Present-Chancellors Rutleber, Hutson and Mathews.

#### William Sams vs. Benjamin Mathews, Edith Mathews, Jane Simmons, Mary Middleton, Arnoldus Vanderhorst and wife.

CEPTEMBER 1785

CASE XXVIII

The complainant stated as follows: That his testator, 1 Etanyarne, on the 27th of August9 1772, made his wdl~ md among sundry other bequests gave the fbllowmg one to his grand-son Charles Sums and grand-daughter 5e~ rali Mathews: 66 Another of the said six lots or shares, (viz, of the pemonal estate,) 1 lar&iy give and hti~uceth. the use of, to and for my sa~d grand-son Charles Sases and grami-daaghtcr Sarah ulathews, equally to be thn ted as aforesaid between them, with all the issues and profits (except as hereinafter :noutkoned) arising therefrom after they my said executrixes and executors shall have ds~ ducted the suni of 50001. current money, which I hereby authorize them to do, and pot out the said 5000L at inte.~ rest on good secucity: thenceforward yearly and every. year during the term of the natural life of their mother Mary M'Gillivray or Sums my daughter, &c.; aad the sevoral negroes OF slaves which shall behmg to their re-dpective lots, and that shall ho left after the duduction of *128the said 50001. and division between the said Charles and Sarah shall be made as aforesaid, shall during the resPective natural lives of the said Charles and Sarah be used, occupied and employed on those or some of those lands which I have hereinbefore left them respectively the use ol, — that is to say, by *my said executrixes and*ex«. *editors*for the use and behoof of the said Charles and Sarah duiúng his and her respective *minorities,*and by *themselves afterwards,*but at their severax *deaths*the *principal*of their respective moieties or one half part of the said one sixth part of my said personal estate remaining after the aforesaid deduction, and the offspring and increase of the females of the said negroes thereto belonging, shall be by my said *executrixes and executors equally*shared, divided and delivered to and between the *respective*issue of the *respective bodies*of my said *grandchildren Charles Sams and Sarah Mathews*lawfully begotten, for their several and i*espective uses and behoofs for ever; or for *default of*such *issue surviving,*of either oí them, the said *Charles Sams*and *Sarah Mathews,*then and not otherwise the whoxe *principal*of both the said moities or one half parts as last abovementioned, and the offspring and increase of the females of the said slaves, shall go, and be, and remain, to and for the use and behoof of the *survivor*of them the said *Charles Sams*and *Sarah Mathews,*for and during the *natural life of such*survivor,, and no longer; and at his or her *decease,*to and for the use and behoof of the *issue*of the body of such survivor lawfully begotten and *surviving,*equally to he shared and divided between them as aforesaid if more than one; and for default of axx such issue, then, and not otherwise, to my *right*heirs for ever.” That testator nominated his daughters the defendants Edith Mathews and Jane Sim-mops and complainant’s wife executrixes, and complainant and testator’s grand-son W. Mathews executors of his said will. — Bill further sets forth that testator, soon after making his will, died, leaving it in full force: That complainant proved the same, qualified as executor, and took upon himself the burthen and execution thereof: That the personal estate was divided as testator directed inte-*129*■/Si*equal parts, ami the shares of the several legatees delivered them: Charles Sams and Sarah Mathews being entitled to only one sixth part, it was equally divided, and Benjamin Mathews x’eceived his wife's part, and Charles Sams was ]>:it into possession of his share: That sometime a iter the division, Sarah Mathews died, leasing a daughter* who whs entitled to her mother’s share: Charles Ban's survived his sisfer several years, but is now dead without issue: And soon after his death complainant possessed himself of the shave, to he distributed either amongst the legal representatives of the said Charles Bams, or the right heirs of the testator, who might be entitled: Soon after Benjamin Mathews net up a claim in the behalf of his daughter, and applied to complainant for that purpose: but he not thinking slie lmd any right, refused to give up the estate; but Benjamin Mathews got possession of some of the negroes and retains them, and threatens suit for the remainder,, The other members of the family of the testator also set up claims; and complainant himself being a residuary legatee of said Charles Sams, and he and his wife being grand-chiidi’cri, he thinks they have as good a right as the others, to a distributive share. — An complainant cannot undertake to determine these rights, lie submits them to the determination of the court.

