitation, others had certainly no excuse : and, if their rights are joint, (which, in my opinion, they are not,) the disability of those who are of full age, to prosecute the bill, might subject the infants to the same disability.__
    
      *Warden, contra, relied on the cases of Grymes v. Pendleton,  M’Callv. Peachy, Eairfax v. Muse’s Ex’rs, and The President and Professors of William and Mary College v. Hodgson and others,  as cases in which it was repeatedly decided, that a decree is not final when any thing remains to be done. In this case the Chancellor might, on the final argument, (even without any supplemental bill,) have set the decree aside as to the personal estate. The bill could therefore be considered only as a bill of revivor, rendered necessary by Mrs. Steptoe’s death. But, if it was a bill of review, there is no law of limitation upon that subject in this country. The S2d section of the District Court law relates only to writs of supersedeas or error to 'judgments of inferior Courts ; between which, and bills of review, granted by a superior Court to its own decrees, there is no analogy.
    JUDGE ROANE referred to Gaskins v. The Commonwealth,  as having established a contrary doctrine.
    Warden. I do not recollect that case. But, at any rate, the rights of infants are saved. It appears that many of the plaintiffs were infants when this bill was filed ; and, I believe, a considerable part are infants now. How could those of age (where the parties were so numerous, and some of them infants) have brought their bill ox review without making them all parties ? The whole must be considered as bringing their suit together ; because all persons interested must be parties.
    As to the question of abeyance, Judge Tucker, in his note to 2 Bl. p. 107, has referred us to Eearne, 513, and 526, which shew that, in a case of this kind, the estate could never have been in abe3Tancc ; for that cannot happen unless there be no heir known. Is there any resemblance between this case, and either of those stated by Blackstone ?
    *Williams, on the same side,
    quoted the 49th section of the Chancery law,  to shew what the legislature considered a final decree. If the decree of March, 1797, was final, the Clerk ought to have recorded all the papers. Yet the cause remained on the docket. There might be twenty records of the same case, if dismission as to part should be considered as final. In Grymes v. Pendleton, there was such a decree as this, though not inserted in the report of the case : yet it was decided to be interlocutory only. But if this point be against me, the decree was nevertheless correct. It is not at all important that Courts of Equity have, by analogy, adopted the rules of limitation at law ; for, if so, the analogy must hold throughout. The act of limitations must be pleaded ; which is not the case here. So in Hite’s Heirs v. Wilson and Dunlap, this Court decided that a release of errors must be pleaded.
    As to the right of inheritance being said to be in abeyance, the question is raised on the 7th section of the act of descents,  But the case of Brown v. Turberville, settled that question as to an adult: and, from the opinions of the Judges there pronounced, it appears that the 5th and 6th sections ought to be construed as disposing of the estate in the case of an infant, so that, where the mother is excluded from inheriting, it shall go to the brothers and sisters, or their descendants, of such infants, on the part of the father; or, if there be none, then to the brothers and sisters of the father, or their descendants. But I do not consider 348 this *question important in this case, there being no proof in the record that there are any maternal kindred. By the 14th section, then, if there be no kindred on one side, the whole must go to the other.
    Call, on the same side, to shew that the appellant could not avail himself of the act of limitations, since it had not been pleaded, cited Coop. Eq. 304, and 2 Vez. sen. 109, Greger v. Molesworth. In 1 Bro. Parl. Cas. 96, Sherrington v. Smith, a demurrer was allowed on the ground of length of time : but it appears, from the report of the case, that the equitable bar was set up in the demurrer ; and, according to Pryor v. Adams,  the form is unimportant, whether by plea or demurrer; provided the fact be stated, and relied upon as a bar. But, here, it was neither pleaded nor relied upon. Mr. Wickham’s argument, that adults may be barred while infants are not, is not applicable to this case ; the decree being entire and joint, though the respective proportions of the plaintiffs are several. The only case where (an adult and infant being joined in a judgment) one is bound, and the other not, is that of a fine, or common recovery; but those are considered as conveyances ; and the adult is bound by his conveyance. A joint judgment, naught in part is naught in all. 
    
