#### *Charles C. Hay*vs. *Frederick J. Hay, Jr. et al.*

Testator devised and bequeathed his estate, real and personal, to his only child, S. B. “and the heirs of her body;" and if she should “ die without *living*issue of her body, then, and in that case, all my estate, both personal and real, to return to the nearest heirs of my body by my mother’s *lineage*— Held, that, in the real estate, S. B. took a fee conditional, and that there was no remainder to her issue, as purchasers.

As to the real estate, the *limitation over,*on S. B’s dying *“*without living issue,” was void for remoteness.

The question, — whether, as to the personalty, there was a valid limitation to the issue of S. B., as purchasers, — ordered to be re-argued.

*Whitworth*vs. *Stuckey,*( 1 Rich. Eq. 404) explained.

A wife is not an incompetent witness, merely because of the conjugal relation, to prove, after the husband’s death, that a parol gift, alleged to have been made by the husband in his lifetime, was, in fact, a loan.

*Before*Johston, Ch. *at Lexington, July,*1850.

Johnston, Ch. This case was brought before me, by consent of parties, and heard the 24th day of July, 1850, at Lex*385ington, where I was holding an extra term for the business of that district.

Of the numerous questions made by the pleadings, two only were submitted for adjudication: and I shall state only so much of the case as may suffice to render my decision of them intelligible—

The late Col. Frederick J. Hay died the 10th of August, 1849, leaving a widow, Susan Cynthia Hay; five sons, Charles C. Hay, Frederick J, Hay, (the younger) Rev. Samuel II. Hay, Thomas T. Hay and Oscar P. Hay; three daughters, Mary L. (the wife of Richard A. Gantt) Susan C. Hay (the younger) and Martha H. Hay; and a grand-daughter, Harriet Ford Hay, only child of a pre-deceased son, Wm. A. Hay.

He left about two hundred slaves, and a large landed estate, consisting of numerous tracts, described in the pleadings. All the slaves, and the larger portion of the land, he had acquired by his said wife, Susan, who was the only issue of her father, Charles Jones Brown, who died some fifty years ago.

Col. Hay left a last will and testament, dated the 19th of July, 1848, and a codicil thereto, dated the 8th day of September, 1848, both duly executed: by which, among other things, he disposed of the slaves and land acquired by his marriage, among his wife, children and grand-child.

After his death, a will left by his wife’s father, the said Charles J. Brown, came to light. It was duly executed, so as to pass real estate, the 7th of July, 1798, and is in the following terms *:*— ‘ I give and bequeath to my loving daughter, Susan Cynthia Brown, and the heirs of her body, all my worldly estate, both real and personal; provided, if my said daughter, Susan Cynthia Brown, should happen to die without *living*issue of her body, then, and in that case, all my said estate, both personal and real, to return to the *nearest heirs of my*body, by my mother’s lineage.”

Mrs. Hay, and all those of her children, who are of age, and capable of consenting, acquiesce in Col. Hay’s will, and raise no claim in opposition thereto, under Brown’s will. But it is *386contended, in behalf of the infant grand-daughter, Harriet Ford I-Iay, that Brown’s will limi's the slaves and land, which Col. Hay acquired by his wife, in remainder to her issue as purchasers ; and that it was not in Col. Hay’s power, to deprive them of this interest by his will.

The first of the two questions submitted to me, is whether the will of Charles J. Brown creates the limitation contended for ; and this inquiry is made for the benefit not only of the granddaughter, but of all the parties who are not *mi juris*and capable of consenting to the dispositions of this property made by Col. Hay.

I shall, in the first place, apply the words of Brown’s will to the personal property — the slaves.

The words of direct gift to Mrs Hay and the heirs of her body, without more, would certainly have given her this property absolutely; this admits of no doubt. But it is as well settled in this State as any question can be, though perhaps not as satisfactorily, that where an express limitation of personalty to one and the heirs of his body, or issue, is followed by a limitation over, to take effect on the failure of such heirs or issue, at the death of the first taker, — this limitation over reflects back upon, and gives construction to, the first words, and creates a remainder, to such heirs, or issue, of the first taker as shall be living at his death. This was settled, after much discussion, in the construction of Bell’s will, *{Henry*vs. Archer, Bail. Eq. 335) and has been the doctrine ever since; and I am bound by it.

