
    Emma E. Seabrook vs. William Seabrook and others.
    
      Wills and Testaments — Devise to “ Heirs” — Descent— Widow — In t estacy.
    
    The testator in one clause of his will devised and bequeathed property to his wife and declared “ that the provision herein made by me for my said wife, shall be in lieu, and bar, and in full satisfaction of and for, all her dower and thirds of, or in all or any part of my goods and chattels, lands, tenements and heredita-ments, and whatsoever else she may in any manner claim and demand of, in, or out of, any of my estate, real and personal,” and by a subsequent clause he devised lands to his son for life, with remainder to his issue, and in default of issue, he declared that the said lands should u revert to his estate,” and he then devised the “ lands so reverting unto my own right heirs forever.” The son afterwards died without issue : Held, that the heirs of the testator took the reversion, not under the will, but by descent; and that the testator’s widow was not excluded by the willfrom taking her share of the reversion as an heir of testator.
    Where there is a devise to the testator’s c* heirs” they do not take under the will, but by descent.
    The testator’s widow is included under the term fright heirs” used in his will.
    A clause in the testator’s will declaring that the property therein devised and bequeathed to his wife, shall be taken in lieu and bar, and full satisfaction of her dower and thirds, and every other interest whatsoever, that she might be entitled to in his estate, does not exclude her from her share of property as to which the testator died intestate 
    
    BEFORE DARGAN CI-I., AT CHARLESTON,
    FEBRUARY, 1858.
    Dargan, Ch. The plaintiff is the widow of William Sea-brook, late of Edisto Island, and the defendants are the devi-sees and heirs at law of the said William Seabrook, and per-sous claiming by or under them. Among other dispositions of property in favor of his wife, (the plaintiff,) the testator gave and devised to her as follows : — “ And I further give, devise, and bequeath unto my said wife, for and during her natural life, the use and occupation of my said mansion house and residence, and of so much of my lands attached to the said mansion, as laid down in the survey of Major John Wilson, as she, my said wife, can plant with the slaves herein bequeathed to her; and on her death, the said mansion house, and so much of the land thereto attached as she may have used and occupied shall revert to my estate,” &c.
    In former proceedings instituted for the division and settlement of the estate of the testator, the tract of land on which was his mansion house, was set apart and assigned to the plaintiff for her share under the clause which has been quoted, and to her so.u, Robert Chisolm Seabrook, one of the devisees of the will. But no partition was made between them. They possessed, and used the whole tract in common, and harmoniously, until the death of Robert, which has recently occurred. Robert’s share of said land is now to be divided by sale or otherwise, among the persons entitled to the same, and it becomes necessary that the plaintiff’s share in the land should be divided and separated from that which was Robert’s. One of the objects of the present bill is to effect such division and separation. A commission has issued, and the Commissioners have made their return to the Court at the present term. The defendants have excepted to the return ; and the first question for the Court to decide is on that exception.
    The Commissioners have assigned to the plaintiff three hundred and fifty acres of the testator’s land near to the mansion house, and circumjacent. There is a navigable creek that flows by on one side of the tract, on which there is a steamboat landing not very distant from the housé. This landing is essential to the convenient use of the owners and occupants of the plantation. It is on that part of the tract which has been assigned to the plaintiff, but in testator’s life, and during the life of Robert, it was used for the whole plantation, as well that part which the Commissioners have assigned to the estate of Robert, as that which they have assigned to the plaintiff. There is on the part that has been assigned to the estate of Robert, a half-tide landing, which is inconvenient. There are roads, or ways, by which the landing near the mansiou house may and has been conveniently used for that portion of the tract which has been assigned to Robert’s estate. The question made is, whether the main steamboat landing is included in the land given by the will to the plaintiff?
    There is nothing expressly said in the will about the landing. The words are, “ so much of my lands attached to the said mansion house as laid down in the survey of Major John Wilson, as she, my said wife, can plant with the slaves herein bequeathed to her.” This is the whole language of the will bearing upon this question. She can not take it as planting land, though there is no way in which her three hundred and fifty acres of planting land can be conveniently laid off and meted out, that would not include the landing. I think she is entitled to take it as an appurtenance, necessary to the enjoyment of her estate, and so used by the testator under whom she claims. And on the same reasoning and facts, I think that the said steamboat landing near the mansion house is an appurtenance to the part of the tract that has been assigned to the estate of Robert C. Seabrook, it having been used in common for the whole plantation in the life of the testator, and since. The return of the Commissioners must be set aside so far as it gives the said steamboat landing to the plaintiff as her exclusive property. The decree of the Court is, that she have the said landing as an appurtenance to the tract of land which has been set apart to her under the testator’s will, to be used in common with the owners of the other part of the tract in which the testator’s mansion house is situate, and which has been assigned to the estate of Robert C. Seabrook.
    There is another question presented by the pleadings, which must be considered and decided. This is a question of construction.
    The testator gave to his son, Robert Chisolm Seabrook, on his attaining the age of 21 years, real estate for life, with a contingent remainder to his children, or issue, that should be living at his death, and in default of such children, or issue, the testator declared, that the property so given to his son, should “revert to his estate,” and he says, “I give, devise, and bequeath the share or shares of the said lands so reverting unto my own right heirs forever.” Not following the diffuse phraseology of the will, I have aimed to state the devise to Robert Chisolm Seabrook according to its legal effect.
    
