
    Edward W. North, William F. Purse, and Edward North, Executors of Wm. Wightman, deceased, vs. Jacob R. Valk, and Wife, and others.
    No distribution, or right of representation among collaterals, is allowable farther down than brothers’ and sisters’ children. The grandchild of a brother or sister is excluded.
    Persons in this State do not inherit by the common law, but by the direct force of the statute of distributions; therefore, the child of a deceased alien brother or sister, who is naturalized at the time of the descent cast, may inherit real estate under that statute, notwithstanding the alienage of the parent of such child.
    Land directed by the testator to be sold arbitrarily, and at all events, shall be regarded, in equity as personal estate; but if directed to be sold for specific purposes, and they fail, it will go to the heir as real estate. Or if after such purposes’are accomplished a surplus remains undisposed of, the heir will be entitled to it.
    Where the real and personal estate is directed to be sold for the payment of debts and legacies, and no disposition is made of the residue, the personal estate is first applicable; if it should prove sufficient, the real estate’ retains its character, and will descend in the manner indicated by the statute of distributions ; so also, of any surplus that might remain, if the sale of the land, or part of it, became necessary.
    When a promise of future marriage is made between parties living in a state of concubinage, the continuance of that intercourse will not transform the connexion into marriage.
    BEFORE HIS HONOR CHANCELLOR HARPER, AT CHARLESTON, JUNE, 1837.
    William Wigbtman, deceased, who was in his lifetime possessed of a large real and personal estate, by bis will bequeathed various legacies to a considerable amount. The concluding clause of the will is as follows : “ Lastly, for the purpose of paying my debts, and discharging the aforesaid legacies, I direct all moneys owing to me to be called in, and all my estate, real and personal, in this State, and in Georgia, or elsewhere, to be sold by my executors, or by such one or more of them as may prove my will in the State, where the property to be disposed of may be.”
    The testator makes no disposition of the residue of his estate, which is likely to be considerable. He appoints the complainants his executors. The questions now made to the Court, respect the disposition of the residue.
    The testator, at the time of his death, left a niece, the defendant, Sarah Valk, (the daughter of a deceased sister, and wife of the defendant, Jacob R. Valk,) who is a naturalized citizen of this State; another niece, Mary Gyles; also the daughter of a sister, residing in London, who is an alien; and a grand nephew, John A. Gyles, the grandson of a sister, who is a natural born citizen of this State. The defendant, named in the bill as Elizabeth Bath, claims to have been the wife of the testator, and her sons, the defendants, William and John Wightman, to whom she has released all her interest in the estate, to be his legitimate children.
    The questions are, whether the defendant, John A. Gyles, is entitled, under the statute of distributions, to take a share of the personal estate with the defendants, Sarah Valk, and Mary Gyles, and a share of the real estate with the former. He also claims to be exclusively entitled to the real estate, as being a natural born citizen, contending that Mrs. Valk, a naturalized citizen, cannot derive title through an alien ancestor. The question is made, whether the real estate directed by the testator to be sold, must not be regarded by the Court as personal estate. The last question is whether the evidence is sufficient to establish a marriage between the testator and the defendant, Elizabeth Bath, so as to entitle her sons exclusively to his estate as next of kin, and by virtue of her assignment.
    The first question was long since determined against the claim of the defendant, John A. Gyles, by the case of Poaug ads. Gadsden, 2 Bay, 298, which, I believe, has been re: gaxded as fixing the law ever since. As the point, however, has been mooted with some degree of zeal, I shall assign some of the reasons which would induce me to come to the same conclusion, if the question were an open one.
    Virtually the same question seems to me to have been decided by repeated determinations of the English Courts. Our statute provides, that “ the children of a deceased brother or sister, shall take among them respectively, the share to which their respective ancestors would have been entitled,” &c. The English statute directing that if there be no wife or children, the estate shall be distributed among the next of kin, or those wrho legally represent them, provides, “that there be no representation admitted among collaterals after brother’s and sister’s children.” Every argument used to show that under our Act, the word “children” is capable of, and ought to receive, a signification more extended and beneficial than the ordinary one, will apply under the English statute. The very question whether under the statute of distributions, the grandson of a brother would take along with the daughter of a sister, was determined in Pett’s case, (1 P. Wins. 35,) reported as Pett vs. Pett, 1 Salk. 250.