The question, then, is ; is there such a limitation over in this case *1*I think not.

The property is to go over “ if,” (or when) Susan Cynthia Brown “ shall happen to die without living issue.”

If the word “living” were omitted, and the limitation over had been upon *“*Susan’s” dying *“*without issue,” it admits of no doubt that this would not have been a limitation over to take effect definitely at Susan’s death, but at any time after her death, however remote, when she might prove to be *“*without *387issue;” — that is, as the cases have ruled, upon an indefinite failure of issue.

The subtle reasoning upon which the doctrine was founded, is constantly baifiing the common sense meaning of terms, and therefore the doctrine itself is rarely recalled to the mind without an effort. But it is settled and established beyond doubt; and is therefore the rule by which this Court must proceed.

The words of the will before me, are precisely the words which have always been thus held insufficient to create a valid limitation over, (and therefore insufficient to convert the heirs or issue of Mrs. Hay’s body into purchasers in remainder,) — except that the word “ living” is prefixed to the word *“*issue.” What sort of difference can that make *1*The property is not to go over when Mrs. Hay is “ without issue,” but when she is *“*without living issue.” Is not this one and the same event *1*Is not the contingency of being without living issue, liable to be as remote, as that of being without issue ?

A man can never be without issue while the issue are living; nor be said to have issue when they are dead. By *issue,*wherever referred to in the cases, is meant living issue; — and the phrase *“*without issue,” which has been judicially interpre ■ ted to signify a failure of issue, necessarily imports, that wherever and whenever the failure occurs, it has arisen in consequence of there being, at that time, no living issue. The word *living,*creates, in law, no qualification of the word to which it is prefixed, and the decision must be precisely the same as if it were not in the will.

The word “ living” is not the only one in this sentence which seems to be surplusage. The words *“of her*body” are equally so; — and add nothing to the word *“ issue,"*which necessarily as issue, is “ of the body.”

Until satisfied on that poiirt, I could not avoid the conjecture that the copy furnished me was incorrect, and that the word *living*had been mistaken for *leaving ;*a word that has been held to indicate the time of the first taker’s death; as pointing out the juncture when he *leaves*(separate or departs from,) his *388issue, — who are then *left*living behind him. The word *living*has no such power. It has no reference to the act of the dying ancestor, but simply to the quality of the issue; and the quality it describes, is one always intended in law, whether it be used or not, when issue are spoken of in such a connexion.

But it was argued that though all this be conceded, still there is a circumstance in this limitation over, sufficient to confine the event on which it depends to the death of Mrs. Hay; — and that is, that the limitation over is to a person or persons *in esse.*

There are cases in which a limitation over, otherwise too remote, has been tied down to a definite period by such a circumstance. But to whom is the property limited over here ?

To the *nearest heirs of Brown's*body, by his *mother’s lineage.*Whether the persons to take were *in esse,*can only be ascertained by the description of the giver, for they are not named. Who or what is meant by “ heirs of my body, by my mother’s lineage ?” — and how are we to ascertain which of them is meant ?

If no person can be brought under the description, the person intended to be described could not have been *in esse.*The limitation over is to nobody : there is no such limitation.

Now, whom did the testator intend to describe, as not heirs of his mother’s body, but of his own, — and while proceeding from his own body, being of his mother’s lineage, in exclusion of his father’s ? And which of these (if this can be found out,) did he regard as the nearest *1*

What did the testator mean ? Several hypotheses have been suggested. It was supposed that, by nearest heirs of his body, he meant his next of kin; and that his intention was to limit over to his next of kin in the maternal line.

But, in the first place, I do not know by what authority we are to divert the meaning of the technical words “ heirs of my body” from their technical import, unless there was something in the context to guide us- to another application of them. We áre not at liberty to conjecture. And what is there in the con*389text to show us what interpretation, other than the technical one, conforms to the intention ?