    Robert C. Seabrook lived to attain the age of 21 years. The devise to him thereby became vested, Seabrook vs. Seabrook, McM. Eq. 201. He died on the day of November, A. D. 1852, without issue, and unmarried; and'the question now is, as to the disposition of the property which he left, and which he derived under his father’s will. The plaintiff claims one-third of the estate, to which, in my judgment, she is entitled in any view which may be taken of the case.
    I will in the first place suppose, that the testator’s devise of the reversion to his own right heirs is a valid testamentary disposition. The testator’s right heirs are his heirs general; those persons, in fact, upon whom his estate would, in a case of intestacy, be cast, by operation of law. I am satisfied with Chancellor Dunkin’s definition of the word heir, and with his opinions upon this subject, as expressed in his decree in Seabrook vs. Seabrook, McM. Eq. 206, 209. He says, “ the Court is unable to find any better definition of an heir than the person in whom real estate vests by operation of law on the death of one who was last seized. This law varies in different countries — in the same country at different periods— and in the same country in reference to different estates. By the Common Law, the father, or grand-father would be excluded. In England, the estate in general descends to the eldest son to the exclusion of daughters, and other sons. By.the law of South Carolina, a more equitable distribution, both of real and personal estate, is provided. In order to ascertain who is the heir, it is necessary only to enquire, to whom, by the law of the land, would the estate pass, in case of intestacy.” In the Court of Appeals, Chancellor Harper reserved his opinion on this point, but the doctrine does not seem to have met with dissent or doubt from any other member of the Court. And in the subsequent cases of Rochellevs. Tompkins, l Strob. Eq. 114, and Heyward vs. Heyward, 7 Rich. Eq. 289, the question was decided the same way, and the principle seems to be as well settled as it can be by the solemn decisions of the Court, so that, when the testator, William Seabrook, gives the reversion to his own right heirs, his wife, the plaintiff, is included.
    If the plaintiff is entitled to participate in the distribution of the reversion, as one of the heirs of the testator under the devise to them, in what proportion does she take ? In Tem-pleton vs. Walker, 3 Rich. Eq. 543, Collier vs. Collier, 3 Rich. Eq. 555, it was adjudged, that whenever by the terms of description in a grant or a will, it becomes necessary to resort to the statute of distributions to ascertain who are the objects of the donor’s or testator’s bounty — resort must also be had to the statute to ascertain the proportions in which the donees, or devisees are to take, unless a different rule of distribution is prescribed by the instrument under which the parties claim. Rochelle ys. Tompkins, 1 Strob. Eq. 114, and Heyward vs-Heyward, Jan. T., (Charleston,) 1855, are to the same effect-If the plaintiff is entitled to come in for a share of this rever-sionary estate under the devise of the testator to his own right heirs, she is entitled to one-third part thereof.
    But it is said, that the will precludes her from taking any thing but that which is directly given to her in the first clause of the will. In the concluding part of that clause, the testator thus expresses himself: — “ And I will and direct that the provision herein made by me for my said wife, shall be in lieu, and bar, and in full satisfaction of, and for all her dower, and thirds of, or in all or any part of my goods and chattels, lands, tenements and hereditaments, and whatsoever else she may in any manner claim, and demand of, in or out of any of my estate, real and personal.” ■ It must be remembered, we are at present discussing that view of the case, which would give to the plaintiff an interest in the reversion by the devise to the testator’s right heirs. And it would be an absurd construction to suppose, that the testator meant by an expression in the first clause of his will to exclude his wife from taking that which he gave her in a separate clause.' It would be a contradictory and unreasonable interpretation.
    But a better view of the case in my judgment, is to regard the limitation over by way of executory devise to the testator’s right heirs, as nugatory and void. He devised the estate to the same persons who would be entitled to take by operation of law. This is equivalent to the testator’s saying, “ I give the estate to the persons who will be entitled to it by operation of law in a case of intestacy.” What additional strength does this impart to the perfect title which the law gives under the circumstances ? By this language the testator declares, that he dies intestate, and leaves his estate to be divided according to the provisions of the statute of distributions; and to the statute, the parties claiming will be referred.. It is undoubted Jaw, that where a testator gives by his will the same estate to the same persons who would be entitled to take that estate by operation of law in case of an intestacy, the devise or legacy will be void, and the right of the party or parties entitled will be referred to the law of distributions and descents. If there be any variation between the dispositions which the will, and which the law makes in such a case, either in. regard to the persons who are to take, or the quantity of the estate, the title will be referred to the will. If the testator, in this instance, had given this reversionary estate to his right heirs with the exception of his wife, or any one, or more of his children, then, the other heirs would have taken under the executory devise. And the same result would have followed, and for the same reasons, if he had given the estate to such persons as would have been his heirs at common law. The description would have embraced a class of persons easily ascertained, and they would have been different from those who would be entitled by the Law of South Carolina. But this testator has given the estate to the identical persons, who would be entitled to take under the statute of distributions. The devise over to his right heirs is, therefore, void, and the testator died intestate, as to his reversionary interest in the estate given to his son, Robert C. Seabrook. It follows that the plaintiff, as widow, is entitled to one-third; unless she is barred, as is argued, by the provisions of the will.
    It is urged that the concluding passage of the first clause of the will which I have already quoted is a bar to any claim by the widow in her husband’s intestate estate. By what logic this position is sustained, it is difficult to perceive. There can not be a testacy, and an intestacy in regard to the self same property. There is no intermediate state. A man cannot by his will declare how his intestate estate shall be disposed of. That very declaration, if valid, makes the property cease to be intestate. Pie cannot effectively declare, that his heirs, or some one or more of his heirs shall not have his estate, unless he makes a valid disposition of it to some other person, or for some lawful object or purpose. If the will disposes of - the estate, that prevails; if the will does not dispose of it, the law steps in, and divides it according to its established and unvarying rules. This is all simple, plain, and well settled. Youngblood vs. Norton, 1 Strob. Eq. 128; Crosby vs. Smith, 3 Rich. Eq. 249; Pickering vs. Stamford, 3 Ves. 355, ib. 491. The estate is to be divided as in cases of intestacy, and the plaintiff, as widow, is entitled to one-third part thereof.
    There is one other question which I am to decide. This does not affect the plaintiff’s claim. Are the persons who were the heirs of ffm. Seabrook at his death, or the persons who would come within that description at the happening of the contingency upon which the estate reverted, entitled ? The Act of 1791 furnishes rules for the distribution of estates in fee simple, which the intestate was possessed of, entitled to, or interested in, in his or her own right, and stich real estate is given by the Act directly on the death of the intestate, to the persons designated according to the different classifications. The peculiar phraseology of the Act has been considered as furnishing a different rule of distribution as to the persons who are to take in a case like this, from that which- would prevail according to the English canons of descent. Accordingly, it has been decided in Hicks vs. Pegues, 6 Rich. Eq. 413, as it had been previously decided in Buist vs. Dawes, 4 Rich. Eq. 415, note, (a circuit decree,) that where the testator, Malachi Bedgegood, had given real and personal estate to his wife, Catharine Bedgegood in fee, but if she should die without leaving issue living at her death, over to William Vernon in fee, and William Vernon had died in the lifetime of Catha-rine Bedgegood, who afterwards died without leaving issue, the estate in expectancy or remainder to William Vernon, both as to the real and personal property, passed at his death to his heirs then living. That case cannot be distinguished in principle from this, in which William Seabrook died intestate as to an estate in reversion. And this is the judgment of the Court. It is ordered, and decreed, that a partition of the said land be made among the parties to this suit according to the principles of this decree.
    It is further ordered and decreed, that an account be taken of the rents and profits, the costs to be paid out of the estate to be divided.
    The defendants, William E. Mikell, George W. and Mary Ann Seabrook, and Mr. and Mrs. Legare, appealed upon the grounds:
    1. That the word “heir” is the correlative of ancestor, and includes essentially consanguinity in its meaning — “He to whom lands and tenements, by the act of God and right of blood, do descend of some estate of inheritance.”
    