    The decree here is joint to every intent and purpose. A reversal, then, as to the infants, must enure to the benefit of the adults. But, in equity, as the bar by the act of limitations alises only from analogy, it is regulated by the sound discretion of the Court, according to the circumstances of each case.  Eor example, the rule at law that, where the act begins to run, it does not stop, though descents to infants or femes covert intervene, is not permitted to operate, in equity, to their injury, though it may to their benefit. But
    2. The decree of March, 1797, was not final; for a final decree is that only which, puts an end to the cause, and puts it off the docket. The reasoning of the Court in Metcalf’s 349 **case, shews what is a final judgment at common law ; and may, by analogy, be applied to the question concerning what constitutes a final decree. It is there said, that “a writ of error shall rehear all which be parties to the original writ which shews that a writ of error brings up the whole case, though 'there may have been judgments as to part from time to time. The same doctrine is recognised in Courts of Equity. In Ormston v. Hamilton,  a decree, in Scotland, for part, was considered there as a final decree, but reversed in the House of Lords on that ground. What is the difference between a decree for part in favour of the plaintiff, (which is ever considered not final,) and a decree dismissing his bill as to part? Surely if in one case it be not final, neither is it so in the other. In G-rymes v. Pendleton (before cited) there was a decree as to part: yet the’whole decree was decided to be not final, and the whole cause was sent back for farther proceedings; on the ground that the appeal was premature. If the Court considered any part of that decree final, why did they not affirm that part ?
    The decree then not being final, a bill of review was unnecessary and improper. In Triplett v. Dunlop, (MS.) this Court have decided that there cannot be a bill of review to an interlocutory decree. In England, there may be a rehearing at any time before enrolment; and there the practice is to obtain it by petition. Until the cause is matured, so as that the Clerk should record the papers, the rule here is the same as in England before enrolment: but the practice is by motion.
    3. On the merits of the last decree. The difficulties suggested have arisen from the fallacy of considering the 5th and 6th sections of the act of descents as disposing or donative clauses, when, in fact, they are only excepting clauses ; excepting, in a certain 350 event, a certain description of persons. Every other person is left to take precisely as if those exceptions did not exist. The 7th section is predicated upon the nonexistence of the mother, brothers, &c. ; but the effect is the same as if there were no mother ; there being none capable of taking. The act of 1785 destroyed the common law rule of resorting to the blood of the first purchaser : that of 1790, c. 13, restored it sub modo. The question then is, always, whether there be a person of that blood which is heritable.
    Let us suppose that a citizen dies leaving an alien brother. The words of the section are, “if there be no mother, nor brother,” &c. : but, in fact, there is a brother, though not entitled to inherit. What then is to become of the estate ? The answer should be, “the case is precisely the same as if there were no brother. ” The case of a half brother before the act of 1785 was similar to this. Monstrous consequences would follow from a contrary doctrine ; a multitude of cases would exist in which there would be no canon of descents.
    The right of inheritance can never be in abeyance in á case like this. The rule is universal that there must be a tenant to the praecipe : otherwise, there can be no abeyance. While the freehold is in abeyance, some person must hold. But here no person can hold, but- as heir under the act of Assembly : and, if there be no heir, it must go to the Commonwealth.
    But the doctrines laid down by the Judges in their several opinions pronounced in the case of Brown v. Turberville, 2 Call, 390, are amply sufficient to remove all these difficulties ; either by considering the act of 1785 as still in force, where not repealed by the act of 1792;  or by construing the last mentioned act according to its evident spirit and meaning ; or by taking the whole of that act, and all other acts made on the same subject, into one view, and moulding them so as to effectuate the intention of the legislature,  And this decree is right, if either of those modes of construction be adopted.
    *Wirt, in reply.
    1. The decree of March, 1797, was final as to the personal estate; being a decree which absolutely decided the right, and left nothing farther to be done,  There was no condition to shew cause against it; no fact left open for a Jury to try; and no reference to a Commissioner. On the contrary the bill was dismissed on a hearing, and the cause, as to this subject, out of Court.» We admit it is still in Court as to the real estate; and, so far, the decree is merely interlocutory. But there is no weight in that circumstance, unless our adversaries establish the proposition that a decree cannot be final as to any party or any branch of a subject, as long as there shall be a party or any remnant of a subject in Court.
    The constant practice of this countrj’ disproves the proposition. Whenever a cause comes on, regularly matured for a final hearing, our Courts dismiss any defendant who, they may be convinced, ought not to be before the Courr, or any subject of the controversy which they are satisfied ought nbt to be detained and suspended in Court. The inconvenience and absurdit3r of a contrary practice is evident; since it would occasion, 1. The detention of a multitude of parties for the default of one; in which the3r are in no wise implicated, and for which, from the nature of the case, they cannot be responsiDle; and, 2. The unnecessary detention of a distinct estate in Court, which, the Court shall be satisfied, can in no event be changed by a suit.
    Let us suppose the case of a suit brought against several persons as distributees of an estate, and claiming, of each of them, specific negroes by name. The suit comes on for final hearing; and the Court are satisfied that one of the persons charged as a distributee is in fact not one, and in no wise liable to the claim; but that the other defendants are liable, and that multifarious accounts are to be settled, which threaten a long, troublesome, and vexatious contest. Must the innocent defendant be kept in Court? or may the Court dismiss the bill as to him? They may: they do: and, as to him, such dismission is final: 352 and, if so, it follows that *a decree in part may be final, and yet another part of the cause remain in Court.
    Again suppose, in the case put, the Court should be of opinion that, as to certain slaves charged by the bill to have been received by one of the defendants as a distributee, they were acquired by purchase from a different quarter, and never had any connection with the estate? Must those slaves be kept in Court for twenty years, and their owner’s hands tied, till the other branches of the cause are decided? Keason, right, and practice are otherwise. The bill may be dismissed as to them; and, from that day, they are out of Court, and their owner’s hands untied.
    Suppose, again, a debt attempted to be charged in Chancery upon the heirs and executors of a man ; being different persons ; and the Court should be of ojjinion that the heirs were not liable, (from the nature of the debt, or because they had received no portion of the estate,) but the executors were: must the heirs be still kept in Court? Or, if it should appear that the personal estate was fairl3’ exhausted, or demanded for payment of simple contract debts, but that the land was liable to the claim; might they not discharge the executors, and detain the heirs?
    So, here, the plaintiffs demand the real and personal estate: the cause is matured for a hearing, and comes on for that purpose fully before the Court: and the Judge is of opinion that the plaintiffs have no right to the personal estate; and, as to that subject, dismisses the bill. The decree is final.
    If, in March, 1797, when the decree was pronounced, Elizabeth Steptoe had held only the personal estate, as administratrix to her son; and other persons calling themselves heirs had held the real estate; and the Chancellor had given this opinion, dismissing the cause as to her and the subject in her hands; would shé not have been out of Court? Would the pendency of a different and distinct claim against others have operated to keep her in Court, after she had been dismissed? Might she not, in such case, consider herself as discharged, and act accordingly; selling and 353 administering 'xthe estate? Would a purchaser under her, after such dis-mission, be deemed a lite pendente purchaser, and forced to refund the property? Could the Court proceed to decree any thing against the party so dismissed, without the notice of new process? Those who hold the affirmative of these propositions, must find a new dictionary of the English language, and shew, by it, that an absolute decision of a right means the expression of a'doubt, and to dismiss a party out of Court means to keep him in it.
    If, then, the decree would be final, where the heirs and administratrix are different persons, does it make any odds that the two rights concur in the same person? The subjects are in their nature distinct, real and personal, capable of being the subject of distinct suits, and held by different persons. The characters in which they are held are distinct; as heir and administratrix; their functions distinct; their responsibilities distinct. And the maxim is, that, when two distinct rights concur in the same person, they are regarded by the law in the same light as if they were in different persons. The opinion of the Judge treats the subjects and characters as distinct; the expression of opinion as to the right is just as absolute, and the terms of dismission as strong, as if the persons were different; and those expressions and terms of dismission must mean the same thing as if the persons were different. The effect of the decree of dismission is the same as to the rights of the administratrix and of purchasers.
    But the decisions of this Court are relied upon as establishing the doctrine that a decree is not final, until all the parts of a cause are disposed of, and all the parties out of Court.
    The cases of M’Call v. Peachy,  Fair-fax v. Mitse,  and the President and Professors of William and Mary College v. Hodgson,  Were all cases where the subjects in controversy and the decrees were of a totally different character from that now in question. In each of those cases, the subject was one; not only incapable of being held by different persons, but incapable of division; much more of distinct 354 *suits. The decrees were not, as here, decrees of dismission, but of satisfaction of debts in part. We defy the counsel, on the other side to produce a case where, in a suit claiming two subjects in their nature distinct, a decree, absolutely deciding the rights as to one of them against the plaintiff, and dismissing the bill as to that, has been held interlocutory quoad hoc.
    The appeal in the case of Grymes v. Pendleton,  (as will be seen by reference to the original record,) did not present the question whether that part of the decree which dismissed the bill as to one of its objects was or was not final. The defendants (who were the appeliants) could not complain of that part of the decree which made in their favour; as has been frequently settled in this Court. The other part, therefore, which was against them, could alone be drawn in question upon their appeal; and that part was clearly interlocutory. If the plaintiffs had appealed from the decree dismissing the bill as to the land, they might have raised the question whether this branch of the decree was or was not final: and if, on their appeal, it had been adjudged interlocutory, there might have been some colour for the argument on the other side.
    Mr. Call, aware of this obvious answer to the argument drawn from that case, has asked, “if the Court considered any part of that decree final, why did they not affirm that part?” Because there was no party before them authorised to ask it. The appellants had no right to ask an affirmance; nor had the appellees, who represented the personal estates of Grymes and Thornton, any interest in, or right to, the real estates. The question then was not raised. By the mere appeal of the defendants, they were not called on to consider any part of the decree in their favour. Why then should the Court have affirmed it?
    The 49th section of the Chancery law,  furnishes no argument to shew that this was not a final decree. The object of that section is only, *1 ‘for the more entire and better preservation of the records of 355 the Court, ’ ’ to impose a '^certain duty on the Clerk when a cause is finally determined in all its parts. But it does not declare what is a final decree; for no such phrase occurs in the section. Indeed the “final determination,” there intended, is always understood as not taking place till after the decision of this Court upon the appeal from the final decree; for not until then does the Clerk of the Court of Chancery. record the papers. The Clerk’s recording the papers gives no new authority to the decree: the pleadings thus made out are never signed by the Judge. The decree is perfect before; this book being merely for safe keeping. Nor is the enrolment, in England, an act which at all changes the nature of the decree, as to its being final or interlocutory: for, if it did, as the bill of review lies only after the final decree, the time which runs against it would run from the enrolment; whereas it is counted from the time of pronouncing the decree,  Indeed enrolment “is now much disused.” So that the final nature of the decree, in England, is decided by its terms, its intrinsic character, and not any formality used in relation to it. And in this country the rule is the same: or if any act, equivalent to the enrolment in England, were requisite to complete the final character of a decree, it is found in this, that the record of each day’s proceedings is regularly drawn up bj' the Clerk and signed by the Judge. In Metcalf’s case there was a judgment quod computet; which clearly was not final; and no writ of error lay till after judgment on the account; as was evident from the very form of the writ: but that case has no resemblance to this. Ormston v. Hamilton is a short note in the index, in these words: “Decree, in Scotland, taken for part of a demand, with reservation of the other part not determined. Decreed there that it was lis finita; but reversed.” The case itself is not reported in the book: but this little shews clearly that it has nothing to do with this argument. It was determined in Scotland, not that such a decree was final pro tanto; but that it finished the whole controversy; and the lords very rightly determined that it did not. So that the position remains 356 -'untouched, that this decree, deciding against the right of the plaintiffs to the personal property, and dismissing the bill as to that subject, was so far final. If so, the controversy is at an end as to Tempieman, the cnly defendant now before the Court, who, as executor of Elizabeth Step-toe, is interested in maintaining no other part of the decree of 1797: for he is protected by a final decree, unreversed, and unappealed from, and which, in fact, no-proceeding has ever been instituted to affect. Mr. Wickham, willing to place this case on the most liberal ground for the plaintiffs, considered their last bill as a bill of review. They disclaim it, and call it a bill of revivor; and rightfully, I incline to think: and, if a bill of revivor, it cannot reach this part of the decree; but only those proceedings which were alive but abated by the deaths of the defendants. The plea and replication do not consider this as a bill of review. The parties join issue upon the point whether the decree of 1797 was final as to the personal estate; and the Chancellor on this issue overrules the plea; thereby deciding that it was not final but interlocutory. This we say is an error; and, if so, the case is with us.
    2. But if the bill against Templeman is to be considered as a bill of review, it is too late, according to the authorities heretofore cited; to which add Cook v. Arnham.  But it is said that we ought to have pleaded the limitation; and the authority of Hite’s Heirs v. Wilson and Dunlap is relied upon. But that case goes no farther than to settle the doctrine that every thing, out of the record, that is, every defence which is matter in pais, must be pleaded. But here the objection did appear by the record : the intervening time was shewn on the face of the last bill and its exhibits. Coop. Eq. p. 304, is admitted to say expressly that this matter must be pleaded; and this on che authority of 2 Vezey, 109. The same author had before asserted this doctrine, (p. 216,) on the same authority; expressly laying it down that it will not do by demurrer. Yet in the note he refers to 1 Bro. Pari. Cas. 95,  as contra.
    *The case of Edwards v. Carrol, in 1760,  a still stronger and later case, and on higher authority than that of Vezey, settles the principle that the Court will notice it ex officio: for there was a general demurrer: and this upon very good reason; for the party who files a bill of review must take it out of all exceptions appearing by the record. The defendant needs no plea to introduce his objections: the record operates as a plea.
    It is said too that the infancy of some of the plaintiffs shall save the rest; because the decree of dismission, being joint, if void as to any, is void as to all; and Styles, p. 400, is quoted. But it is not proper to deduce conclusions from the common law forms of entry, as governing cases in equity. The case in Styles, is one of a joint judgment at common law and cases are reported which shake this rule as applicable to all cases of joint judgments in which an infant is a party.  But the decree now in question is not joint but several in every thing. Was it not competent for the adults to proceed to review it, whether the infants would join, or not, as plaintiffs? There is nothing, therefore, in the infancy of some of the parties to take the adults out of the operation of time: andas to them, at least, the decree of 1797 cannot be set aside.
    The plaintiffs have not made a case which justifies the decree of November, 1805. Under the act of 1785; the mother would have taken the whole estate in this case. How far does the 5th section of the act of 1792 repeal that provision? Mr. Call says totally : it destroys her heritable blood altogether; it annihilates her existence.
    Be it, then, that the mother is excluded from the inheritance. Who takes next? Do the paternal uncles and aunts? Certainly not under the act of 1785: because, by that act, where there were neither children, father, mother, brothers or sisters, or their descendants, the paternal uncles and aunts did not come in ; but the estate was divided into two moieties, one of which was to go to the paternal, the other to the maternal line. If, then, the act of 1785 358 *would not give the whole estate to these plaintiffs, does the 5th section itself, of the act of 1792, give it to them? No: for Mr. Call says, and says truly, that section is not donative, but only excepts a particular case out of the canon of 1785. On what then do they found their title?
    It is clear that Mr. Call thought that, on his removing the mother, these plaintiffs would stand next under the general law. In pursuit of this idea, he advanced the position that, if the person who stands next to the propositus have no heritable blood, the estate passes on to the next, as if such intermediate person had no existence. This is not believed to be true: certainly not universally: for, at common law, where the blood of the eldest son was attainted, the next, though free from attainder, could not take. So, in the case of the eldest being an alien, the next son a citizen ; it is a moot point whether the latter could take: our law of descents considered it so, and therefore provided for it.  So the statute of 1 Jac. I, c. 4, s. 6, having pretermitted popish recusants, but not prescribing who should take the inheritance, another statute was necessary, 
    
