#### *M’Clintic and Others v. Manns.

Argued Nov. 14th, 1814.

1. Wills — Construction—Estates Tail* — Case at Bar. —A testator, in the year 1778, “gave and bequeathed," to each of his four sons a tract of land; with several articles of personal property to two of them; a pecuniary legacy to each of his daughters: all the rest of his personal estate, to his executors, to be equally divided among his sons; and, “if any of his sons should die, their part or parts to be equally divided among the rest of their brothers; and likewise with his daughters, in case any should die; all which legacies, he had given his sons, he did bind them, their heirs and assigns forever." Under this will, each of the sons took an estate in tail, which, by the act of October, 1779, was converted into a fee simple.

2. Chancery Practice — Partition of Land — Rescission of Previous Sale.† — A sale of part of a tract of land, having been made under a misconception of the rights of the parties; and the purchaser, with other plaintiffs, applying to a court of equity for partition of the land, (saying nothing of the part sold,) among themselves and the vendors, and others; to which partition they appeared entitled; and the vendors by their answer expressing a wish that, if partition should be decreed, the sale should be set aside; the court rescinded the sale, and directed partition of the whole tract.

3. Same —Same—Parties—Widow.‡—If a testator devise to his widow "her living” upon a tract of *141land, during her life; and the same land to one oí his sons in fee simple; a bill in equity lies, for partition of the land among the heirs of that son. in the widow's lifetime, and without making her party: 'for the decree will be made, "subject to her rights.”

William Mann by his will, dated and admitted to probat in the year 1778, gave and bequeathed to his wife Jane, a “black mare and colt, and saddle, and two cows, and all the household furniture, and all her wearing apparel, and her living upon the land he then lived on during her life;” —to each of his sons, Moses, Thomas, William, and John, a tract of land ; with several articles of personal property to Moses and Thomas; — the tract given to William and John being that on which he then lived ; — to his daughters, “Ealse, Jenny, and Sarah,” each a pecuniary legacy, and some other articles of personal property. “If his wife was with child, as supposed to be,” he gave to it, “if a boy, one hundred and fifty pounds in cash ; if a girl, seventy pounds in cash.” The will then proceeded, as follows : — “As to all the rest of my personal estate, goods, and chattels of what kind soever, I leave to my executors to be equally divided among my sons ; if it should please God that any of *my*sons should die, their part or parts to be equally divided among the rest of their brothers, and likewise with my daughters, in case any should die. A certain tract of land lying in the Indian draft containing 115 acres, before omitted, to be equally divided between my two sons William and John, and each to pay to estate thirty pounds to the estate '^af ter they come of age; all whichdegacies I have given to my sons, I do bind them their heirs and assigns forever.”

William Mann the younger, (one of the sons,) having departed this life, in 1794, under age, intestate, without issue, and unmarried ; a bill was filed in the superior court of chancery for the Staunton district, by Robert M’Clintic and Jane his wife, William H. Cavendish and Alice his wife, and Alexander M’Clintic and Sarah his wife, (which said Jane, Alice, and Sarah were the daughters aforesaid,) against Moses Mann and John Mann, two of the brothers, charging them with having taken possession, and received the profits, of the land so devised to the said William Mann the younger, and praying the court, by a decree, to direct that they, the aforesaid Moses and John, do join with the other heirs of the said William Mann in making partition of the land aforesaid, &c.

The defendants by their answers severally admitted that William Mann, the younger, died under age, and intestate, in the year 1794 ; that he was unmarried, and left no children; — but denied that they had possessed themselves of the land in question, or enjoyed its profits, except by permission from their mother, whom they considered as entitled to it, during her life, under the will of her husband. They contended also, that, according to the legal construction of that will, the devise of the land to William Mann the younger conveyed only a life estate to him, and that the reversion descended to the defendant Moses Mann as heir at law ; or, if not, (whatever estate passed to William Mann the younger,) it was the intention of the testator to give the land to the surviving brothers, in the event of his dying without lawful children : — that all the parties interested acquiesced under this construction of the will, until a very short time since ; that, for the purpose of carrying into effect a bargain between William Mann the younger and Alexander M’Clintic, (one of the plaintiffs,) the defendant, John Mann, and Archibald Mann, (a posthumous child of the 1 estator, to whom the defendants, Moses and John, had made a conditional conveyance of part of the land,) did actually convey a *part thereof to the said Alexander M’Clintic, being induced to do so by their affection for his wife, their sister, (who had not received a sufficient provision under the will ;) notwithstanding that contract, being made under age, was considered as in nowise binding on the representatives of William Mann, and the money contracted to be given for the land was by no means its value. They hoped, therefore, if the parties had mistaken their rights, and the plaintiffs were really entitled to a share in the land, that the court would set aside the contract thus made, under a mistake, with Alexander M’Clintic, and, giving him back his purchase money, would divide the whole land.