      2. That the limitation, after the death of Robert C. Sea-brook, is not a vested, but a contingent limitation — not to the testator himself, but to those persons who might be his heirs when the contingency should happen.
    3. That the context of the will proves that the testator did not mean that his wife should take as one of his heirs, because he has used words of exclusion, and has declared his wish to limit the land in the line of his blood as long as the law will permit.
    4. “That the provision made by the testator for Mrs. Elizabeth E. Seabrook, his widow, did exclude her from'taking any part of the estate which might descend to, or be cast upon her by operation of law.”
    5. That if the limitation over of the share of Robert C. Seabrook, after his death, “be nugatory and void,” nevertheless the testator did not die intestate as to said share, but the same passed with his other residuary estate to his children, under the will, or under the codicil.
    6. That the rule, by which the widow could be entitled to any part of this share, notwithstanding the excluding clause of the devise to her being dependent upon the testator’s having made no disposition of it, cannot apply to defeat the residuary clauses of the will and codicil.
    
      Campbell, Petigru, DeTreville, for appellants.
    
      Memminger, Jervey and Wilkinson, contra.
    
      
      
         This extraordinary decision is certainly in conflict, as stated in the dissenting opinion, with wise maxims of the common law, and, as it is further intimated, is not so clearly right but that its logic may be assailed and its authority questioned. Though, it is said, that the result would be the same whether the testator be held to have died testate or intestate, as to the reversion given to his “ own right heirs forever,” yet the decision proceeds upon the ground, that as to that reversion, he properly died intestate, and it is held tobe a necessary and inevitable consequence of such a conclusion that the intestate reversion is distributable, under the law, among all the heirs ; and authorities, said to be conclusive upon these several points, are cited. Let us, with all respect for the confessedly high authority of the Court which decided the case, examine these points in the light afforded by the logic of the Court, the principles referred to, and the authorities cited.
      It will not be disputed, and no authority need be cited to sustain the position, that the whole will must be construed together; and that when a testator says, in one clause of his will, “ I devi&e and bequeath such and such property to my wife in full of her share of my estate,, and to be taken in lieu and bar of any interest whatever that she might otherwise be entitled to claim in my estate or any part thereof,” and by a subsequent clause devises a reversion to his a own right heirs forever,” it is precisely the same as if he had said, “ I devise the reversion to my own right heirs forever, except my wife, who is hereby excluded from all interest therein.” If such had been the language of William Seabrook’s will, it could hardly be maintained that the devise was invalid. Simpson vs. Hutton, Pickering vs. Stamford, and Hall vs. Hall, merely affirm that words of exclusion, similar in effect to those used by this testator, would not exclude an heir from his or her share of property as to which the testator had undesignedly died intestate, and they decide nothing more. Goodtitle vs. Pugh decides that where an ancestor has but one son, who is his only heir, his devise “to his right heirs forever, my son excepted, it being my will he shall have no part of my estate,” is senseless and void and no devise at all. Gordon vs. Blackman, and the other authorities cited (except the case from North Carolina, which will be adverted to hereaiter) have, with deference it is submitted, little if any thing to do with the point under consideration. Then as to general principles : It is conceded, as a principle of law, that where there is a devise to the testator’s heirs, without limitation, qualification, or exclusion of any one, they take not under tiie will, but by descent, and it may now be considered so xairly settled as to have become a rule of property, that the term “ heirs” simply and’without more, means such persons as are entitled to take under the statute of distributions; but it must at the same time be conceded, on the other hand, that these general rules are liable to be controlled and modified by the context of the will itself which is always the law of the case. Goodtitle vs. Pugh, shows that a devise to the testator’s “heirs,” except his son, who was his only heir, is no devise at all, and that the property passes by descent, and the principle of that decision would seem clearly to apply, where there is a gift to the testator’s “ neirs” followed by words excluding them ail. For instance, if a man having a wife and three children, A, B, and 0, who were his only heirs, were to devise his estate to his “right heirs,” without using words showing whom he meant by the term “ right heirs,” and then were to add “ except my wife and children, it being my will they shall have no part of my estate,” the devise would be simply absurd and void for want of persons to whom the term “ heirs” could apply. And Gordon vs. Blackman shows (and what else does it show) that if one having such a family, were simply to say, “ I exclude my heirs from all share of my estate, it being my will that my wife and children shall have no part thereof,” such words of exclusion would have no effect at all, for the unanswerable reason that there is no other person who, under the law, can take. But if such a testator were to devise his estate to his “ right heirs, except my eldest son A, it being my will he shall have no part of my estate,” it would be difficult to maintain that such a devise was not good, for it would be too plain that by “right heirs” the testator meant his wife and two children, B and C. And with the difference that he excluded his wife and not his eldest son, such seems, in effect, to have been William Seabrook’s will, so far as it relates to the reversion ; provided that in the previous clause providing for his wife, the word “herein” be held to apply to that clause alone, and not to the whole will. It is intimated, in the opinion of the Court, that such a construction would be unnatural, but with deference it is submitted that no other can be given to it. The testator clearly intended to dispose of his whole estate, and to leave nothing for distribution under the law of intestacy, and when he used the very general and comprehensive terms of exclusion which he did use, it is manifest he was contemplating his estate as a whole, and guarding against the possibility of his wife’s taking any portion of it, except that which he specifically gave her. either by misconstruction of his language, lapse, or other accident. The construction would be different if the testator had given to his wife properly in any