In the next place, if we suppose that next of kin were intended, what is there to show that the reference was to next of kin existing at the death of Mrs. Hay, and not next of kin existing when her issue should ultimately fail ? The reference to a class of persons, by description, capable, in indefinite succession, of coming within the description, and claiming the property, does not, as Sir William Grant says in one of the cases, *(Massey*vs. Hudson, 2 Merivale, 135,) “obviate the objection of remoteness —it is not a reference to persons *in esse,*as definite persons, for whom a personal enjoyment was intended.

Another hypothesis was, that the testator referred to his mother’s nearest relations, or next of kin. But this is liable to the same objections as the one we have already considered: it is merely conjectural, and it does' not point us to a definite time.

A third conjecture was, that Mr. Brown may have contemplated the possibility of having other issue, besides Mrs. Hay, to whom he wished the property to go over, in case she should die issueless, either in his lifetime or afterwards. The answer, in the latter case, is still the same as that which has been given to the previous hypothesis. In the former case, (her pre-decease of the testator,) the answer is, that the will would have taken effect in Mrs. Hay, or in the other issue of Brown alternatively and not first in the former and then in the latter, by way of limitation over. If it took effect in Mrs. Hay, there was to be (in the case supposed) no limitation over.

But, after I have gone through this will, in every way it has been presented, I confess my inability to comprehend what the testator can have meant by the limitation over; and I incline to the opinion that it is void, for uncertainty: for the only remaining supposition, (besides these which were suggested by counsel,) is the absurd one that the limitation over was intended for the heirs of testator’s body, (meaning Mrs. Hay and her issue); that is, that he intended to limit over to them, to take effect only upon the contingency of their own deaths and extinction.

*390I will now apply the words of the will to the realty.

The words of direct gift, of themselves, create, in Mrs. Hay, a fee conditional, descendible, *per formam doni,*to the heirs of her body. The ■ limitation over, as we have seen, is too remote as to the personalty. It is equally so as to the realty. Indeed, words which would be sufficient to tie down a limitation over, of personalty, to the death of the first taker, are sometimes insufficient to produce that effect as to lands; — of which we have examples in *Forth*vs. *Chapman,*(1 P. Wms. 663,) and in our own case of *Mazyclc*vs. *Vanderhorst,*(1 Bail. Eq. 48.) But even if the limitation over were within proper time, it has not the same effect upon the preceding limitation, in cases of real estate, that is allowed to it in cases of personalty. In the latter case, we have seen (as was decided in the cases on *Bell’s will,*Bail. Eq. 535,) that such a limitation over converts the issue, or heirs of the body, mentioned in the words of direct gift, into purchasers in remainder. But the same judge, whose opinion was established in these cases, held, in *Whitworth*vs. *Stuckey,*(1 Rich. Eq. 411,) that when real estate is concerned, the direct gift is unaffected by the limitation over; and that was the only question, in relation to the construction of the will of Fraser, which was considered and discussed by him in that case. As it has been sometimes supposed that the learned Judge had investigated the direct words of limitation, apart from the words of limitation over, I have thought it worth while to re-examine his opinion, and I find that he assumes the legal construction of the former; and, taking that construction for granted, proceeds to consider what he regarded the real question, viz :— *Whether the Imitation over had any effect to control or qualify it.*“ There is no question,” says he, (Id.) “ that, if there had been no more in the will than a gift a son, for and during the term of his natural life, and, at his death, to the lawful issue of his body, this would have given an estate tail, or fee conditional, under the rule in *Shelly’s case. The question is upon the effect of the limitation over,*if he should die without leaving issue of his body living at the time of his death. Does *391this, according to the established rule of law, sufficiently indicate the testator’s intention that the first taker should he restricted to a life estate, and the issue take as purchasers ?” It is with reference to this question that he proceeds to an examination of the cases, which he closes by a remark upon *Gilman*vs. Elvey, that the Court, in the construction of the will in that case, did “ not resort to the *limitation over*in the event of the son’s not leaving issue living at the time of his death, to confirm its conclusionwhich observation shows that he kept the question which he had proposed to discuss steadily before him: '(Id, 412.)