Chancellor Brown, “not expressing any opinion on the two questions, what estate the widow of William Mann the elder took under the devise to her, and whether William Mann the younger took an estate in fee simple, or not, under the devise to him, was satisfied that, under a fair and legal construction of the will, whatever estate William Mann the younger took, that estate was limited to his surviving brothers on his death without children, and therefore that the plaintiffs had no title to recover.” He therefore dismissed the bill with costs ; from which decree the plaintiffs appealed.

Wickham for the appellants.

Wirt for the appellees.

Monday, January 9th, 1815,

*

WilIs — Construction—Estates Tail. — See mono-graphic *note*on “Wills" appended to Hughes v. Hughes, 2 Munf. 209. The principal case was cited with approval in Bells v. Gillespie, 5 Hand. 284.

†

Chancery Practice — Partition—Parties.—See principal case cited with approval in Buck v. Pennybacker, 4 Leigh 9.

‡

Same — Partition of Dower in Life of Widow. — In Parker v. McCoy, 10 Gratt. 602, Lee, J., delivering the opinion of the court, said: “Whether the case of *M'Clintic v. Manns,*4 *Munf.*328, is to be understood as affirming the legal right to demand partition of dower lands among the heirs during *141the life of the tenant in dower or not, certainly it has not been the usage in Virginia to make partition of such lands until after the death of the doweress. And It would be extremely difficult if not impossible for the court to form any correct estimate of the value of the reversion in such a case. Besides, the sale of a reversion would generally be at a serious loss, and frequently a great sacrifice, thus defeating what, as already intimated, I take to be the great object of the law. 1 think the widow's dower land Is, according to general usage throughout the state, properly regarded as not a fit subj ect of parti tion, either in kind or by a sale, and that the other lands may be sold by order of the court, without taking the former into the estimate, leaving it to be the subject of future disposit.ion. when it falls in upon the death of the tenant for life.”

JUDGE ROANE

delivered the following opinion of this court.

The court is of opinion, that the devise of the land in question to William Mann, the younger, having been by the last clause of the will of William Mann, the testator, enlarged into a fee, was again reduced to a smaller estate by that clause thereof, which declares that, if any of the testator’s sons should die, their parts should be equally divided among the rest of their brothers. The event here contemplated was not a dying merely, because that is a certain, and not a ^contingent event ; nor was it a dying without heirs, for that could never happen so long as any of the devisees *142over, or their issue, were living'. The event contemplated, therefore, was a dying without issue ; which created an estate tail in William Mann, junr. and, being enlarged into a fee by our act, enures to the female appellants, among others, as a part of the heirs of the said William Mann, junr.

The court is farther of opinion, that the limitation over to the brothers is- not good, by way of executory devise, on the principle of being a contingency to happen within the compass of a life or lives in being, as has been contended; because the last clause of the will aforesaid, in favour of the heirs and assigns of the sons, extends' to this as well as the other devises in the will contained, and, consequently, by extending the term, “brothers,” to mean brothers and their heirs, places this case within the reason of the decision by this court in the case of Sydnor v. Sydnor, 2 Munf. 263.

The court is therefore of opinion, that the land in question being the proper land of William Mann, junr. deceased, the female appellants ought to recover such portions thereof as they shall shew themselves entitled to as a part of his heirs ; — which portions not being as yet ascertained in the cause, the same is remanded to the Court of Chancery for the purpose of having the same adjusted, and a decree rendered according to the principles now stated; including the land sold to Alexander M’Clintic, in the proceedings mentioned, the sale of which having been made under a misconception of the rights of the parties, and a portion of that land being also claimed by the said M’Clintic in this suit, the said sale is to be set aside, and the purchase money, if paid, is to be decreed to be repaid to the said M’Clintic.

With respect to the objections that this suit is brought too soon, as being in the lifetime uf Mrs. Mann, the testator’s widow, and that she is no party to the suit; the last objection affords an answer to the first, as it seems to admit that the suit would now lie, if she were a party thereto. Nor will the objection that Mrs. Mann is no party, apply, . if the bill be considered as in exclusion of her rights. In that *view the court is inclined to consider it, and therefore overrules the objection, as nothing done in this case can affect her rights, but the decree made between the present parties is to be considered as entirely subject thereto.