other clause of his will. But he did not do so, unless it be held that by the term “ right heirs,” he mea-vt to include his wife. Such, it is true, would now (the meaning of the word “heirs” being settled — the word being a technical one, and the rule being to construe technical words in a technical sense) be the construction which the Court would put upon the word “ heirs,” in the absence of any thing in the will indicating a different meaning. But in this case we have the clause of exclusion •which indicates a different intention j we have also the important circumstance that the devise, in which the word" “ heirs” is used, is of a contingent reversion which might not fall in for distribution until the heirs of the testator were very different persons from those who were his heirs at the time of his death, and we have the context of the will itself, which exhibits an anxious desire on the part of the testator to keep the title of his lands in his own issue or descendants as long as possible. And, with deference it is submitted, that in construing the word “ heirs,” where a wife claims to be included within its meaning, but slight circumstances should be heldjo exclude her. In 1836, when this testator made his will, it is very questionable whether any man in the State, even the best lawyer in it, in drawing such an instrument, would suppose that “heirs” included the wife. The legal meaning of the term has but recently been settled, and even now not one person in five hundred, in conversation or writing, ever uses the word in its technical sense. "When devising his estate to his “ heirs” he no more has his wife in his mind, than he thinks of his neighbor's wife when he addresses to him the not unusual enquiry as to the number of “ heirs” he may be blessed with. The'word “heirs” having been held, in its technical signification, to include a wife — and properly to include her — -judgeshave no alternative but to hold her entitled under a devise to “heirs” where there is nothing in the will indicating an intention to exclude her, even though, in so holding, they almost always decide contrary to the real intention; but, it is submitted, it is so unusual for tes* tators to include wives within the meaning of the term, that, in construing wills, it is always safest to exclude them where there is but the slightest indication of such an intention.
      But does it necessarily follow, if the testator be held to have died intestate as to the reversion, that his wife was entitled to her thirds. William Seabrook left a wife and ten children, who were his heirs at law. If he had simply devised his estate to his right heirs, except his wife, whom he excluded from all share thereof, it has already been intimated that it would have been a good devise to the ten children. If he had made no devise at all, but had simply declared that his wife should have no share of his estate, according to the case from North Carolina the effect would have been the same ; and why should it not be so ? The law of distributions was intended to provide for cases where a man died without making a will; but it never was intended to provide that his will should not prevail. If a testator haying three heirs, A, B and C, were to say, “ I exclude A from all share of my estate and give it to B and G, equally to be divided between them,” that would be a good will beyond question. So, if he were to devise his estate to his heirs, except A, that we have already maintained would be good. If he were to say, “I exclude A from all share of my estate and leave it to descend to my other heirs under the law of distributions,” why should not that be a valid will. And if he were simply to say, “ I exclude A from all share of my estate,” the intention would bq precisely the same; and yet it is said that intention, could not prevail. And why? Because it is said there are two distinct systems — one for cases of testacy and the other for cases of intestacy — there can be no half way measure — the property must go under the will or it must go under the law— each heir takes his share in severalty and you can no more deprive A of his several share without giving it to another, than you can deprive A, B and C of the whole estate without a valid devise to some one else. This is plahsible, ingenious and sounds pretty, but its force is not felt. The law casts the inheritance upon A only when- no other provision is made by the will. But, it is said, unless the property is expressly given to some one else, no other provision is made; and it is assumed, that there is so great an antagonism between the law of testacy and that of intestacy, that the two cannot harmonize so as to permit a testator to exclude an heir and leave his property to descend, under the law, to his other heirs, with all the incidents that attach in cases of distribution. That such an antagonism exists in the nature of things, is not perceived. Human reason, and the law boasts itself to be the perfection of reason, would seem not to exclude a testator from the exercise of such a right, and it is not to be found, expressly declared, in the lex soripta. The simple and sensible proposition of the North Carolina case seems more consonant with the law, which leaves every one free to point out who shall, and who shall not, succeed to his estate, than the artificial logic by which the contrary doctrine is sustained.
      The most extraordinary part of the decision is that which ‘declares, that a testator cannot by any gift he may make and any words of exclusion he may use bar an heir from taking his or her share of the testator’s intestate property. For instance, if a testator were to give, as in the case before the Court, a large estate to his wife to be taken in bar and full satisfaction of her thirds or other distributive share of his estate, real and personal, and then were purposely to leave the rest of*his estate to go to his heirs at law and distributees, the wife may take the provision made for her by the will and demand her distributive share also. The cases which come nearest sustaining this part of the decision are Sympson vs. Hutton, Pickering vs. Stamford, and Hall vs. Hall; but upon examination they will all be found to proceed upon intention. They do not hold that a testator cannot exclude, but they merely hold that in each of the cases before the Court he did not exclude. At any rate such seems clearly to have been the ground of decision in Hall vs. Hall. The question in that case was whether the wife was excluded from taking her share of after-acquired lands. On the circuit, Chancellor DeSaussure put the decision expressly on the ground of intention; (2 McC. Ch. 299) and, for considerations stated, the Court of Appeals, putting the decision on the same ground, concluded “that the testator did not intend to exclude his widow from a participation in any after-acquired property,” (2 M’C. Ch. 307) his intention being only to exclude her from taking any further share of the property he owned at the time his will was made. ft.
    