    The same doctrine is recognized and settled in Boioers vs. Littlewood, 1 P. Wms. 594. See also Beeton vs. Barking, 2 Vern. 168; Maw vs. Harding, 2 Vern. 233, and Carter vs. Crawley, Sir T. Raym. 496. Following the English statute as to the limiting of the right of representation, I must suppose our Legislature to have used the word “ children” in the established sense which the laws had attributed to it. Indeed, in the cases referred to, it seems not to have been so much contended that it was capable of a more extensive meaning, as that when the next of kin, to take, were brothers or sisters to each other, then children might come within the terms of the act.
    . It is true that in some cases, the word “children,” used in a will, had been construed to extend to grandchildren; but never unless the testator has clearly explained his intention to give it that meaning, as in Boyle vs. Hamilton, 4 Ves. 437; or where there are no children to take under the description : as it is said in Crook vs. Broolceing, 2 Vern. 108, that if there had been no child, the grandchildren might have taken under the devise to children. “ Children may mean grandchildren, where there can be no other construction; but not otherwise.” — By the Master of the Bolls, in Reeves vs. Brymer, 4 Ves. 698.
    It is plain, that in the first category of the act relative to the intestate’s own children, the word is used in the common sense. When other lineal descendants are meant, they are expressly named. How should I conclude that the word is taken in a different sense in a different part of the Act. This is the obvious and popular, as well as the legal sense of the word. It is argued that the use of the word. “ issue” in the Act of 1797, providing for the case of an intestate’s leaving father or mother, and brothers and sisters, serves to explain the sense of the Legislature in using the word “ children” in the Act of 1791. But if the construction of that Act had been rightly settled before the passing of the Act of 1797, the latter act cannot alter it in a particular, to which its provision does not apply. I have no doubt, however, that construing the Act in pari materia, and as one Act, the sense of the word “ issue” will be restricted to the sort of issue before spoken of i. e. children: in analogy to the construction of wills, when property is limited to children, and then limited over for want of issue. Doe vs. Lyde, 1 T. B. 593.
    The claim of John A. Gyles to inherit the real estate, exclusively, is next to be considered. Thé argument is that at common law the heir cannot derive title through an alien ancestor, and that the Statute 11 & 12 W. 3, c. 6, providing that subjects may inherit or make title through an alien ancestor, applies only to natural born subjects. But persons in this State do not inherit by the common law, but by the direct force of the statute. The very word heir has a different meaning with us from what it had at common law. I refer to my opinion in the case of Barksdale vs. Bona, 2 Hill’s Chancery, 416, for the reasoning to show, that the various canons of descent have no application under our statute. The statute expressly declares, that in the case which has occurred, the estate shall go to the children of deceased brothers or sisters. Taken literally, this would seem to include all children of brothers or sisters, whether alien or native. By considering the objects of the act, however, that it was intended to distribute estates according to propinquity of blood, and presumed nearness of affection, and bad no relation to the policy of tbe State, which forbids unnaturalized foreigners to hold land, we are enabled to make an exception to the latter and exclude such foreigners. But when there is no disability at the time of the descent cast, but the party is fully competent to take and hold lands, what reason can we imagine for extending the exception ?
    The defendant, Mary Gyles, of London, being still an alien, is excluded from any share of the real estate. The defendant, John A. Gyles, being altogether excluded, has no interest in the question whether the land directed to be sold shall be regarded as real or personal estate. If the claim of the defendants, John and William Wightman, be not valid, that only concerns the "defendants, Sarah Yalk and Mary Gyles. It was intimated by one of the counsel for the defendants, Yalk and wife, that they were content to regard it as personal estate, so that Mary Gyles might come in equally. I did not understand distinctly that a decree to that effect was consented to. Indeed, I should not be at liberty to accept such a concession, as it concerns the inheritance of a feme covert, whom it is the business of the Court to protect, and for whose benefit it always acts. The defendants will be at liberty to act as their kind or liberal feeling may prompt; but she can only divest herself of her inheritance according to the forms prescribed by law.