    But, admitting the principle correct, and that the mother is to be considered dead, the 5th section merely excludes from the inheritance the mother, and“any issue which she may have by any person other than the father of such infant;” but leaves the ascending and collateral relations of the mother where they stood under the act of 1785.
    What decree then is right? and where shall the rule be found? Brown v. Turberville was on a different case; the only question there being, whether the words interpolated in the 7th section covered the case of an adult: and, except an obiter dictum of Judge Pendleton, there is nothing in that case touching this.
    Upon the whole, then, the plaintiffs have not made a case to justify the decree; which, therefore, should be reversed.
    *Wickham requested leave to make a few additional observations. If the plaintiffs had brought separate suits for the real and personal estates, the decree as to the personal would have been final. If their coupling both in one bill makes it otherwise, it follows that the plaintiff has it in his power to oust the Court of Appeals of jurisdiction, at his own discretion, by the manner of bringing the suit: a conclusion too monstrous to be tolerated.
    As to the inheritance, the case of Dilliard v. Tomlinson shews that the words of the act, when plain, are binding, and construction is not admissible against them. Therefore, here, as the words only exclude the mother, and do not say to whom the estate is to go, the Court cannot supply a disposal of the estate. As to the personal property, (the law not providing,) the mother, as administratrix, is in possession, and the plaintiffs have no claim upon her; like the case of a husband administering on his wife’s estate, who is not tobe called upon for distribution, 
    