In *Forth*vs. Chapman, (1 P. Wms. 663,) it was held, that upon the same words of the same will, limiting over real and personal property, the limitation over of the former would be void for remoteness, while that of the latter would be supported — an authority that has been followed ever since; — and there is nothing more unreasonable or inconsistent in holding, as in *Henry*vs. Archer, and in *Whitworth*vs. *Stuckey,*(1 Rich. Eq. 411,) that the effect of a *limitation over*to convert the word “ issue,” mentioned in a preceding limitation, into a word of purchase, is different, according as the subject be real or personal estate.

The decision in *Forth*vs. Chapman, (1 P. Wms, 663,) turned upon the different qualities of the two species of property; a subject that had been previously considered, and with the same result, in *Target*vs. Gaunt, (1 P. Wms. 433;) where the different natures of the property are considered.

Where is the inconsistency ? One of them, (real estate,) is descendible — the other, (personal estate) never is so, nor can it be rendered inheritable by any words you can employ. Now, where real estate is limited to one and the heirs of his body or issue, and then limited over, (upon any contingency, however near,) the primary objects of the grantor’s bounty are those to whom he has expressly given his estate in the first instance, and it is contrary to his intention that the ultimate limitation shall ever take effect while there are any of the former to enjoy what *392he designed for them. If you take advantage of the limitation over to convert the heirs or issue mentioned in the direct gift into purchasers, you not only invert the intended order of the bounty, but you are destroying the very estate he intended to create in the first instance. He intended to create an estate de-scendible indefinitely *per formam doni;*you arrest the descent. and turn it into a new channel. lie intended the amplest efflux of the primary estate : — that issue should succeed to issue in the enjoyment of it, while there shall be issue to enjoy. But you mar this intention when you declare that the first issue shall take by purchase, that no other issue shall take, and that when the first issue are dead, though there be succeeding issue, they shall not enjoy as such. In cases of real estate, therefore, to allow the words of ultimate limitation to control the prior words and change their operation, would be a complete defeat of the primary and leading intention of the grantor. Nor is there any necessity to do so. If the limitation over be sufficiently near, as to time, it may be allowed to stand by way of executory devise, without abridging the prior disposition. The two dispositions may stand, in all their amplitude, as separate things, according to the terms and intention of the donor; and so they should stand. Is there any instance in which the limitation over of realty has been allowed to arrest the efflux of the prior estate *1*

But does this reasoning apply to personalty ? It is not de-scendible. When it is attempted to be limited to one and his issue, the issue cannot take by descent; and if they are to derive any benefit under the conveyance, it must be by purchase. They cannot take in succession, as in cases of real estate. But, as was argued by Chancellor Harper, in *Henry*vs. Archer, where there is a gift to them, there is an expressed intention that they shall enjoy, if, in the circumstances, the law will allow it; and where there is a limitation over after a gift to issue, there is a clear declaration that the issue are preferred over the ultimate remaindermen, in the affection of the grantor. If the limitation over is to take effect at a given time, the will or other instrument shews us that whatever issue may happen to exist at that time, *393are intended to take before the ulterior limitee. Now the question is reduced to this, in every such case — is the *limitation over*good ? Is it within time *1*Can he, for whom it was intended, take ? If he can, then any other person who can, at that juncture of time, shew a stronger intention in his favor, is better entitled than he, and should, in effectuation of the intention, be preferred before him, as far as the law will allow it. Now, in the case we have supposed, (of a limitation over at a lawful time5 after issue,) any issue existing at that time, can shew a superior intention in their favor; and are entitled on the score of intention. And as they cannot lawfully take by inheritance or succession, must be allowed to take in a different way, by way of purchase, or the intention is defeated.

Thus we see that the decisions in *Henry*vs. *Archer-,*and in *Whitworth*vs. *Stuckey,*though they establish different rules, establish the same principle ; and the apparent discrepancy arises from the diversity of subjects to which it is applied. The intention is the *Pole Star,*and both these cases steer to it from different points.

