
    Langdon Cheves, Ex’or of Anne Lovell, and M. E. Cheves, his Wife, v. Edward Richardson, Joseph Dallas, and others.
    Testatrix devised to her grand-niece, viz: “one thousand acres of land, to be taken off my plantation called Good Hope, to be run off conveniently adjoining the place called Cave Hall late the property of W. C., which said plantation, called Cave Hall, shall be purchased and paid for out of my estate, and shall be given to my said grand niece, making in all fourteen hundred acres:” — Held, that this was a devise of the whole plantation called Cave Hall although containing one thousand five hundred and fifty acres, or its equivalent; and the executor was ordered to make the purchase for the benefit of the devisee. [*302]
    This bill was filed for the purpose of partition, distribution and settlement of the estate of Mrs. Anne Lovell, late of St. Matthew’s Parish, who, by certain settlements entered into between her husband and trustees on her part, was authorized by deed or will, to dispose of her estate. The only point in dispute was the construction to be given to the following clause:—
    “ Item. — I give and bequeath, limit and appoint to my grand-niece, Rachel Susan Bee, one thousand acres of land to be taken off my lower plantation, which is called Good Hope, and purchased of Joseph Manigault, situate on the half-way swamp The said thousand acres to be run off conveniently adjoining the place called Cave Hall, late the property of William Caldwell, which said plantation, called Cave Hall, shall be purchased and paid for out of my estate, and shall be given to Rachael Susan Bee, my grand *niece aforesaid, making in all, fourteen hundred acres; provided the said Rachael Susan Bee be living at L the time of my death.”
    Rachael Susan Bee survived the testatrix; and it was referred to the Commissioner to report whether the said plantation called Cave Hall, could be purchased, and at what price — what quantity of acres it contained, whether the proprietor would sell four hundred acres thereof, and in case he will not, to report the value of four hundred acres; and which would be more advantageous to the devisee, (in case such a construction should be given to the will,) the specific purchase of four hundred acres, part of Cave Hall, or the payment by the executor of the value thereof.
    The Commissioner reported, “ That Cave Hall contained one thousand five hundred and fifty acres, of which seven hundred acres are supposed to be highland, and the remainder swamp. — (Santee.) That the price demanded for the whole tract, by Mr. Paul Warley, the owner, is two dollars per acre, or three thousand one hundred dollars, which the parties agree in thinking not an unreasonable price under all the circumstances of the case: and the Commissioner was of the opinion, that if the proprietor would divide the tract, and sell four hundred acres thereof, one thousand dollars would be a reasonable price for the same : but the proprietor refused to do so, and this refusal, the Commissioner supposes, makes it unnecessary to consider the last point referred, vi^. : which would be most advantageous to the devisee, the specific purchase of the quantity of four hundred acres, or the payment by the executor, to the use of the devisee, of the reasonable value of the last-mentioned quantity.” Upon the report coming before the Chancellor, it was contended by the executor, that it was the intention of the testator only to give four hundred acres of Cave Hall, which, added to the one thousand acres of Good Hope, the adjoining plantation, would make only fourteen hundred acres.
    For Miss Bee, it was contended that a devise was a common-law conveyance : that this, in Chancery, would be considered as a devise of Cave Hall plantation; and though the testatrix might have been mistaken as to the number of acres, still the words would carry the whole plantation : four hundred acres, part of Cave Hall, was not a compliance with the will, which directs the purchase of the “plantation called Cave Hall, late the property of William Caldwell.”
    #oni-| *De Sausstjbe, Chancellor. The question made and submitted ■J for the judgment of the Court was, whether Miss Bee, the devisee, was entitled, under the will of Mrs. Lovell, to have the whole of the tract called Cave Hill purchased for her, or only four hundred acres thereof, or the value of the same, if it cannot be purchased. There is no rule more clear or fixed, than that the intention should prevail in the construction of wills as well indeed as of contracts.
    The great qualification to this rule is, that the intention of the devisor or donor, shall not prevail against some known and clear rule of law, founded in the general policy of the country, such as the creation of a perpetuity.
    On reading the will of Mrs. Lovell, it is obvious that it was her intention' to make up a plantation of fourteen hundred acres of land for her grand-niece, Miss Bee; she says so in terms, for she declares that one thousand acres shall be severed from her plantation called Good Hope, and set apart for Miss Bee, and that the adjoining plantation, called Cave Hall, shall be purchased, which, added to the said thousand acres, makes in all fourteen hundred acres for her said niece. It appears that she was mistaken as to the quantity of land in Cave Hall tract, which actually contained fifteen hundred and fifty acres, and not four hundred acres, as she supposed. The words of the devise were there used under a clear misapprehension of a fact, and the question is, Shall we give effect to the distinct intention, or to the misapprehension ? I think we are bound to give effect to the obvious intention. As, however, the owner of Cave Hill will not consent to sell four hundred acres of that tract, it will be .proper to allow Miss Bee an equivalent in money.
    It is therefore ordered and decreed, that the sum of one thousand dollars, as reported by the Commissioner to be the fair equivalent for the said four hundred acres, be paid or invested by the said executor of Mrs. Lovell, for the benefit of Miss Bee, the devisee, so as to be a productive fund for her.
    The counsel for Miss Bee now moves to reverse the decree, on the ground that his honor was wrong in not directing the executor to purchase the whole of Cave Hall plantation.
    