    
      
      For a full understanding of the case see Seabrook vs. Seabrook, McM. Eq. 201, and for a copy of the will, the note at the end of the case.
    
   The opinion of the Court was delivered by

Johnston, Ch.

At the last sittings of this Court, as I understand, the two Chancellors who were for confirming the decree, concurred in an order for a .re-argument of the cause, in order to ascertain whether a majority of the whole Court might not be of the same opinion. This was, as they conceived, due to the importance of the cause, and to the fáct that there was in the present decree a slight departure from the judgment rendered here many years ago in the case of Seabrook vs. Seabrook, McM. Eq. 201.

The difference between this decree and that was trpon a single point. That case ruled that the widow of the testator was excluded from the reversion which fell in upon the death of Joseph E. Seabrook. This decree maintains, on the contrary, that she is not excluded from a share in the reversion which accrued to the testator’s estate on the death of another of his sons, Robert Chisolm Seabrook.

As I concurred in the decree in the former case, and now concur in this decree, it is very proper that I should assign the reasons which have led to a change of my opinion.

I certainly would be unworthy of the position I hold, if when I am satisfied I was wrong, and a fit occasion offers itself to retract my error, without injury to the rights of parties, I should for mere consistency’s sake, or from mere pride of opinion, pertinaciously adhere to the error.

Inasmuch as the decree in the former case is neither pleaded as a conclusive interpretation of the will, nor is there any. such ground taken in the appeal; nor has it been insisted on in argument by counsel, whose duty it was to refer the Court to authorities, I have not conceived it my duty to consider that decree as a bar.

