#### Joseph Dougherty v. Executors of John Dougherty et al.

CXIARLESTON,

Jan'y, 1848.

The words of a will, "should my neice outlive my son, Qze~ all my property both real and personal to be given to her and her children, if she leaves any at her death," held to constitute a residuary disposition.

Where there is a bequest of personalty to "A: and her children," the general rule is that A. takes the absolute estate; but where the provisions of the will show an intention of giving, in remainder, to the children living at her death, this will restrict the mother to a life-estate.

A residuary bequest of real and personal estate, in the same clause, to take effect upon the happening of a future contingency, will carry with it the intermediate rents and profits, unless they have been otherwise appropriated by the testator.

A bequest of freedom to slaves, is void by the provisions of the Act of 1841. But such slaves will not pass under the residuary clause of the will: according to - the same Act, the trustee, or person holding them under such bequest, is accountable for them or their value, to the distributees, or next of kin of the testator.

A bequest of freedom to slaves, after the termination of a life-estate in them, does not impair the life-estate; but subjects the slaves to the provisions ofthe Act of 1841, after its termination.

A gift over, which is void, cannot defeat a vested interest, previously given.

Before DUNKIN, Ch. at Charleston, Sittings, 1847.

DUNKIN, Ch. John Dougherty died in November, 1844. U is will, written by himself, and executed shortly after his death, provides, among other things, as follows, to wit:

"I ~i~.re to son J~seph Doug'h~rty, 700 dollars per year, *64payable quarterly, during his natural life, but he is never to have anything to do with my estate, neither his heirs or assigns, in Law or Equity.” After some pecuniary legacies, the will proceeds: “I leave old Tenah, her daughter Clarissa, and her children Anna, Sarah, Thomas, Louisa and John, to be left free under the guardianship of my executors, and as they wont be able to support themselves, to have a reasonable support from the estate. I give to my neice, Miss Mary Dougherty, the following negroes, young Tenah, and her son Ben, Flora and her sister Peggy, during her own natural life, and at her death they are to be left free, under the guardianship of my executors ; and should my neice, Miss Mary Dougherty, outlive my son Joseph, then all my property, both real and personal, to be given to her and her children, if she leaves any at her death, and if she does get married, her husband is not to have anything to do with any of the property she may get from my- estate.” James Adger, William H. Houston and John Dougherty, Jr., the testator’s nephew, were appointed executors, the two latter of whom qualified on the will.

It is proposed, first, to consider the interest of Mary Doug-herty, under the provisions of this will. And here it may not be superfluous to premise, that it is the duty of the Court to give effect to the intention of the testator, where it can be satisfactorily ascertained, provided such intention would not violate the law of the land. Where the language of the testator is so obscure or ambiguous, that no safe construction can be given, or where his manifest purpose would be obnoxious to the policy of the law, or where he has made Only a partial disposition of his estate, in all these cases, the testamentary power not having been effectually exercised, the law interposes and determines the succession, and it is the province of the Court merely to declare the law.

To a certain extent, the intention of the testator seems to the Court sufficiently explicit. His scheme, so far as he attempted to express it, or to carry it out, is stated with ordinary clearnes, although it is not couched in technical language. To his son he gives an annuity, (equal to the interest of ten thousand dollars,) payable quarterly, during his life, and he declares, “but he is never to have anything to do with my estate, neither his heirs or assigns, in Law or Equity,” — -just as he afterwards declares that if his niece Mary Dougherty should get married “her husband is not to have anything to do with any of the property she may get from my estate.” In both cases, the Court must presume that the testator knew what the law was, and expressed himself in reference to it. His son was his heir, and would be entitled to his whole estate, unless effectually excluded, and so the husband of Mary Dougherty might become entitled to the property bequeathed *65to her. The intention of the testator is therefore declared to exclude the son from the inheritance, and to preclude the marital rights of the husband. It may be too much to say, that the testator has exhibited a manifest intention to disinherit the son ; and the more just construction probably is that he intended to preclude him from the assertion of any right conflicting with the other dispositions which he made of his estate. Whether-the testator has accomplished his purpose, is another and a different inquiry. However fixed his intention may have been, if the testator has not made a valid disposition of his estate, the right of the heir is unimpaired.

gee4oon(j E c.R.. 218. * Jacobs 468.