    Wednesday, October 24.
    
      
      Decrees — Interlocutory—What Constitutes. — On this subject, the principal case is cited in Manion v. Fahy, 11 W. Va. 493; Alexander v. Coleman, 6 Munf. 334; Royall v. Johnson, 1 Rand. 427; Cocke v. Gilpin, 1 Rob. 35; Miller v. Cook, 77 Va. 819; Ryan v. McLeod, 32 Gratt. 377; State v. Hays, 30 W. Va. 107, 3 S. E. Rep. 177. As to the rules determining whether a decree is interlocutory or final, see foot-note to Grymes v. Pendleton, 1 Call 54; foot-note to McCall v. Peachy, 1 Call 56; foot-note to Harvey v. Branson, 1 Leigh 108; foot-note to Vanmeter v. Vanmeters, 3 Gratt. 148; foot-note to Fleming v. Bolling, 8 Gratt. 292; foot-note to Rogers v. Strother, 27 Gratt. 417; foot-note to Cocke v. Gilpin, 1 Rob. 21; foot-note to Ryan v. McLeod, 32 Gratt. 367; foot-note to Young v. Skipwith, 2 Wash. 300; monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
      Statutes of Descents — Construction—Realty—Personalty. — The true construction of the seventh section of the "act reducing into one the several acts directing the course of descents” as to the case of an infant, is, that if there be no mother, etc., and the estate was derived from the father or mother the inheritance shall not be divided into moieties, but the whole shall go to the kindred of that parent from whom the estate was derived. And the law was the same as to the distribution of unbequeathed personal estate belonging to infants who died between the first of October, 1793, and the twenty-second of January, 1802. Addison v. Core, 2 Munf. 279, 280, citing the principal case to sustain the proposition.
      Under the fifth section of the acts of descents of 1792, where an infant died without issue, having title to certain real estate derived by descent immediately from the father; leaving no relations in the paternal line, but a grandmother and uncle, the grandmother was not entitled to inherit any part of such estate, but the paternal uncle was entitled to the whole. Liggon v. Fuqua, 6 Munf. 281, citing the principal case. But see Rev. Code 1819, ch. 96, §§ 11, 12; Code Va. 1887, § 2556.
      In Medley v. Medley, 81 Va. 271, it is said; “By our statute of descents passed in 1785, the common law on this subject has been totally abrogated, as being repugnant to the spirit of our republican institutions, and a system -intended to embrace every possible case that can arise, established in its-stead. This was declared in Browne v. Turberville, 2 Call 390, by Judge Pendleton, who was a member of the committee that drafted the act of 1785, and by Judge Tucker, in Templeman v. Steptoe, 1 Munf, 339, and it was so decided in Davis v. Rowe, 6 Rand. 355.”
      On the construction of the statute of descents, the principal case was also cited in Lightfoot v. Colgin, 5 Munf. 74; Davis v. Rowe, 6 Rand. 368, 430, 437, 438, 441; foot-note to Browne v. Turberville, 2 Call 390; foot-note to Tomlinson v. Dillard, 3 Call 105-
    
    
      
       1 Rev. Code, p. 426.
    
    
      
       1 Rev. Code, p. 164, s. 27.
    
    
      
       1 Rev. Code, p. 67, s. 49.
    
    
      
      Note. This appeal (being- from an interlocutory-decree) was granted by virtue of the discretionary power vested in the Chancellor by the act “enlarging the right of appeal in certain cases,” passed the 23d of January, 1798. See 1 Rev. Code, p. 375. — Note Original Edition.
    
    
      
       2 Tuck. Bl. App. 28-42.
    
    
      
       1 Rev. Code, p. 82, s. 52.
    
    
      
       Coop. Eq. 92, 93, and the cases there cited, particularly Edwards v. Carroll, 5 Bro. Parl. Cas. 466, and Smith v. Clay, 3 Bro. Ch. Cas. 639, in note, and Ambl. 645, S. C.
    
    
      
       1 Call. 54.
    
    
      
       Ib. 55.
    