    The general rule is well known, that land, directed by the testator to be sold, shall be regarded in equity as personal estate; but this is to be taken, subject to various qualifications. If the land is directed to be sold, as the cases express it, out and out, as if there were a general arbitrary direction to sell, without any specification of the object of the sale, or of the purpose to which the money was to be applied, this would be evidence of the intention to convert the land into money in all events; but if it be directed to be sold for certain specific purposes, and the purposes altogether fail, as if it be for the payment of debts, and the testator afterwards pays off his debts in his lifetime, there the lands will go to the heir as real estate. Or if, after accomplishing the specified purposes, a surplus of the fund should remain undisposed of, a trust in this subject, it is said, results for the heir. The doctrine will be better understood by referring to the cases. These are referred to, and the doctrine explained by Mr. Cox, in bis note to Qi'iise vs. Barley, 3 P. Wins. 22. In the principal case the testator devised real and personal estate to be sold, gave two hundred pounds legacy to bis eldest son, and directed the residue of the fund to be divided among bis younger children. The eldest son survived his father and died before the age of twenty-one years; and the legacy was held not to have vested; nor to have lapsed, so as to sink into the residue. As to this two hundred pounds, part of the fund, a trust was declared to have resulted for the beir-at-law. It was admitted in the case, that where an estate is devised to be sold to pay debts, if there be a surplus it shall go to the testator’s beir-at-law ; forasmuch as when the debts are paid, the trust is satisfied, and the motive of the testator for the sale of the estate is at an end; and the heir, if be pleases, on laying down the money for the debts, may take the estate himself. There is a class of cases to this effect, when land is devised to be sold for the payment of debts and legacies. If pecuniary legacies be given, and the residue disposed of, then, if some of the pecuniary legatees die in the testator’s lifetime, so that their legacies lapse, these shall sink into the residuum in favor of the residuary legatees, and- not go to the heir at law. The testator is supposed to have intended to convert the real estate into personal, in favor of the residuary legatees, and against the beir-at-law. Such was the case of Durour vs. Motteux, 1 Yes. 321. Such also was the case of Yates vs. Compton, 2 P. Wms. 308, in which it was admitted, that “ where one devises lands for the raising of portions for daughters, and the daughters die before they are marriageable, the lands ought not to be sold, but go to the beir-at-law; so, where the lands are devised for the payment of debts, and the testator himself lives to pay bis debts, in such cases there shall -be no sale.”
    Of this same character appears to be the case of Ogle vs. Cook, cited in Fletcher vs. Asliburner, 1 Bro. C. C. 501, and it is said, Mallabar vs. Mallabar, Ca. Temp. Talb. 79; Where the residue is disposed of, however, if one of several residuary legatees, who take as tenants in common, with no survivor-ship between them, dies in the lifetime of the testator, his lapsed share of the residue will go to the beir-at-law, so far as it is devised from the real estate. Such was the case of Achroyd vs. Smithson, 1 Bro. 0. C. 508. The testator devised all bis real and personal estate to be sold for the payment of debts and legacies, and disposed of the residue. Two of the residuary legatees died in the lifetime of the testator; and it was held, that so much of their shares as was made up of the personal estate should go to the next of kin, and so much as was made up of the real estate should go to the beir-at-law. Tbe subject is fully examined in the argument of Mr. Scott, who seems to have changed the opinion of Lord Tburlow. This was in conformity to the decision in Digby vs. Legará, reported by Mr. Cox, in the note before mentioned, as was also the case of Robinson vs. Taylor, 8 Bro. C. C. 586. In Spink vs. Lewis, 3 Bro. 0. C. 355, the testator devised real estate to be sold, and the money to be invested in the public funds for ten years, and at the end of that time be gave the same to bis next of kin. Tbe next of kin at the testator’s death, who was adjudged to be entitled under the devise, was a brother. He died before the end of the ten years, and the heir-at-law was held to be entitled to the fund as against the next of kin. See also M'Glelland vs. Shaw, 2 Scb. & Lef. 538.
    In this case the real and personal estate is directed to be sold, for the specific purpose of paying debts and legacies, and there is no disposition of the residue. The personal estate is first applicable for this purpose. If it should prove sufficient, it follows that the defendant, Sarah Valk, as against her co-defendant, Mary Gyles, will be entitled to the real estate. If it should be necessary to sell the real estate, or any part thereof, she will be entitled to any surplus that may remain after paying debts and legacies.