2 Des. R. 33.

The next prominent object of the testator’s affection and bounty, was his niece, Mary Dougherty. — “Should my neice, Miss Mary Dougherty, outlive my son Joseph, then all my property, both real and personal, to be given to her and her children, if she leaves any at her death.” This is the language of a man who supposed that he had provided for the appropriation of the income of his estate during his son’s lifetime. But it was stated, although no proof was offered on the subject, that the income was more than sufficient to pay all that was charged upon it by the testator’s will. It was insisted, on the part of the complainant, that the surplus income, which had accrued, or which should accrue during the lifetime of the son, was not disposed of by the testator, and therefore belonged to the heir at law or distributee. In 1 *Jarman on WUls*495, it is said. *“Where*a specific devise is to take effect in future, so that at the death of the testator, there is no person actually entitled to the immediate income, the rents and profits will, until the devise vests in possession, pass under the residuary clause, if any, and should the will contain no such clause, will descend to the testator’s heir at law; and it is immaterial whether the future devise in question be vested or contingent If the residuary devise itself be contingent or future, *i.*e., deferred in point of enjoyment, it becomes a question of much nicety, whether the income, accruing in the interval from the residuary real estate, passes -by such devise.” After commenting on the authorities, the author adopts the conclusion, that where “the testator mixes up real and personal estate in one clause, as where there is a gift of all the residue of his real and personal estate to the oldest of three persons who should attain twenty-one years of age, charged with a sum of money to the others if they should attain that age, this comprises the rents accruing between the testator’s decease, and the attainment by the devisee of the prescribed age.”

Among the authorities cited by Mr. Jarman, in reference to his principal proposition, is *Brailsford*v. *Heyward.*That was a devise of real and personal estate to trustees, to hold to the use of the wife during life, and at her death, to the *66yoaugest child of the testator, who should attain *21*years of age_ rpjie wjfe ¿qed, aII(j aiso the two youngest children un^er 21. It was held that the next child, who had attained ^1, was entitled to the *intermediate*rents and profits which had accrued since the death of the widow, against the claims of the heir at law, as well as of the residuary devisees and legatees. That cause was argued by very eminent counsel, and was affirmed after a re-hearing. The decision was made to depend very much on the particular provisions of the will, as indicating the intention of the testator. But on perusing the arguments of the counsel, it is difficult to resist the conclusion that, on principle, the only question was. or would have been between the complainants and the residuary de-visees and legatees. If the complainant was not entitled, the intermediate rents and profits passed under the residuary clause j and moreover, that the heir at law would be held by this Court to be a trustee for carrying into effect the purposes; of the will, if such declaration were necessary. The language of this will1 is — “Should my niece outlive my son, *thenoA*my property, both real and personal, to be given,” &c. It is no violence to declare, that this is substantially a residuary disposition. As is said by Lord Bardwicke in 3 Atk. 400, “there are no particular words required to pass the estate, but any words that show the intention of the testator are sufficient.” I think the intention manifest enough to dispose of all the residue of the testator's estate at that time. But the result would be the same by adopting the construction of the Court in *Brailsjord*v. *I-Ieyward.*“The whole property, lands, negroes <fcc. being blended and united together, and given to the respective devisees under certain limitations, the profits as naturally follow and belong to such devisees, as the shadow follows the substance.”'

?>• 33.

Bail. Eq. 35t. McMul. Eq. 347-

The estate is “given to her and her children, if she leaves any at her death.” Where there is a bequest of personalty to “A and her children,” the general rule is that A. has the absolute estate. *Shearman*v. *Angel*But the rule is difier-ent, as is said by the Court in *Johnson*v„ *Johnson*where the provisions of the will “show an intention of giving, in remainder, to the children living at her death,” and in such case, would restrict the mother to a life estate. Such seems to the Court the intention exhibited in this will, and it can hard ly be regarded as an argument against this construction, that in the event of Mary Dougherty’s death without children, the remainder would be undisposed of. It is quite clear, as has been intimated, that the testator’s scheme is rather limited. He did not affect to exercise his power over his estate beyond a certain period, and in reference to certain objects. If his niece had died the day after the testator, the son’s interest would have been absolute in the whole estate, and the provision for his. annuity would have been simply superfluous.

*672 Merivale, 3S3-

Bease v. vfn’22?ea" LordLang-¿ale, M. K. 352.