    
      
       2 H. & M. 557.
    
    
      
       1 Call, 194.
    
    
      
       Belied on in the replication, ante, 1 Rev. Code, p. 67.
    
    
      
      Note. It appears from the record in the case of Grymes and others v. Pendleton and Lyons, Administrators of John Robinson, deceased, that the Chancellor’s decree, (pronounced the 26th of September, 1793.) after ascertaining- the sum to which the plaintiffs were entitled, subjecting the nnadministered personal estates of Philip Grymes and Presley Thornton to satisfy the same, and directing an account of the said personal estates to be taken by a Commissioner, “dismissed so much of the bill of the plaintiffs as sought to subject to their demand the real estates of the defendants derived from their ancestors and testators.’’ From this decree the defendants prayed an appeal, which was granted by the Court of Chancery, but dismissed by the Court of Appeals at Octobei term, 1797, and the cause remanded for farther proceedings. — Note in Original Edition.
    
    
      
       2 H. & M. 268.
    
    
      
      
         1 Rev. Code, p. 169.
    
    
      
       2 Call, 390.
    
    
      
       1 Call, 391.
    
    
      
       Styles, 400, 406.
    
    
      
       Wyatt’s Pr. Reg. 307, 3 P. Wms. 8, Mills v. Banks; 1 Vez. sen. 206; Kemp v. Squire, 1 Sch. & Let. 413, Bond v. Hopkins.
    
    
      
       11 Co. 39.
    
    
      
       8 Bro. Parl. Cas. 364.
    
    
      
      Note. See also Ellzey v. Lane’s Executrix, 2 H. & M. 589.
    
    
      
       See Judge Fleming’s opinion, 2 Call, 397—400.
    
    
      
       See Judge Carrington’s opinion, ib. 401, 402.
    
    
      
       See Judge Lyons’ opinion, ib. 403, and Judge Pendleton’s, ib. 404—408.
    
    
      
       2 Fowler’s Exc. Pr. 195.
    
    
      
       1 Call, 55.
    
    
      
       2 H. & M. 557.
    
    
      
       Ibid.
    
    
      
       1 Call, 54.
    
    
      
       1 Rev. Code, p. 67.
    
    
      
       Coop. Eq. 92.
    
    
      
       Ibid. 73.
    
    
      
       11 Co. 89.
    
    
      
       Ibid. 38, b.
    
    
      
       8 Bro. Parl. Cas. 364.
    
    
      
       3 P. Wms. 287.
    
    
      
       2 H. & M. 268.
    
    
      
       Sherrington v. Smith.
    
    
      
       5 Bro. Pari. Cas. 466.
    
    
      
       1 Salk. 205, Cone v. Bowles; and Carthew, 122, S. C.
    
    
      
       1 Rev. Code, p. 169, c. 93, s. 18.
    
    
      
       2 Tuck. Bl. App. p. 33, note.
    
    
      
       2 Call, 390.
    
    
      
       Ante, p. 183.
    
    
      
      
        1 Rev. Code, p. 164, c. 92, s. 27.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

This is a case arising upon the construction of our law of descents, and of distribution of personal estate; where an infant of the age of thirteen years died possessed of real and personal estate derived from his father; leaving a mother, (and other relations on the mother’s side, as it would seem,) but no brother, or sister, whatever, nor any descendant from them.

A preliminary question, however, arises from the following circumstances. The infant, Edward Steptoe, died in May, 1794. His mother administered upon his estate, and entered into possession of the whole, both real and personal. A part of the present plaintiffs, uncles and aunts on the part ot the father, or descendants from them, brought their bill against the mother for a division of the estate, claiming the whole. In her answer she states, that she had 360 been advised *she had a right to her son’s personal estate; and, if so, some of her near connections may be benefited by it: which seems to shew she had near relations who were no parties to the suit. On the 17th of March, 1797, Mr. Wythe, then Judge of the High Court of Chancery, pronounced his decree, whereby he decided that the complainants had no right to the slaves, or personal estate, and dismissed the bill as to the part thereof which claimed the same, and demanded an account of the administration thereof. But, being of opinion that the complainants were entitled to the lands, he directed partition thereof to be made among them in certain proportions, and appointed Commissioners to state an account thereof, and to settle and adjust an account of the profits, since the death of the infant Edward Step-toe, to be reported to the Court. But, before any farther proceedings were had, Elizabeth Steptoe, the mother, died, having made a will, and appointed the appellant, Templeman, her executor; and William Steptoe, another defendant, having also died, the suit abated as to both those original parties.

After the division of the High Court of Chancery into Districts, (the act for which passed in January, 1802,) the present complainants filed a bill (the date of filing which does not appear) in the Williamsburg Chancery District Court; in which they speak of the former decree as interlocutory, and still amendable by the Court, and therefore pray that they may have the benefit of all the proceedings in the original suit, except the said interlocutory decree, which, as they are advised, ought to be set aside, partly for error apparent on the fa.ce of it, and partly because the execution of certain parts of it has become impossible; and pray process of subpoena to revive and answer against the appellant Templeman, as executor of Elizabeth Steptoe. One of the suggestions in this bill, which states that William Steptoe died in April, 1803, shews that the filing of the bill was after that period, so that more than six years elapsed 361 ^between the time of pronouncing the first decree, and the preferring the present bill.

To this bill Templeman, the executor of the mother, after disclaiming any connection with the real estate, pleads the decree of March, 1797, as a final decree in bar of the claim to the slaves and personal estate, and account of their hires, since the death of his testatrix, or of the administration of his testatrix on the personal estate of her husband, George Steptoe, deceased, &c.; and insists on the length of time, and acquiescence of the plaintiffs under that decree.

The replication to that plea denies that the decree of March, 1797, was final, in any respect, but says nothing of the lapse of time or acquiescence under the decree.

In November, 1805, the cause was heard before the Chancellor of the Williamsburg District, who pronounced a decree overruling the defendant’s plea; and declaring that, neither the mother, though alive at the death of her son, nor any relations on her part, were entitled to any share or proportion of the infant’s estate, real or personal, and directing that the whole should be distributed among the complainants, as heirs on the part of the father, in the several proportions therein mentioned, together with an account, &c. in order to a final decree.

From this decree the defendant Temple-man prayed, and obtained an appeal to this Court, by virtue of the act of 1797, c. 5, authorizing the High Court of Chancery, in its discretion, to grant appeals from interlocutory decrees. Before which period no appeal could be granted until a final decree.