It was held in the former decree, and is held in this, that the words of the testator by which he disposes of the reversion to his heirs, do not amount to a testamentary disposition, or convert the character of the subject from intestate, into testate property. He who directs his property to be distributed as the law would have distributed it, might as well hold his tongue, for he, in effect, merely wills to die intestate.

The Chancellor who delivered the decree in the former case, held, as has often been held since, that the widow came under the description of an heir ; and had it been necessary to resort to the will, instead of the statute of distributions for her right, would have sustained it. His only difficulty was that the testator had, as he conceived, barred her of the reversion.

The former decision is that she is barred; this decree is that she is not; and the governing question in the case is, is she barred or not barred ?

My opinion is, that she is not barred. There is this to be said; that when the former case was heard, we had fewer decisions upon the point in our own Courts than we now have: and were left more to the English and foreign cases than we now are. We had enough then, however, had it not been overlooked, to have led to a different result.

The case of Sympson vs. Hutton, more correctly stated by the Master of the Rolls, in Pickering vs. Stamford, 3 Ves. 335, than elsewhere, was to this effect: Thomas Addison, reciting in his will that his daughter, Jane, had married without his consent, gave her certain provisions out of his estate, real and personal, declaring them in full satisfaction of her child’s part of whatever more she might have expected from him, or out of his personal estate. He then devised to his wife; and gave her furniture and other things, declaring them in full of her dower, thirds, and any other claim at law, or in equity, or by any local custom, to any other part of his estate, real or personal. The residue he then gave to his other daughter; who died in his life time, leaving one child. By a codicil he subsequently gave a power over this residue to his wife: which she ineffectually executed; and the testator was declared to have died intestate as to it. Lord Thurlow held that the bars were ineffectual both as to the widow and the daughter Jane, and that the residue should be distributed as intestate, under the statute of distributions, one third to the widow, one third to Jane, and the remaining third to the child of the daughter, whose death had occasioned the lapse.

Then we had the case of Pickering vs. Stamford itself. The testator gave certain parts of his real and personal estates to his wife, declaring this provision a bar, full satisfaction and recompense of all dower or thirds which she could have or claim out of his real and personal estates, or either, or any part of them. After other provisions, he gave the residue to his executors, for their own use, in the first instance, but afterwards by codicil directed them to dispose of it in charities; and part was accordingly applied in the founding of a school. Part of the residue had been loaned out on mortgage and other real securities ; and it having been decided that the bequest of such portions to charitable uses was void under the statutes of. Mortmain, the next of kin brought their bill for an account, as if the property were intestate. The account was ordered. In a contest between the widow and the next of kin, it was decided that the widow was barred of any right in the subject. But upon a petition for a rehearing, the same judge, upon examination of the case of Sympson vs. Hutton, reversed his decision, and let her in.

We had then the case of Goodtitle vs. Pugh. It is sometimes quoted in such a manner as to render it difficult to find it. It is in 3 Browns Parliamentary Cases, 454, Tomlin’s edition, but not in the other editions of Brown. It is also particularly stated by Sir Wm. Grant, in Cholmondely vs. Clinton, (2 Merival, 348,) under the style of Doe ex dem. Baily vs. Pugh.

The testator, Calvert Benn, declares as to his personal .estate: “My son shall have no power to handle any of my money, or have any thing to do with any of my goods and chattels of any kindand otherwise disposes of his personalty. Then as to his real estate, he thus directs: “ As to my real estate, after the death of my wife, I give and devise to the eldest son of my son, begotten, or to be begotten, all my estate in London and Middlesex, for his life,’’ &c., to “the'second, all my estates in the County of Hertford, for his life,” &c., “ and so on, in the same manner, to áll the sons my son may have. If but one son, then all the real estates to him for life. And for want of heirs in him, to the right heirs of me, Calvert Benn, the testator, forever, my son excepted, it being my will he shall have no part of my estate, real or personal.” _

■Soon after the testator died, leaving, besides his son, his widow and three daughters, and no other issue.

Wm. Benn, the son, conveyed to Pugh, and died, never having had issue, and the action was by the daughters, the widow being dead, against his alienee.

These facts being found by special verdict, the Court oi Kings Bench gave judgment for the plaintiffs.

The case came before the House of Lords and was argued, and Lord Thurlow propounded a question for the opinion oi the Judges: “whether any person, and who, took any, and what estate, under the will mentioned in the special verdict, by way of devise and purchase.” And the unanimous opinion of the Judges being that no person so took by devise and purchase, it was adjudged that the judgment of the King’s Bench be reversed.

We had also our own case of Hall vs. Hall, (2 McC. Ch. 269.) Ainsley Hall, the testator, after making provision, among others, for his wife, out of his real and personal estate, desired by the twenty-seventh clause, “ that the provision made by his will for his wife, should be taken in lieu and bar of all claim of dower, inheritance, or any other claim on her part.”

He afterwards purchased real estate; as to which he died intestate; leaving his widow, a brother, and children of a brother, surviving him.

In a contest which arose in this case between the widow, and these other distributees, it was contended by the latter, that she was excluded from her share in this intestate real estate. But the Court unhesitatingly held that she was not harred or excluded.