The bequest of freedom to old Tenah, Clarissa and her children is void, by the provisions of the Act of 1841. Ordú narily, the effect of this would be, that Tenah and Clarissa and her children would fall into the residuum, and pass to Mary Dougherty, by the clause which the Court has eon-strued to be residuary. The rule is stated by Sir William Grant, in *Leake*v. *Robinson.*But the terms of the Act of 1841 are too positive to admit of this construction, and the pokey of the law cannot be mistaken. “ Every' donee or trustee, holding under such bequest, gift or conveyance,” {declares the Act) “shall be liable to deliver up such slave or slaves, or held to account for their value, for the benefit of the distributees, or next of kin, of the person making such bequest, gift or conveyance.” The negroes included in this clause, must be delivered up to the complainant.

The four slaves bequeathed to Mary Dougherty for life, and at her death to be left free, <fcc., are affected by the same principle, so far as the bequest violates the law of 1841. -But th.e life estate of Mary Dougherty is not thereby impaired.— A gift over, which is void, cannot defeat a vested interest previously given.

It is ordered and decreed' that the slaves, old Tenah, and Clarissa and her children, Anna, Sarah, Thomas, Louisa, and John, be delivered up to the complainant — that the rents arid profits of the real estate of the testator be paid to the exeeutors, to be by them held and applied to the fulfilment of the purposes of the will, as herein declared and established ; and that the parties have leave to apply, from time to time, at the foot of this decree, for such further order as may be deemed necessary — costs to be paid out of the assets of the testator’s estate.

The complainants appealed, on the following grounds:

1. That the testator made no disposition of the bulk of his real and personal estate, except in the event of his niece (Ann Dougherty) outliving complainant, and, ha that event, and that event only, bequeathed and devised the same to her, and therefore the fee or estate therein devolved in the meantime, and until the happening of the contingency, on the complainant, as testator’s only child, heir at law and distri-butee.

2. That even admitting that the testator did not die intestate, as to any portion of his estate, the law will imply an estate in the heir at law, in preference to a stranger or even a niece, and the Chancellor, it is respectfully submitted, should have decreed accordingly.

3. That it is manifest from the language of testator’s will, that of an illiterate man, *imps •consilii,*that he intended only a contingent estate to his niece, leaving the intermediate as-*68tate or income, to devolve or enure to the benéfit of his only son and child, and heir at law.

i Yes.Sr.485. Jac. 468. Partite"^430 p' '

4. That even admitting that the testator intended to ex-cjuqe an(j j^g exciuded his son from the intermediate income, and the same is to accumulate until the contingency contem.plated by the will shall be determined, yet the executors have no right to intermeddle with or receive the rents and profits of the real estate, and the real estate, and the right to receive its rents and profits, will at least devolve intermediately on the complainant, as testator’s heir at law, in trust for the party beneficially entitled.

5. That his Honor should have ordered the executors to account generally, especially for the rents of real estate, and wages of negroes.

. 6. That the decree was, in other respects, contrary to Law and Equity.

YeadoN & M’Beth, for the complainants.

Petxghu & Lesesne, for the defendants,

Joi-iNSTON, Ch.

delivered the opinion of the Court,

"We concur that this case is decided by the cases of *Gibson*v. *Montfort, Gurney*v. Fitzgerald, and *Ackus*v. *Phipps.*

Gurney v. Fitzgerald, lord Eldon says, “the general principles are these: when personal estate is given to A. at 21, that will carry the intermediate interest. If the testator gives his estate, black acre, at a future period, that will not carry the intermediate rents and profits. *But where he mixes up real and personal estate in the same clause,*the question must be whether he does not *show an intention that the same rule shall operate on both.”*“Here,” proceeds his lordship, “the property was partly real, partly personal, and partly of such a description that the testator does not seem to have known whether it was real or personal. He does not by his will create any trust, but makes a legal devise and bequest of the whole together. Then is not the weight of authority in favor of the proposition — that when real and personal estate are *given in this way,*the intermediate profits of *both*must *go*together.”

The inference arising from the combination of realty and personalty, in the same testamentary disposition, is that the testator, in this case, intended his niece to have the intermediate rents of the realty, in exclusion of his son ; and this evidence of intention is strengthened by the expression of another intention, exactly harmonizing with it, to wit; that the son should have no more out of his estate, than an annuity of $700. This, although insufficient to exclude the son without giving the property over to another, certainly helps to a more enlarged construction of the clause, in favor of the niece j and enables us to determine, with more confi*69dence, that that clause extends to the intermediate profits, and gives them away from the son.

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

The whole Court concurred.

*Decree affirmed.*