*127R. B. p. 84

*129To the foregoing bill the defendant Benjamin Mathewd lias answered and admitted all the facts stated in the bill Defendant denies that any of the other defendants have any right to the said estate, and insists that it being per-ennal estate, the remainder over Is void: That it was the manifest intention of testator that his grand-children and great-grand-children should stand in the place *oí*such, of his children an were their respective ancestors,- and should have such estate as they (his children) would have been entitled tc had they been living, as is evidenced by the general tenor of his will* and particularly by Cue bequests to the defendant Elizabeth Vanderhorst and his grand-daughter Mary Gibbes, who was the mother of the defendant M. Middleton. Defendant refers generally tv the will, and not to any distinct clauses in it, and conclude^ *130his answer in tlic usual manner. — The defendants Edith Mathews, Jane Simmons, A. Yandorhorst and Ms wife, by their answers severally, admit all the facts stated in the bill; and defendants believe and admit that the defendant Benjamin Mathew's set up a claim in right of his daughter, but that complainant refused to give it up for the reasons in bill mentioned; and defendants are of opinion that; he was justified in so doing, they being all of them more nearly related to testator than the said Benjamin Mathews’s daughter: Defendants believe and have heard that the defendant Benjamin Mathews is in possession of several of the negroes belonging to said estate, of which they hope he will be obliged to account for the work and la-bour; and that their light to the said estate will be preserved to them — and deny all combination, &c.

The defendant Mary Middleton answers by her guardian, and says, that she knows nothing of the several matters and things charged in bill, but being an infant of tender years, she hopes the court will protect her in whatever right or title she may have in the estate now in question, aud concludes her answer as usual.

The principal point that will be contested in this cause is, what construction the words of this clause of the will shall have, aud particularly the last part of it, which disposes of the estate after the death of the survivor without issue among the right heirs of the testator — there being no provision at all made for the issue of the person dying first, in case the longest liver should not leave issue, but the estate in that event is bequeathed to the right heirs of the testator.”

The cause came on to be heard on the 16th and 17th September, 1785.

Mr. Hugh Rutledge and Mr. Pringle contended, on the part of the complainant,

that the limitation over was too remote, and the contingency never happened — Mrs., Mathew's died before Charles Sams, leaving issue; Charles Sams left no issue: That the remainder over was void, and the absolute estate vested in Charles Sams: That this appears to have been the intention of the testator. The will coniines the bequests.- to. the tes^ator’e several daughters* *131and their issue iu a direct, line, without any intention that a,vy issue ol‘ one daughter should take any thing from the chare of another daughter, hut that it goes io his heirs generally. The use of the word ££ respective'” in the will, destroys the cross remainder — cross remainders are not favoured. The counsel cited the following cases: 1 Vesey 54-153. 1 Atk. 482, 579. 2 Atk, 308. 4 Bac. 304, 382. 1 Chanc. Cas. duke of Norfolk’s case. Eq. Cas. abr. 293, 444. Cowper’s Rep. 31, 797. 2 Stra. 569, 969, 996. Fearn. 341, 7, 371, 358. 1 Ventr. 229.

Mr. T. Pinckney and Mr. Bee argued on the part of the defendant

That the testator meant to give an equal share of his estate amongst his daughters in the first instance, and then to their issue. Then whilst any issue, of a daughter is living, the right heirs (spoken of in the will) cannot be admitted to take. If they are preferred to the descendant of a daughter, this would create an inequality. The words ££ all such issue” are very material. The last clause in the will explains who are meant by the words £‘ his right heirs” — the limitation over is not too remote. — it is after a failure of issue of a life in being. 'The counsel quoted Fearn. 356, 363, 416. 1 Atk. 469. Mr. E. Rutledge cited 2 Vern. 545.