Now these cases constitute very strong authority for the present decree, and in opposition to the former decree.

I know that it was urged against the bar in Pickering vs. Stamford, and in Hall vs. Hall, that a bar which might be good in other circumstances, should not be allowed when the intestacy is undesigned, or occurs by uriforseen events, and the argument affected the mind of the Court. It was an appeal to the supposed intention of the testator, that in the particular events that have occurred, he would not have declared the bar. But there is less in such an argument than at first view seems to exist. There are but two systems under which the property of deceased persons can fall; the law of testacy, and the law of intestacy. As, on the one hand, a will, properly drawn, will take in and dispose of property not in the contemplation of the testator, or even unknown to him, and, not improbably, in many cases, contrary to what his particular intention would have been had he contemplated the property when he drew his will: — why, on the other hand, should property rendered intestate, by accident, be diverted from the code under which it falls, or be modified under its operation, by conjecturing, that under the circustances, the testator would have so dealt with it ? Besides, it is to be observed, that in all cases of partial testacy, the subjects omitted in the will, are not to be regarded always as strictly intestate, as respects the intention of the testator, in the same sense as they might be where there is a total intestacy. We have an example of this doctrine as respects advancements in Snelgrove vs. Snelgrove, (4 Des. 214.) A man may provide for matters of primary importance in his view, hesitating about carrying his will further, or designedly leaving out other matters ; or he may provide for future contingencies as far as he thinks he can look into the future; and if his provisions miscarry, no other man can tell, what, in that contingency he would have done, unless he tells in his will; a supposition of his ability to do which, is by the way, absurd in itself; since if he had foreseen the contingency it would have been no contingency to him. As to things unforseen there can in the nature of things be no intention.

But-in this case of Hall vs. Hall the testator knew, or must be presumed to have known the law; and that his after-acquired land could not pass under his will; and there was nothing accidental in the case.

And as to Goodtitle vs. Pugh, there is no intimation in this case that surprise or accident had any influence on the decision. It was apparent on the will, that the father designed to cut off the son. The Court determining in its own mind that this could not be done while the estate was not given to others, enquires was such a gift made, and upon being certified no such gift had been made, determines in his favor. The principle of the decision was the estate must go under the will or under the law — one or the other — there was no half-way measure.

But in addition to these cases we have many others, decisions made here since the former decree of 1841; decisions which have fixed the principle in our jurisprudence so deeply that it would uproot the law of property to depart from them; from deference to this case and former judgment in it.

We have Gordon vs. Blackman, (1 Rich. Eq. 61,) in which the testator attempted to cut off all his kindred, but in vain, as the Court declared, unless he gave away the property for some lawful purpóse. '

And we have Youngblood vs. Norton, (1 Strob. Eq. 122,) in which the principle is announced, that so far as a man neglects to make a will, the law of intestacy must prevail; and so strongly was this principle applied, that it was held he could not even regulate the value of advancements except by testament. The same doctrine had governed in Young vs. Lorick, and Sheppard vs. Sheppard, cited in that case.

We have, also, Crossby vs. Smith, (3 Rich. Eq. 244,) where the testator attempted the extraordinary measure of giving to his children, and then declaring that their children should not inherit, from them; but the Court put down the attempt, not as foolish, but as unlawful.

I could quote other cases, but surely it is unnecessary.

An analogous principle prevails in cases of lapse. See Cook vs. Silly, 3 Atk. 573.

But, against all this, we are referred to an opinion delivered in the case of Hoyle vs. Stowe, (1 Dev. Rep. 323, N. C.) The Ch. J. in that case says: “ It is equally true, that the mere exclusion of the heir by the woids of the will, however express or direct, will not be efficacious to destroy the succession. There must be a disposition to some other person, capable of taking, because in the very nature of inheritances, the heir takes whatever is not given away. Manifestly, however, this rule can apply only where there is a single heir.” “When there is a class of heirs the exclusion of one leaves others who may take,” &c.

But in these observations, it is forgotten that when there is a plurality of heirs, they do not take jointly but severally, each his own share, or proportion ; and, in principle, the share of one can no more be taken from him, though only a part, and not the whole of the estate, without giving that share to others, than the Whole can be taken from a single heir without the same condition.

But the principle of the cases in England, such as Pickering vs. Stamford, and Sympson vs. Hutton, and other cases, is also overlooked. These are cases of intestate personalty, it is true, but the personalty was distributable among a plurality of persons, and in different proportions, just as our estates, whether real or personal, are distributable by statute; and yet we do not find that the attempted bar of one threw the share of that one to the others. The observation of the Ch. J. is also pointedly opposed by Hall vs. Hall.

Hitherto I have considered the disposition of this reversion in the light of intestacy. But, before quitting this aspect of the case let me -remark, by the way, that the argument at the bar that dower and .thirds of real estate are always convertible, and when dower is barred, thirds is also barred, is not precisely true. The qubject of intestacy here is a reversion, in which there is no dower, (2 Leigh 29, Blow vs. Maynard,) yet will it be contended that such an interest admits of no thirds? Buy I return to the observation I intended to make, before this digression. I will now consider the will as operating on this reversion. If it does the wife takes among the other heirs mentioned, as a designated person, and if she does, the declaration in the prior clause that what I háve herein given her shall be a bar, can only apply to the provision in the latter clause upon the supposition that by herein the testator meant the. provision made for the widow in the clause containing the bar, and not the provision made for her in the will — a very unnatural construction — which holds out the testator as intentionally in advance, barring the gift he intended, at the time, to make in a subsequent part of the instrument.