The other question relates to a parol gift of slaves, which the *administrator of William A. Hay,*the pre-deceased *son,*alleges was made to him in his lifetime, by his father, *Col. Hay.*This gift is disputed, and it is contended that the slaves were loaned, not given. *Mrs. Hay*proves a loan, beyond doubt; and if I could receive her evidence, it would be decisive of the question. *(a)*

Her competency is not liable to the objection of interest on her part; bul I think it is settled, not only that husband and wife are excluded from testifying for or against each other, during their joint lives, but that even after the dissolution of the marriage relation by the death of one of the parties, the survivor is incompetent to testify in relation to the rights or estate of the deceased. See *Footman*vs. *Pendergrass,*(2 Stroh. Eq. 322,) *Mayrant*vs. Guignard, (3 Strob. Eq. 112,) and *O’Conner*vs. *394*Mayerbank,*(43 Eng. Com. Law Rep. 228 (S. C.) 4 Maning & Grayer Rep.)

The ground of the doctrine is one of social policy, not interest ; it arises from the confidence essential to the relation ; and it is not necessary that the subject of the evidence should have been imparted to the survivor in express confidence. Whether that is the case or *not,*he or she shall not be allowed to make use of it in evidence ; because such is the intimacy of the relation of husband and wife, that there should be no reserve between them; and if either of them were put under fear that whatever of his or her rights might happen to be exposed to the other, — whatever that other might chance to see or hear, might be brought to public view, — this would create a condition of tormenting and intolerable oppression, and would lead to a degree of jealousy and suspicion and reserve *utterly*destructive of domestic peace and happiness.

The other members of the family whose testimony has been brought to bear against the gift, have attempted, by releases, to divest themselves of their interest. Whether the releases have effectually removed their interest, it is unnecessary to consider or determine, because their testimony relates, not to the facts, but to their opinion of them. Independently of this, there is little in evidence from which the inference of gift or no gift is to be drawn, beyond the bare fact that the slaves were put into the .possession of the son by the father, and were employed by the sonin planting. Now while, as-1 have said in *Henson*vs. *Ki-.nard,*(3 Strob. Eq. 371,) I do not think this amounts *ipso facto,*to a gift in law, it is such a circumstance as may amount to evidence of it; and should be so held if the other circumstances . are equivocal, as they are in this case. I am of opinion that there was a gift, but would prefer that the parties would take an issue, for which leave is hereby granted them, if they make up the issue within three months after my opinion is filed. Having now given the opinion of the Court, which the parties desired to take upon the two questions submitted by them, it is left to counsel to propose a decree upon those points, and the remaining points of the case.

*395The defendant, Harriet F. Hay, appealed, on the following ground:

That his Honor should have decreed that, both as regards the real and personal estate devised and bequeathed in the will of Charles J. Brown, the said will contains a good and valid limitation to such persons as shall, at the death of Mrs. Susan C. Hay, answer the description of heirs of her body then living, as purchasers.

The complainant, C. C. Hay, gave notice that he appealed, and would move to *reverse*and *modify*so much of the Chancellor’s decree as establishes a gift, (of certain slaves,) on the following grounds, and in the following particulars, viz:

1st. In this : That if a gift be established generally, it is respectfully submitted that the Chancellor should have *expressly excepted*the negroes, which were proved to have been sent for a special and temporary purpose.

2d. In this: That if the Appeal Court should decide that the limitations in the will of Charles J. Brown are good, then it will be submitted that the supposed gift was valid *only during the life time of F. J. Hay, Sen.,*whose marital rights did not attach beyond that period.

3d. Because (as it is respectfully submitted) the Chancellor erred in rejecting the testimony of Mrs. Susan C. Hay, (the widow of F. J. Hay, Sen.,) who was a competent witness, and her testimony admissible.

4th. Because the testimony of the other witnesses for the complainant, C. C. Hay, executor, negatived the supposed gift.

The complainant, C. C. Hay, also gave notice that, by his notice of appeal, he did not mean to waive his right to an issue, but (if need be) an application would be made for an issue at the hearing in the Appeal Court.

*Bellinger <Sp Hutson,*for complainant.

*James T. Aldrich,*for Harriet F. Hay.

(a)

**Mrs. Hay’s testimony was, that she heard William A. Hay say that he held the negroes as a loan. R.

Johnston, Ch.,

delivered the opinion of ¡the Court.