      M’Cord, for the appellant,
    cited Chamberlaine v. Turner, Oro. Car. 129; Gascoigne v. Barker, 3 Atk. 8; Wrotesley v. Adams, 1 Plow. 191; 8 East. 163; Sugden 145; Whitaker v. Whitaker, 4 Bro. Ch. Ca. 31; 2 Atk. 369 ; Broome v. Monk, 10 Ves. 591, 618.
    * Gregg, contra,
    cited 2 Swinb. 484; Shep. Touch. 623; 2 Roper r;!;Dno on Leg. 328, 330; Philips v. Chamberlaine, 4 Ves. jr. 51; Hot- L ham v. Sutton, 15 Ves. 319 ; Milner v. Milner, 1 Ves. Sen. 106 ; Constantine v. Constantine, 6 Ves. 102.
   Harper, J.

There is no question of the rule, that in construing wills we must, if possible, give effect to the intention ; but the intention must be collected from the words of the will itself, and not from any conjecture of ours as to what the testator may be reasonably supposed to have meant. It sometimes happens that contradictory or inconsistent instructions are expressed in the same will, and then it has been the rule to give effect to the general or predominant intention, even at the expense of that which is particular and subordinate. The words of the testatrix are, that the “ said plantation, called Cave Hall, be purchased and paid for out of my estate, and shall be given to Rachael Susan Bee, my grandniece aforesaid.” Now, if it had stopped here, words could not more clearly express the intention to give the entire plantation called Cave Hall. Then follow the words, “ making in all fourteen hundred acres.” If there is anything ambiguous, it is in these latter words. I think this comes within the rule expressed by Cruise, in his treatise on real property, treating of devises. “With respect to additional words, the Courts appear to have always been disposed to adopt the rule established for the construction of deeds, namely, that where there is a correct and specific description of the property devised, a mistake in any additional words will have no effect; but where the first description is merely general, these additional words will be considered either explanatory or respective according to the intention of the testator.”' One of the cases referred to is that of Chamberlain v. Turner, Cro. Car. 129, in which the devise was of “ the house or tenement wherein Nichols dwelleth, called the White Swan.” The jury found that William Nichols occupied the alley of the said house, and three upper rooms, and that divers other person's occupied the garden and other places in the said house. It was held that the terms “ house or tenement, called the White Swan,” necessarily implied the whole house; and the words, “ wherein William Nichols dwelleth,” did not abridge the devise. Now the words, “the plantation called Cave Hall, late the property of William Caldwell,” seems to me to be as certain and specific as “the house *or tenement called the White gWan.” In Gascoigne v. Barker, 3 Atk. 8, the devise was of “all my laiids, tenements and hereditaments, in possession or reversion, freehold and copyhold, in the parish of Chiswick or elsewhere in the county of Middlesex, (which copyhold landh I have surrendered to the uses of my will).” There was part of the premises copyhold not surrendered, and the Chancellor held that this did not pass. He adds, however, that if the premises had been devised by name, “ messuages with the appurtenances called the King of Bohemia’s Head,” the whole would have passed, and he would have held the subsequent words to be only a mistake in the description. In Banks v. Denshire, 1 Ves. 63, Lord Hardwicke says he determined the case of Gascoigne v. Barker with great reluctance, and chiefly on the word “which.” In that case the devise was of “ all and every freehold and copyhold lands, tenements and hereditaments, (having surrendered the copyhold to the uses of my will),” &c. The testator had two copyhold estates, one of which he had not surrendered; but it was held that both passed.

The principle is explained as applied to a deed, in Wrotesley v. Adams, Plow. 191, that if there be a certain description in the first instance, any other description is superfluous. That was a lease by a prior and convent of “ all their farm in Brosley, &c., now in the tenure and occupation of Roger Wilcox.” It is said that this word (farm) “ is a capital messuage and all the lands lying to it, and signifies the chief house and lands belonging to it, and not a common house; and so has a certainty in itself. And when it goes further and says, in the tenure and occupation of Roger Wilcox, this is of no effect; for, if it was not in his tenure and occupation, yet it should pass, for there is a certainty in the thing demised, viz. : the farm in Brosley.” So, if I make a release of White Acre in Dale, which I have by the descent on the part of my father, and I had it not by descent on the part of my father, but otherwise, yet the release is good.” If this had been a conveyance of the plantation called Cave Hall, further described as containing four hundred acres, no doubt the whole must have passed.

The testatrix clearly expresses her intention to give the whole of Cave Hall plantation to her grand-niece ; but she was mistaken in its quantity. She further expresses her intention to make up for her a plantation of fourteen hundred acres. It was supposed that complete effect could be given to the intention by purchasing *four hundred acres of the Cave Hall plantation. But this would be speculating on intention. What part shall be purchased ? That contiguous to the one thousand acres devised ? But the contiguous part might be differently selected and arranged, so as to vary greatly in value. Suppose there are valuable buildings and improvements on the land, the testatrix certainly contemplated that the devisee should have these, and may have made the devise chiefly with a view to them. But suppose them 1o be so distant from the one thousand acres as not to be included in the contiguous four hundred acres. But the four hundred acres can not be purchased. The object of the testatrix was to make up what she regarded as a suitable plantation for her grand-niece. Are we likely to approach that intention more nearly by giving her a thousand dollars in money, rather than the whole of Cave Hall plantation ? That can only be matter of guess. It is better to adhere to rule than thus to speculate on intention.

The decree of the Chancellor is therefore reversed, and it is ordered and decreed that the executor proceed to complete the purchase of the entire plantation called Cave Hall, which shall be conveyed to the devisee, Hachel Susan Bee. Costs to be paid out of the estate.

Johnson, J., and O’Neall, J., concurred.  