The view of the cause taken by the court, appears from chancellor Mathews’s notes.

££ To make cross remainders there must be cither ex - press words, or a *strong necessary*implicationWilis are to be construed liberally, so as to make the *intention*operate, if not against the express rules of law; hut where the rigid rule of law is against the plain intention manifested by a strong necessary implication, it must be sub ject to such correction as will soften the rigor of the lave, and make way for the real intention of testator: summum just, summa est injuria.

£C To find the true construction, the whole will must he taken together, and not disjointed parts of it.

££ In the first place — It appears clearly to have beca the testator's intention to divide his whole estate, *equally*between all Iris children and their representatives *th?p, living-.*And that the *share*of each should follow the *direct**132line of tliejtrsí *taker,*until her descendants were extinct, Even then the testator makes no other limitation than what the law made for him, viz. to his right heirs. If, therefore, the limitation to the right heirs was to take P^ace’ ^ie Pr'imary object of the testator would be defeated, because oue half of one of the first taken shares, Would go away from her descend,ant living, which would create an inequality between his children, contrary to his *intention,*

‘í It must be admitted, there are words, which, by the strict rules of law, viz. *‘*respectively’ and <severally,’ disjoin the estates of the issue of Charles Spins and Sarah Mathews, pnd apparently forbid cross remainders. Yet there are other words which strongly imply them, viz, *i*and for default of *all*such issue, *and not otherwise,*to hia right heirs.* These words exactly correspond with the first part of the will, which makes an *equal*division amongst testator’s children in the first instance, and shews an intention to continue it in that line whilst there are any to take. Therefore the words ‘ *all such issue,’*must refer to the whole issue of Charles Sams and Sarah Mathews; and the other words * *and not otherwise’*are a confirmation of such intention. If this ]¡ad not been his intention, lie would have used words less emphatic, as *‘*and in default of such issue:’ Then the words *such*would have re-, ference to the *next*antecedent *e*issue of the survivor.* But as the words are ‘ all such’ *<*and not otherwise,’ they must have a more general reference, and go hack to *‘*a default of *such*issue of *either*of them, then *and not otherwise’ ‘*to his right heir,’ If this construction is not to prevail, the limitation over to the right heirs is so remote a possibility as the law will not allow; for the first limitation is to the issue *generally*after a life in being, and then to the right hems: This may run to a century, and lord Macclesfield says, in cases of executory devises, the ntniost extent fo be allowed ought not to be more than thirty years, B.esides, here is the issue of the lives in being, interposed between them and the right heirs, which bars the limitation oyer to them. Then if the issue generally of Charles Sains and Sarah Mathews are not meant by ‘ all such issue,’ and the limitation to the right heirs *133is too remote., who is to take the remainder? It has bcpn said, it is an interest vested in Charles Sams as survivor of Sarah Mathews. This cannot he, because he has no more than it life estate, *‘ and no*longer/ therefore it cam not he such a vv&ted interest in him as he can dispose of; but it must still remain subject to the disposition under the will of 3. Stanyarnc, if that can he properly ascertained.

“ It therefore appears, that there is so strong a nt cessary- implication of a cross remainder, to make the will consistent, and to fulfil the intention of the testator, that tine construction must he in favour of cross remainders between the issue of Charles Sams and Sarah Mathews, and that the issue of Sarah Mathews must take the ‘ whole principal of both of said moieties/ agreeable to the worde¿ and also the true intent and meaning of the testator/*

And the court decreed, that the share of the testator, John StaisyarrNs personal estate, bequeathed to Charles Sams, is vested in defendant’s daughter; and that the same be delivered by complainant to defendant in truss for her: Thai the complainant account before the master for the profits of the negroes, from the time of Charles Sams’ death, and pay the amount thereof (after deducting the costs of suit) to the defendant, in trust for his dangle Í;;Il*o