This Court is satisfied with so much of the decree as relates to the real estate; and it is ordered that the same be affirmed.

*396It is quite satisfactory to my mind, to find that the case of *Whitworth*vs. Stuckey, as I interpreted it in the decree, is corroborated by the amplest authority.

“ It remains,” says Mr. Jarman, *(2*Jarm. 359, 360 ; chap. 39, division *2,*§5,) “ to be observed, that where a devise to a person and his issue, — or to him and the heirs of his *body,*— (n) is followed by a limitation over, in case of his dying without leaving issue *living at his*death, the only effect of these special words is to make the remainder contingent on the described event.— They are not considered explanatory of the species of issue included in the prior devise ; (o) and, therefore, do not prevent the prior devisee taking an estate tail under it. (p) The result simply is, that if the tenant in tail has no issue at his death, the devise over takes effect; if otherwise, the devise over is defeated, notwithstanding a *subsequent*failure of issue. In *Doe*d. *Gilman*vs. *Elvey,**(q)***the circumstance of there being a limitation *over*on failure of issue at the death of the prior devisee, does not appear to have given rise to an argument against an estate tail. The only doubt, it is conceived, could possibly be, whether it would have the effect of rendering the remainder *expectant on the estate tail,*contingent on the event of the devi-see in tail leaving no issue *at his death.**(r)***The affirmative, however, seems to be the better opinion, as the courts would hardly feel themselves authorized, without a context, to reject the clause ‘ living at his decease.’ But words of an equivocal import would certainly not have the effect of subjecting the remainder to such a contingency.”(s)

Upon the subject of the loan, we think it advisable that an issue be made up, as indicated in the decree: the parties asserting the loan to be the actors : and it is ordered that they have leave to make up said issue, to be heard at the next term of the Court of Common Pleas for Barnwell district.

*397As to the competency of Mrs. Susan Cynthia Hay (widow of Col. Hay) to testify on that issue ; we are of opinion, that the circumstance of her being the widow of the donor or lender is not sufficient to render her incompetent: and that the decree on that subject should be reversed : and it is so ordered.

Our own cases, referred to in the decree, are cases where the husband or wife of the witness were still living. My own opinion is that the reason of incompetency extends also to cases where the marriage relation has been terminated by death. But the question is one of law, and the testimony in this case is to be applied to a legal right; and the statute, in such cases, requires us to yield to the judgments of our law courts. The case of *Caldwell*vs. Stuart, (2 Bail. 574,) which, if quoted, was overlooked at the hearing, is conclusive upon us.

It is unnecessary to say anything further here upon the question of the loan or gift. It is reserved until the return of the issue, hereinbefore directed.

It is ordered that the questions in relation to the effect of Brown’s will upon the personalty which passed under it be re-argued at the next term, in connexion with the verdict upon the issue, if then returned, or separately if the issue shall not have been tried before that time. At present we are not prepared to decide it; and, therefore, reserve our judgment.

It will, also, be understood that we reserve our judgment upon the question whether those parties who have signified their willingness to abide by Col. Hay’s will will not be allowed (if they desire it,) to retract, in the event that the issue of Mrs. Hay be ■declared entitled to take the personalty, in remainder, as purchasers, or if the gift contended for in the pleadings be established. This matter is here stated that the attention of parties and their counsel may be drawn to the subject.

It is ordered that all questions not herein decided be reserved until further hearing and further order.

Dargan and Wardlaw, CC. concurred.

Dunkin, Ch. concurred in the result.

*Decree modified.*

(n)

*Wright*vs. *Pearson,*1 *Ed. 119;*S. C. 2 Jarm. 272; S. C. *Amb. 358; S. C.*Fearn. C. R. 126.

(o)

*Hutchinson*vs. *Stephens,*1 Keen, 240.

(p)

 2 Jarm, 330.

(q)

 4 East, 313; S. C. 2 Jarm. 333.

(r)

 See *Lyon*vs. *Mitchell,*1 Mad. R. 467, as to personalty; and *note*2 Jarm. 360.

(s)

**See *Broadhurst*vs. *Morris,*2 Barn. & Adolp. 1; S. C. 2 Jarm. 309.