The counsel for the appellees contend, that the original bill having been dismissed, as to the personal estate, by the decree of March, 1797, that decree was final as to that matter; and that the plaintiffs were barred by length of time from filing a bill of review.

If the premises be correct, I think the conclusion must be so too. For the utmost period within which an appeal from 362 *a Superior Court of Chancery to this Court lies, seems to be three years, as was fully discussed in the cases of Tomlinson v. Dilliard, and Mackey v. Bell By analogy, then, I should suppose that a bill of review would not lie after that period. For that would be granting moré po'wer to the Judge of the same Court to reverse the decrees (pronounced by his predecessor perhaps) than the law vests in this Court. Instead of resorting to the period assigned to writs of error at common law, I think it far more reasonable that the period which the law has assigned to appeals from the Courts of Chancery be adopted as that which bars a bill of review. In England the statutory law is silent as to appeals from the High Court of Chancery. Therefore, the analogy to writs of error at common law was adopted. But our law having assigned a period within which appeals in Chancery must be brought, that period appears to me the proper standard by which the granting of bills of review should be governed. It is unnecessary, I conceive, to consider how far the saving in favour of infants might operate: the analogy must be observed throughout; and, if any of the parties were infants, their case is provided for.

But the counsel for the appellants insist that the decree was not final, but merely interlocutory, and therefore still in the breast of the Court. The inconveniences of such a construction were most ably commented upon, and illustrated by the opposite counsel. They are such as, in my opinion, to deserve not only the attention of the Courts, but of the Legislature. That a decree of dismission, which in its nature seems conclusively to determine every question of right, after being acquie'sced in for six years, should be liable to be set aside by the successor of the Judge who pronounced it, and thereby affect, perhaps, the rights of bona fide purchasers for a valuable consideration, actually paid, upon the principle that they were purchasers pendente lite, seems so far repugnant to every idea that I have of justice, or equity, that I cannot well imagine a case that would call more loudly for legislative aid and 363 protection, if the offended ^dignity of Courts should pronounce against the claim of such bona fide purchaser. But that case is not before us, and I hope never will be, though not unlikely to happen very frequently, if the practice he permitted to prevail; which it certainly ought not, so as to affect others, now that the law allows appeals from interlocutory decrees. In the present case, however, as the law stood at the time the decree was pronounced, no appeal lay; for, however cogent the arguments to the contrary appear in my ej'es, I am constrained by former precedents to say that the decree of March, 1797, was not a final decree between the parties, all of whom were still retained in court, although the bill, as to a part of the subject claimed, was dismissed, The succeeding bill is, therefore, to be taken as a bill of revivor and supplement, by which the cause was brought regularly before the Judge who pronounced the second decree.

By that decree, as I have already noticed, the Chancellor decided that, neither the mother of the infant, nor any relations of the infant, on the part of the mother, were entitled to any portion of his estate, real or personal.

That decision, so far as it respects the mother herself, or any of her descendants, other than children by the father of the infant, or their descendants, appears to me to be perfectly correct. But I differ with the Chancellor so far as respects the father or mother of the mother, or any of her collateral relations, all of whom, in the events which have happened, appear to me '(if in being at the time of the infant’s death) to be entitled to a portion of his estate, real and personal.

The following principles appear to me not to require any argument, or authority, in support of them.

1. That the laws of descent, or rules of succession ab intestato, to property real or personal are merely creatures juris positivi.

2. That, by the act of 1785, c. 60, all former rules and canons of inheritance and succession to estates real and personal within this Commonw'ealth, whether 364 established by *the common law or by statute, were entirely rescinded, abrogated and annulled: and that they cannot be revived in any manner, but by some express legislative provision for that purpose.

3. Thai, if, by any subsequent act, any case provided for by the act of 1785 shall now happen not to be provided for, the legislature only is competent to provide for such omitted case,

4. That the case of an infant having lands by descent or purchase from his father, already deceased, dying in the lifetime of the mother, and leaving no child, nor brother, nor sister, nor any descendant from either of them, was fully provided for by the fourth section of the act of 1785, c. 60.

5. That the same happens now not to be provided for, by the operation of the act of 1792, c. 93, s. 5. The law declaring only that, in such case, the mother shall not succeed to the same: without designating any other person or persons to whom the succession shall belong during the life of the mother: neither the seventh section of that act, nor any subsequent part thereof, providing for the succession in any such case.

From these principles, as premises, it appears to me that, in the case above supposed, (which is the same with that before the Court,) the succession to the inheritance during the life of the mother was in abeyance; and that, at her death, the whole estate, real and personal, ought to go to the same persons, and in the same proportions, as the same would have descended, if there had been no mother, nor brother, nor sister of the infant, nor any descendant from either of them, at the time of the death of the infant. And, consequently, that, after the death of the mother, the estate, both real and personal, ought first to be divided into two moieties, one of which moieties ought to be allotted to the plaintiffs in the several proportions, by which the Chancellor in his decree has directed that the whole shall be allotted; and that the other 365 moiety be reserved for the benefit *of those relations on the part of the mother (of which by her answer to the original bill it appears probable there were some living at the time of the infant’s death) who may within a reasonable time assert and prove their claims thereto. But if no such relations on the part of the mother shall assert their claim within a reasonable time, to be limited by the Court of Chancery, that the other moiety be then divided among the plaintiffs in the same proportions as the former.

It also appears to me, that, as no person was capable of succeeding to the inheritance as heir, during the life of the mother, the account of rents and profits, subsequent to the death of the infant, ought not to be decreed to be taken for that period which elapsed between the death of the infant and the death of his mother. The inheritance, during that period, being, as I have already said, in abeyance, the first occupant, who might enter and possess himself thereof during that period, might, as I conceive, lawfully hold the same, and take the rents, issues, and profits thereof to his own use, so long as the mother lived, without being in any manner chargeable or accountable for the same to the persons to whom the succession may belong, after the mother’s death.

My opinion, therefore, is, that so much of the Chancellor’s decree as is in opposition to these principles be reversed, and that a decree conformable thereto be now made: and that the remainder of the decree be affirmed.

To prevent any misconception of this opinion, I beg leave to add that, if there had been any brother or sister of the infant on the part of his father living at the time of his death, or any descendant from them, such brother, sister, or their descendants, would have been entitled to take the estate immediately, notwithstanding the mother was then also living; as, in such a case, the inheritance would not have been in abeyance for a moment.