That portion of the decree which relates to the right of way, was decided at the last argument.

It is ordered that the residue of the decree be affirmed, and the appeal dismissed.

Warbiaw, Ch., concurred.

Dunkin, Ch., dissentiente.

The decree of the Circuit Court commences with the statement that the plaintiff is the widow of William Seabrook, late of Edisto Island, and the defendants are devisees and heirs at law of the said William Seabrook, and persons claiming by or under them.” The Chancellor then proceeds to consider the two important clauses recited in the decree and the rights of the testator’s widow under those provisions. Some twenty years since the proper construction of William Sea-brook’s will in reference to these rights had been subjected to the adjudication of this Court in a suit between (substantially) the same parties as those now before it. To the decree made in that cause, which is reported McMul. Eq, 201, the Chancellor particularly adverts, and while recognizing'and approving some of the principles therein announced, he arrives at a different conclusion as to the construction of the testator’s will. He ruled that in the event, which had happened, the widow of the testator (the plaintiff in this cause) was entitled to one third of that portion of the testator’s estate which had been devised to her son. In the original cause it had been adjudged that on the happening of events which, we all agree, were essentially the same, the testator’s widow took no interest in the property embraced in this devise. That inquiry had been a leading question in the cause. From the decision of the Circuit Court, unfavorable to the claim of the widow, an appeal was taken by Mrs. Elizabeth E. Seabrook, and by her alone. The cause was elaborately argued, and the Circuit decree upon this subject was sustained by the unanimous judgment of the Court of Appeals concurring in the opinion of Chancellor Harper, who was the organ of the Court. This decision was pronounced in May, 1841, and from that timb was regarded as (if not the law of the land) the law of William Seabrook’s will. Few persons may have had the curiosity to look into the reasons of the decree, and of those few, some may have shaken their heads at the logic of the Chancellor, while all yield acquiescence to the judgment of the Court, The parties — the community — have no concern but with the matter adjudicated. That ascertained, it is regarded as the rule of property. All the reasons of res judicata, the acknowledged policy of stare decisis, forbid interference in such cases. It is the interest of society that there should be an end of litigation. The land may be blest with wise judges, or it may be otherwise. But no servitude is so intolerable as under a system ubi lex aut vaga aut incerta est. Thirty-five years ago a revolution in the judiciary organization took place in consequence of discordant decisions. Upon the same clause of William Willson’s will, one purchaser from his devisee was held to have a good title, while another was dispossessed of his plantation. Nothing can be more powerful and convincing than the language of Judge Nott upon this subject, in Carr vs. Porter, 1 McC. Ch. 71. The wholesome doctrine thus approved by such luminaries as Mansfield, Kenyon and Nott, and recognized by Mr. Fearne, illustrates the importance, for the sake of the stability of property, of adhering to an abstract rule of construction. But the decree of 1835-’41, is an authoritative judgment, giving construction to the will itself. When, in Carr vs. Green, the defendant was ejected from his land, while his neighbor, Porter, claiming under precisely the same clause, was held to have a perfect title, it may ’ have abated the discontent of Green that his rights had been adjudicated in a different tribunal. Here the parties are virtually the same; the tribunal is the same, and the same question arises under the same clauses of the testator’s will.

This appeal has been twice argued. At the former hearing I was of opinion that the Court should adhere to a construction already given by a competent tribunal. A re-argument was ordered, not because a majority of the Court were unprepared to decide the cause, but from an unwillingness to overrule the decision of 1841 without the advantage of a full Court. My opinion remains unshaken that the Court should adhere to the determination of 1841. If that judgment, declaring Mrs. Seabrook not entitled, be now repudiated in consequence of the infiunity in the argument, that the words of exclusion applied to property, as to which the testator died intestate, it is a mistake to suppose that this quiets controversy, or that enterprize will expire with this generation. When a question shall arise as to the share of another child, it may, with great plausibility, be contended that the true view yet remains to be taken — that the judgment of 1841 should be maintained, and that the vice in the argument now made is in not probing to the root the infirmity in the reasoning of the former decree — that the devise over was not to the heirs of the testator, but to those who should be his heirs at the happening of the contingency. By this construction a valid contingent limitation \^as created to those heirs from which the widow would be confessedly excluded by the first clause of the will, and not a case of intestacy, in which she might be entitled to participate. After the decision now pro- ' nounced, who shall say that this inqniry would not he open? And who will have the intrepidity to predict at what time, and under what circumstances, the construction of these clauses of William Seabrook’s will shall be definitively established ?

Appeal dismissed, 
      
      
         2 Ves. Jun. 272, 581; 3 Ves. 332, 401.
     
      
       2 Bro. Parl. Cas. 454, (Tomlin’s edition); 2 Meriv. 348.
     