    I come next to consider the claims of the defendants, William and John Wightman. Much testimony was given on the subject of a cohabitation, which existed between the deceased, William Wightman, and the defendant, Elizabeth Bath, some years (from five to eight) previous to the year 1784, in which year be visited England; and it is agreed, that they never cohabited after bis return. Tbe testimony, on the part of the defendants, went to show that during the time mentioned, they lived together as man and wife; and treated and recognized each other as such; that he called her his wife; and that she was so reputed by their acquaintances, and went by his name. Some circumstances were much relied on. A silver hook was produced, on which was engraved the initials E. W. A Bible was produced with an entry in the handwriting of the deceased, of the birth of the eldest child born during their cohabitation, by the name of “Sally "Wightman;” and an entry from the register of the German Lutheran Church, of the baptism of the same child, as the child of “ William Wightman et ux. Elizabeth.” Wightman was admitted to have been present at the baptism. On the other side, evidence was produced to show that the deceased did not regard or treat Elizabeth Bath, as a wife, but as a mistress, and that she was so reputed among her acquaintances. And I think the testimony on this side entitled to great weight, though the witnesses are less numerous. The witness, Wm. Purse, from his greater intimacy, as well as apparently greater intelligence, seemed chiefly to be relied on. He is very much corroborated by the defendant’s witness, Ann Gourlay. If he is to be credited, it is certain that deceased and Elizabeth Bath did not regard or treat each other as husband and wife, nor were so reputed by those who knew them best. And this is not inconsistent with the credit of the witnesses on the other side. Many persons seeing them living together, and knowing them but slightly, might suppose, and call them man and wife, while those who had better means of information, might know certainly that they did not sustain any such relation. Nor is this inconsistent with the circumstances relied on by defendants. As I have said in the case of StringfeUow vs. Stringfellow, “ the parties might call each other husband and wife, as a sacrifice to decency, and treat each other as such, it being well- known to themselves, and every one else, that they did not consider each other as standing in that relation.”
    The giving of the engraved hook could amount to no more than this. Then 'as to the entry in the Bible, it is not uncommon for men to desire their illegitimate children to bear their own names. So, as to the baptism; a religious feeling, which an immoral course of life, by no means, always eradicates, might cause them to desire baptism for their child. But decency and propriety would forbid their presenting her for that purpose as the fruit of an illicit intercourse. Indeed, I suppose, that if it bad been communicated to the clergyman, be would have refused the rite, so long as they continued their course of life. The evidence against the marriage is much strengthened by the circumstances of their separation, and living apart for half a century, during which time she claimed none of the rights of a wife, nor assumed the name of -her supposed husband. If an actual contract of marriage-bad been proved, as in the case of Jewell vs. Magvjood, they could not by their own act invalidate it. But when their conduct is relied on to raise the presumption of an actual contract, could any circumstances tend more strongly to rebut such a presumption ?
    I have so far considered the case of these defendants apart from the testimony of Elizabeth Bath herself. This testimony must be taken with some allowance. Not that I regard her as discreditable. Apart from this connection there is no impeachment of her character. Her conduct, ever since its termination, was proved to have been unexceptionable, and her character respectable. She has been many years a memher of a religious society. But she must speak under the strongest bias, both on account of the interest of her children, and her own reputation; and would naturally, and perhaps unconsciously, color in the strongest manner every act or expression of the deceased, which she supposed would tend to extenuate her error, or raise her to the rank of matron; and if she did not wilfully suppress, would make little effort to recollect anything which might make against her pretensions. If the decision of the case depended on the weight to be given to her testimony, I should be inclined to send it to a jury. But I am satisfied that if the fullest credit be given to everything she has stated, the conclusion must still be the same. The whole of her testimony negatives the idea of any actual contract of marriage “joer verba de presentíany actual agreement, thenceforward, to stand to each other in the relation of husband and wife, which of itself, according to our decisions, constitutes a marriage. It is plain, from her testimony, and from all the circumstances of the case, that be never believed her to be bis wife, and that she never believed him to be her husband, and I cannot conceive of such actual contract under the circumstances. The repeated promises of future marriage, to which she testifies, up to the time of their final separation, when, as she states, he proposed to marry her if she would accompany him to England, are inconsistent with the notion of any executed contract.
    But, it is said, that if there be a promise of marriage, per verba de futuro, followed by carnal intercourse, this will constitute a marriage. There existed, however, in this case, the circumstance which also existed in the case of Stringfellow vs. Stringfellow. There is no doubt but that the connection was adulterous in its commencement. The witness states that her former husband, Bath, went away soon after the battle of Eort Moultrie, in 1776; and that she heard nothing of him until she heard of his death, some time after the capitulation of Charleston, in 1780. It appears from the church'register, that her first child was born in 1779. So that the connection must have begun a year or two after her husband’s departure, when she had no reason to believe him dead, or herself to be capable of contracting matrimony. Indeed, she does not allege that she was induced to enter into this intercourse by any promise of marriage. Then the case resolves itself simply into this question, whether, when a promise of future marriage is made between parties living in a state of concubinage, the continuance of that intercourse will transform the connection into marriage. Of this I cannot conceive. When carnal intercourse follows a promise of marriage, between persons who have heretofore had no such intercourse, the presumption may be reasonable and just, that it was induced by the previous promise, and intended to be in execution of it. But how can any presumption arise, when it is only a continuation of an already subsisting intercourse ? The only authority relied on, as seeming to support this position, is from Swin-bourne on Spousals, 121, that, though the parties having such intercourse, protest at the time, that it is not in execution of the previous promise, still, in spite of their disclaimer, it shall be held a marriage.