*JUDGE ROANE).

With respect to the first question made in this case, I consider it as the established doctrine of the Court that a decree of the inferior Court is not to be considered as final, until the cause is completely dismissed therefrom. Until that is the case, the Court below has, itself, the power to correct any errors it may have committed, and any decree it tnay have rendered is, therefore, not to be considered as final. Most of the arguments now used on this topic have been used and overruled on former occasions.

As to the question now made upon the act of descents, I believe it will be admitted that I have borne my testimony against the policy which gave rise to the act of 1790, restoring, in a measure, the feudal principle of the blood of the first purchaser. But, while I shall never be in favour of extending that principle in doubtful cases, by construction, I do not deny the power of the Legislature to make the innovation. The question before us is then purely a question of construction upon the intention of the Legislature as manifested in the act itself.

No man can be more sensible than I am, of the impropriety of extending the construction of an act by mere implication; especially to further an odious or unjust principle; but I apprehend that an implication may be so strong and necessary as to be equivalent to an - express declaration by the Legislature. This I take to be the case in the present instance. The exclusion of the mother in the event that there is a brother or sister on the part of the father, or a brother or sister of the father, is substantially* equivalent to an express declaration that the persons last mentioned shall tnemselves succeed; and -this the rather, as the first section of the act of descents purports to provide a rule of inheritance as to all cases, and which idea is entirely supported by the opinion of this Court in the case of Brown v. Turberville. I consider that decision as a complete 367 authority *to overrule the idea that the inheritance is in abey'ance in the case before us. The succession in this case, therefore, does not rest upon a mere naked implication, but upon an implication so strong and necessary, (all the circumstances considered,) as to be equivalent to an express declaration by the Legislature. In this last respect this case differs from the one put in a note to 2 Tuck. Bl. App. p. 33, where an elder child being disabled from inheriting’ by receiving a popish education, and the statute which disabled him (1 Jac. I.) containing no declaration who should have the land, a subsequent statute was deemed necessary to be made in favour of the next of kin.

It is a sound rule of construction that, if it can be prevented, no clause, sentence, or word, shall be rendered superfluous, void, or insignificant, In the case before us it is difficult to say wherefore the brothers and sisters on the part of the father, and e converso, were mentioned in the act, but for the purpose of following up the principle on which the change of the rule was founded, and giving the estate to them, instead of the excluded parent.

Upon the whole, my. construction of the act of 1792 is, that it is entirely similar to that of 1785, with the single” exception of the amendment made by the act of 1790; (which is kept up and extended by the 5th and 6th sections of the act of 1792;) and that those sections operate by way of exception from the general law in the cases put therein, as well by substituting one heir, as excluding another. The error on this point seems to be in considering the canons of the act of 1785 as still in force, (for example, in, favour of the paternal grandfather and maternal grandmother,) while at the same time the succession is changed, in a particular case, in favour of the maternal uncles and aunts, &c. As to the justice of this alteration, the power o^ the Legislature being admitted, we are' compelled to say “stet pro ratione voluntas.”

I therefore concur with the Chancellor in his construction *in the present instance, which is* also that of the public at large, and thereby avoid the great evil (as almost all infants derive their property either on the part of the father or the mother) which would result from deciding that, in cases like the present, no-rule of descent is provided by law, and that the estates are, consequently, in every instance, to be considered as in abeyance.

JUDGE) FLEMING.

The counsel for the appellant, in their statement, rested the cause on two points cnly:

1st. That the original decree was right; and,

2d. That the bill having been dismissed as to the personal estate, the decree was final as to that matter; and the plaintiffs were barred by length of time from filing a bill of review.

The cause was argued with great ability on both sides, but much the greater part of the arguments of the appellant’s counsel seemed predicated on the assumption of facts which, in my apprehension, did not exist; to wit, that the decree of March, 1797, was final; and that the bill against Templeman, as executor of Elizabeth Step-toe, was a bill of review. In order to prove that the decree of 1797 was final, it was strenuously argued that there ought to have been two separate and distinct suits p one for the real, and the other for the personal estate: but, for what good purpose there should have been more than one suit, I am at a loss to discover. The counsel proceeded to argue that, as the Chancellor decided the right, respecting the personal estate and dismissed the bill, as to that subject, the decree was final: but this Court has never considered a decree to be final, so long as the parties remained in Court; but every order and decree made during that space, has been considered as interlocutory, and subject to revision; as in the cases of Young v. Skipwith, Grymes v. Pendleton, and M’Call v. Peachy. In the former case, Skipwith brought his bill against Young for the moiety of a tract of land, according to contract. The Chancellor decreed for the plaintiff a moiety 369 *of the land, (which completely decided the rights of the parties,) and appointed a Commissioner to make a partition accordingly. Young appealed to this Court, which, after a long and solemn argument on the merits of the cause, decided unanimously that the decree was interlocutory, dismissed the appeal, and remanded the cause to the High Court of Chancery ; as was likewise done in the cases of Grymes v. Pendleton, and M’Call v. Peachy, noticed above: and in several subsequent cases, after the act of January, 1798, allowing' appeals (by the Court of Chancery) from interlocutory decrees; particularly, in the cases of the President and Professors of William and Mary College v. Lee’s Executors, and of Fairfax v. Muse’s Executors, In the latter case, there was a decree to foreclose the equity of redemption of mortgaged lands, and the premises ordered to be sold: yet this Court unanimously dismissed the appeal, as having been improvidently allowed, in vacation, from an interlocutory decree; which was not authorized by law. And, had an appeal been allowed, in the case before us, from the decree of March, 1797, there is not a doubt on my mind hut it would have been dismissed, as having been prematurely granted. Considering that decree then as interlocutory, and not final, the argument, that a bill of review was barred by length of time, falls to the ground. But, in my apprehension, it is not a bill of review, but a bill of revivor and supplemental bill, which the several deaths of Elizabeth and William Steptoe, who were the executrix and executor of George Steptoe, deceased, made necessary, in order to bring the whole subject in controversy properly before the Court; and in which the widow, and the children of William Steptoe, (eight in number,) were made parties, plaintiffs; and who, by the last decree, are made distributees of one fourth part of the estate of the said Edward Steptoe, deceased, the widow’s dower therein being first allotted to her; all which appears to me • to have been correct and proper.

