#### American Bible Society and others *vs.*William P. Noble and others.

*Wills and Testaments*— Devise *to Corporations.*

Testator, being the owner of two large estates, each embracing real and personal property, made disposition of the greater part of one estate in the first part of his will, and in a subsequent part, relating to the “disposal” of the other estate, directed his executors to sell “the whole estate,” and then proceeded to dispose of the proceeds of the sale: *Held,*that the direction to sell related only to the estate mentioned in that part of the will, and did not embrace some portions of the other estate, which the will did not dispose of.

Where a testator owned a large real and personal estate, which he had inherited from a deceased brother, and to which he had added a large tract of land, purchased with the proceeds of the crops of that estate, *held,*that his devise “of the estate of my respected and greatly lamented brother,” embraced as well the estate he had inherited as the land he had purchased.

A bequest of a negro woman “and her descendants,” will include all her issue born before or after the date of the will; so, also, a bequest of a negro woman “and her children,” will include all the children ; but a bequest of a negro woman simply, by name, will not include her children born before the death of the testator.

Testator directed a sum of money to be placed at interest in a bank, “which sum, when thus placed, I do hereby cheerfully give to J. M. And do hereby so settle it, that no person or persons whatever, under any circumstances or pretext whatever, can deprive him of it during his natural life. That J. M., himself, shall not be allowed to touch, or use, or squander one cent of the principal: but only to draw and make use of the lawful interest annually, as may seem to him best.” *£eld,*that J. M. took an absolute interest in the money, with right to dispose of it as he pleased.

Where there is no charge of insolvency or misconduct against an executor, the Court will not deprive him of the privilege, which the will gives him, of selling lands, and direct the sale to be made by the commissioner.

A devise of lands, to be sold by the executors, with directions to distribute the proceeds among certain religious corporations, is a devise of personalty, and is not prohibited by the Act of 1733. (3 Stat., 341,) excepting corporations from the objects of the devises of land.

BEFOEE JOHNSTON, OH., AT ABBEVILLE, JUNE, 1859.

The facts of this case are stated in the report of his Honor, the presiding Chancellor, as follows :

In order to fully explain the situation of this case, it may *157be proper to look into circumstances which preceded the filing of this bill.

John B. Bull, of Abbeville, died the 6th of January, 1855, leaving neither father, mother or lineal descendant, but leaving a widow, who was an alien, and three first cousins. He was supposed to have died intestate, and a bill was filed in 1855, by the cousins, against the widow and the administrators, of whom she was one, for partition of the estate. A question was raised at the hearing, which took place in June, 1855, whether the widow, under the Statute of 1828, was entitled to a part of the real estate. It was decided against the widow; from which decision an appeal was taken, and resulted in affirming the decree at Columbia, December, 1855.

As respected the personalty, the order of the Court was, that the bill stand until the expiration of nine months from the death of the intestate, and that then a writ issue for the partition of it, and that the commissioner inquire into and report upon the matters of account. At the expiration of the time fixed, a writ of partition issued; and on the 20th of November, 1855, the commissioners in partition having made their return, it was ordered that, after advertising for at least twenty-one days, the commissioner sell the slaves at Abbe-ville Court House, on the 20th aud 21st of December following, or. some convenient day or days thereafter, at, public outcry.

On the 17th of December, three days before the intended sale, the following order was passed, which explains itself:

*“Andrew W. Burnett, and next of kin, vs. William P. Noble, admi?iistrator, et al.*

It appearing, since the writ of partition [was] issued in this case, and the order [was] made for the sale of the slaves for partition among the parties interested, that a paper (which has been exhibited to me,) purporting to be the last will and testament of John B. Bull, deceased, has been discovered, *158which materially changes the disposition of the slaves and [other] property. On motion of Thomson and Fair, for Mrs. Sarah Bull, Ordered, That the order for sale heretofore made and directed to the commissioner of this Court, be rescinded; and that he do not sell, as ordered, until the further order of this Court.

J. JOHNSTON.

December 17, 1855.”

The next order in that case was passed by myself, on the 17th of January, 1856, and I have special reasons of my own for wishing it set out in full, not that it is very necessary to do so for the purposes of the present case, but I prefer that it should speak for itself, as it will serve to correct what it has been represented to contain.

*“Andrew W. Burnett, et at., vs. William P. Noble, et al.*

This morning, Mr. Rhett appeared before me, at chambers, during the Appeal Term at Charleston, and moved a rescisión of the order passed by me, suspending the order, which had been previously made by myself, for the sale of the slaves of the estate of the late John Bull.

It will hardly be necessary to observe, that the order of sale was made in conformity to the record and judgment in this case, in which the decedent, Mr. Bull, was, by all parties to the record, stated to have died intestate; and, of course, all the rights of the parties were based on that assumption.

On my return home from the Court of Appeals, [in Columbia,] in which the final decree was made upon the only question carried up for revision, I was met by the son of Mrs. Bull, [by a former marriage,] who informed me that a will of the decedent had just been discovered by himself, which he submitted to my perusal. The day of sale was nearly at hand, and no time was to be lost. But I directed him to go to Columbia, and submit the paper to Mr. Thomson, his mother’s counsel, and also to the Faculty of the Theological Seminary, which had an interest in some of the *159legacies created by the will; and, on his return to Abbeville, to present it to the executor named in it, and deposit it with the ordinary. He returned from Columbia as speedily as he could, with a motion, drawn up by Mr. Thomson, for the suspension of the sale until further order. This I granted, and the time of the sale was so near, that there was hardly time left to deposit it, and reach the plantation, so as to stop the negroes from being brought to Abbeville. Of course, I had little time for deliberation. Besides, I may mention the peril of mistake in all business done at chambers. But I ventured on the measure, expecting as a matter of course, that if the suspension produced any injury to any party, a motion would soon be made to rescind the order, and let the sale go on. The suspension was, in fact, made in order to give time to the parties interested in the will to propound it, or take such other course as they might be advised to pursue.