    I have not found this in any other authority, and it may, perhaps, be regarded as questionable. In the absence of explicit evidence, presumptions are made to establish a contract — to establish the assent of the parties’ minds; .but it seems singular, that suoh assent should be inferred, in spite of an express dissent. But taking it for law, and supposing the Ecclesiastical Courts to have established the rule in favor of chastity, that they will not presume a violation of it, but will convert the intercourse into marriage, in spite of the parties’ disclaimer, how can this apply when all pretension to chastity has already been abandoned ? It might be of dangerous consequence, that every careless promise drawn from an infatuated man, in the course of a criminal connection, by, perhaps, a licentious and artful woman, should have the effect of fastening her upon him as a wife. The tendency of this, I fear, would not be in favor of purity of manners, or the sanctity of marriage; but very much the contrary. The whole subject, I think, very much requires the interference of the Legislature.
    The complainants also claim the instruction of the Court, with respect to the claim of the defendant, John A. M’Dugal, as against whom the bill is taken pro confe-sso. The testator, in June, 1835, contracted to employ him as a manager of his plantation in Georgia, for three years, at a salary of one thousand dollars per annum, to pay certain travelling expenses, and the expense of the maintenance of his family. Complainants state, that defendant claims the performance of this contract, and submit whether they are bound to perform it. This is not a proper matter for this-Court. It is, of course, not a contract which the Court would decree the complainants,to perform specifically. If they think it .beneficial, or the. exigencies of the estate require it, I think they will be justified in performing it; if they do not think proper to do so, or if it should not be in their power to do so, the defendant will be entitled to any damage which he may sustain by the nonperformance. The measure of the damages will not, however, be the entire amount of the salary and emoluments for the whole three years, but according to the actual injury sustained. It would be unreasonable that the defendant should have the whole of this, and still be at liberty to engage in another employment, perhaps equally profitable. If he cannot agree as, to damages, the defendant must bring his action at law, in which they will be assessed by a jury. It is ordered and decreed, that the complainants proceed to administer the estate of their testator, by paying debts and legacies out of tbe personal estate, and if any surplus should remain after such payment, they pay and divide the same equally between the defendants, Sarah Yalk and Mary Gyles; and if the personal estate should be insufficient for the payment of debts and legacies, that they proceed to sell so much of the real estate as may be necessary for that purpose, and if any surplus should remain of the proceeds of such sale, that they pay the same to the defendant, Sarah Yalk, and that they deliver to the said Sarah Yalk, possession of all the real estate which may remain unsold. Costs to be paid out of the estate.
    The defendant, John A. Gyles, appealed from the foregoing decree, and moved that the same might be so far modified, that one-third of the surplus of the personal estate after paying debts and legacies, should be decreed to be paid over to him; and one moiety of the real estate be ordered to be delivered, or the proceeds paid over to him, after paying debts and legacies, if a sale of the real estate should be necessary for that purpose. And in support of his appeal, he relied upon the following grounds :
    1st. That the use, in the Act of 1791, of the word ancestors, and not parents, as the correlative of children, establishes the true construction of the latter word to be issue, or lineal descendants ; whilst the omission in the Act of any provision, similar to that contained in the English statute of distribution, “ that there be no representation admitted among collaterals, after brother’s and sister’s children,” shows it to have been the intention of the Legislature, to avoid the harsh construction which had been given to that statute by the English courts, and to establish in this country a more rational rule, and one which better harmonized with the laws of natural affection and duty.
    2d. That the Acts of 1791 and 1797, being in pan-materia, must be taken and construed together; and the use of the word issue, in the latter act, be held to control and establish the sense of the word children in the former, by a legislative construction, which is binding, at least on all cases subsequently arising.
    
      3d. That under the true legal construction of the Act of 1791, the defendant, Jobn A. Gyles, is entitled to the same portion of the undisposed residue of the- estate, real and personal, of the testator, to which the father of the said defendant would have been entitled, if living.
    
      Baily and Dawson, solicitors of defendant, John A. Gyles.
    
      Petigru and Lesesne, complainants’ solicitors.
    Mazyck, Perronneau and Finley for defendant Wightman.
    Memminger, for Valk and Wife.
   Curia per Johnson, Ch.

This Court concurs with the Chancellor in bis circuit decree, and the motion is dismissed.

Chancellor Dunin, having been of counsel in the case, gave no opinion.  