As to the length of time that the appellees acquiesced in, and left undisturbed, the decree of March, 1797, it may be 370 *well accounted for. The Commissioners appointed, by that decree, to state an account of the real estates whereof the said Edward Steptoe died seised, and to settle and adjust the profits of the said estate, since his death, had made no report of their proceedings, before the deaths of the said Elizabeth and William Steptoe, when the bill of revivor, and supplemental bill, because necessary for the purposes aforesaid. I come now to consider the cause on its merits, and to decide, according to the best of my judgment, the rights of the parties to the estate of Edward Step-toe, deceased, under our several acts of Assembly. And here a difficulty seems to arise, anda difference of opinion among the judges, respecting the exposition of those acts; which circumstance, and the very ingenious arguments of the counsel, induced me to consider the subject with more than ordinary attention; and, after the most mature deliberation, the difficulty to me appears easiljr solved, by giving to those acts such a construction as I conceive to have been the sense and intention of the Legislature, at the several periods when they were passed; and, as I believe, agreeably to the general sense and understanding of the community at large.

It was objected by the appellees’ counsel, though not much relied on, that the fifth clause of the act of 1792, under which the appellees claim, is only a proviso, or an exception, to the general principles, words, and meaning of the preceding clauses; and ought not to have the same force and effect as if it had been declaratory, and an enacting clause.

Our first act of Assembly, altering the course of descents from that of the common law, was passed in the year 1785; in which the sense of the Legislature was expressed, in general terms; as it was likewise in the 24th section of the act of distribution,, passed the same session, and referring to the act of descents, for the distribution of goods and chattels: but, in the year 1790, an important change was made, in cases of infants dying without isuse; and, by an. act passed the 24th of December, in that year, entitled “An act to amend the act entitled an act directing the course 371 of descents,” it is ^enacted (section 3,) that, “where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the father, the mother of such infant shall not succeed to, or enjoy the same, or any part thereof, by virtue of the said recited act, if there be living any brother or sister of such infant, or any brother or sister of the father, or any lineal descendant of either o£ them:” in which act there is another clause, vice versa, excluding the father, &c. where the estate is derived from the mother. In the same act there is a repealing clause in the emphatic words following: “So much of all acts as comes within the purview of this act, and particularly of the act entitled an act directing the course of descents,” (viz. the act of 1785,) “shall be, and the same is hereby repealed.” The above clauses, respecting cases of infants dying without issue, are declaratory and explicit, and not exceptions to clauses of general import. It is true that, when they are incorporated into the act of 1792, “to reduce into one the several acts directing the coarse of descents,” they are there inserted as. said provisoes to the general course of descents in the preceding clauses; with the exclusion of any issue which the mother may have by any person, other than the father of such infant ; which latter exclusion was not in the act of 1790: and so in the clause excluding the father, &c. from inheriting any estate derived from the mother.

But it is contended, in the present case, that the 5th clause of the act of 1792, which excludes the mother from the inheritance, is in negative words, and no express declaration who shall inherit the estate; and therefore it is a casus omissus; and, during the life of the mother, the estate was in abeyance, there being no person in existence capable of inheriting; as the infant died, leaving neither brother nor sister; and that, on the death of the mother, (there being no provision for the case in the act of 1792,) so much of the act of 1785 as directs that the inheritance shall be divided into moieties, one of which shall go to 1he paternal, and the other to the maternal kindred, is revived, and in force; (the course of descents by the common law being-372 *done away by the statutes; and it being a rule, that a statute cannot be repealed by implication.) But we have already seen that the act of 1785, so far as it was within the purview of the act of 1790, which completely embraced, and, in my conception, provided for, the case before us, was repealed in as express terms as language could devise.

And, further, in the act of 1792, directing the course of descents, there is a clause declaring that all and every act and acts, clause and clauses of acts heretofore made, containing any thing within the purview of this act, shall be, and the same are hereby repealed. The act, then, of 1785, or so much thereof as was within the purview of either the act of 1790, or the act of 1792, was clearly repealed. And it is a rule of equal force with the one mentioned above, that a statute once repealed shall not be revived by implication. There is also another important rule of construction that well applies to the case before us; which is, that force and efficacy is to be given to every sentence, and significant word, in a statute, which does not contradict or obscure some other part of the same statute; and that,' where words or expressions are ambiguous, and of doubtful meaning or effect, such interpretation and application shall be given them, as to fulfil the object and intention of the Legislature, if the will of the Legislature can be fairly deduced from such words or expressions. And here let me premise that, in my conception, the Legislature intended to provide, and hath provided, for every possible case that could happen, (and such was the sense of all the Judges in giving their opinions in the case of Brown v. Turberville,) and, particularly, is there provision made for the one now under consideration ; and others of a similar nature; and that, as Edward Steptoe died under age, and without issue, having an estate of inheritance derived by purchase from his father, neither his mother, nor any issue which she might have had by any person, other than his father, could succeed to, or inherit, any part thereof: and, as there was no brother nor sister of the said Edward Steptoe, nor descendants of such, living at the time of his death, the 373 brothers '"and sisters of his father George Steptoe, deceased, and their descendants, (the present appellees,) have a right to the inheritance; which I conceive to have been clearly the will and intention of the Legislature; or why was the mother, and any issue which she might have by any person other than the father, excluded from the inheritance, “so long as there should be living any brother, or sister of the father, or any lineal descendant of either of them?” To give the latter words any other construction would, to my mind, render them nugatory, and so many dead letters: and they are certainly of too important signification to be thus considered. And I construe them on the principle that a devise of lands to a son, after the death of his mother, gives to the mother an estate for life by implication.

I am therefore of opinion, that the decree is correct, and ought to be affirmed; and (the decree being interlocutory) the cause remanded to the Superior Court of Chancery of the District of Williamsburg, for farther proceedings to be had therein.

By the majority of the Court, decree affirmed, and cause remanded for farther proceedings. 
      
       3 H. & M. 199—217.
     
      
       Grymes v. Pendleton 1 Call, 54.
      
     
      
       See Acts of 1789, c. 9.
     
      
       See 1 T. R. p. 52.
     
      
       See Tucker's Blackstone, vol. 3, App. p. 28 — 42, i or the reasons a,t large upon which this opinion is lounded.
     
      
      In the two decisions in the case of Tomlinson v. Dilliard, &c.
     
      
       6 Bac. 380.
     
      
       2 Wash. 300.
     
      
       1 Call, 54.
     
      
       Ibid. 55.
     
      
       2 H. & M. 557, and note (2), 558.
     