Accordingly, when Mr. Rhett mentioned to me his intention to move before me, I instructed him to give notice to the Rev. Dr. Adger (interested, as I understood, as one of the directors of the Theological Seminary,) to appear with counsel to hear the motion, and oppose it, if he deemed it proper. At the making of the motion, Dr. Adger appeared with counsel (Messrs. Simonton & McCrady) on the one side, and Mr. Rhett on the other.

“Mr. Rhett accordingly moved a rescisión of the suspending order, and that the sale should *proceed,*and stated that he wished Tuesday, the 12th of next month, to be fixed as the time of selling.

“I stated that I was willing to recall the suspending order, and to order that the sale should go on, but that the order to be passed for that purpose could not reach the commissioner for a, few days; that, then, time should be given for the advertisement of so large a body of slaves; without which a sacrifice might ensue, and that I should fix upon some time near the 1st of March. This length of time I thought the interest of all parties required; and if the sale were precip*160itated, the sale would be prejudiced. I had offered, also, to make an order leaving the time of sale to be fixed by the commissioner.

“Mr. Rhett immediately withdrew his motion. But I feel disposed to pass the order of my own motion. It appears to me the suspending order was improvident, calculated to create inconvenience on the part of the administrator. He had sold off the provisions, &c., preparatory to the sale; and the preparation to retain and employ the negroes must be expensive, especially as the suspension is not for any certain time, but until further order, and liable to be terminated at any moment. On the other hand, a sale now, when negroes are selling high, will rescue the property from the casualty of depreciation; and if the proceeds be impounded, the fund can be made to answer to all parties, whatever shape their interests may assume under the will. I am not at liberty to decide that the will cannot be established, and I should take care that, if it can be established, those who may take under it shall have an opportunity to protect their interests.

“ It is ordered, that the order heretofore made, suspending the sale, be rescinded; and that the commissioner, after advertising the property for a length of time satisfactory to himself, not shorter than the length of time required by the original order of sale, be at liberty to sell it on a day to be fixed by himself, upon the terms set forth in the original order of sale, and that he retain the proceeds of sale, and the securities taken therefor, subject to the further order of Court: *Provided,*always, that if, in the judgment of the commissioner, (after enquiring into the preparation that may have been made for retaining and employing the slaves,) the sale hereby permitted to go on, will be prejudicial to the interests of the estate, he may omit to advertise and sell; and in that case he shall report the facts to the Court, and take its further order.

“ It is ordered, that whatever expenses may have been, or may be incurred, in consequence of the suspension, be chargeable upon the estate. It is further ordered, that the *161will, if not already deposited in the ordinary’s office, be deposited with the commissioner, until further order, subject to be used by any party desirous to propound the same for probate; and that thereupon the commissioner give notice of its contents, and of this order, (this clause of it,) to the parties interested under it, by advertisement, and that he attend the Ordinary’s Court and the Law Court, with the will, when proceedings for its establishment may take place, and he is summoned.

Charleston, at Chambers.

J. JOHNSTON.

January 17,1856.”

The sale proceeded, and the proceeds are involved in the present suit. The will before mentioned was propounded in the Ordinary’s Court, and was required to be proved in solemn form, and under various appeals was carried before the Court of Errors, where it was adjudged to be a valid will; and being admitted to probate, Wm. P. Noble qualified as sole executor.

This will is the subject of construction in the present case; and as I desire that the view I may take of it shall be open, in the fullest manner, to correction, 1 prefer that it be read at length. The original, which is an autograph, is in the following terms :

“ In the name of our Lord and Saviour, Jesus Christ, the friend of sinners: in the name of God the Father, Sou, and Holy Spirit, Amen — I John B. Bull, of the State of South Carolina and District of Abbeville: considering the shortness and extreme uncertainty of this present mortal life, and the certainty of death: do hereby make this, my last will and testament, being the first and only one which I have made, bearing date this 8th day of April A. D. 1843, and now I by this my writing, cheerfully will, that after my decease, my physician’s account shall be paid by my executors hereinafter named. Also my funeral expenses.

*162“Item 1st. I do hereby cheerfully give and bequeath *unto*my dearly beloved and honored wife, Mrs. Sarah Bull, in consideration of her untiring, gentle, Christian, dutiful attention to me, her unworthy husband, the following property, viz: All the lands which I at present own; lying on the South and West side of Little River. Which are comprised in the following four separate plats, — The land on which my dear, respected and lamented Mother resided. Said land was purchased from Mr. James McCarter, by my dear and greatly lamented brother Geni William A. Ball. And by him, was after our dear Mother’s decease, kindly given to me on the 21st of February, 1833, on which day he settled 'with me. This tract formerly belonged to the heirs of Mr. William Clark Senr and contained by the old survey 275 acres. But by a late survey it has been found to contain 320 acres. This plat was made by Peter B. Rogers Esqr—

“ Adjoining to this tract on the South and West side, lies the small square tract of land which I purchased from John Scott Esq containing 100 acres more or less,— Immediately between these two tracts lies a very small piece of land containing 1 1-4 acres of ground only. Which I purchased this present year (1842) from Mrs. Eleanor Scott. It was surveyed, measured, and the plat made by Mr — McKinney D. S. — On the East side lies the fourth piece, a small tract of land which I purchased from Mr William Clark Junr. which belonged to the heirs of Mr Alexander Clark. I have not had convenient opportunity to have this tract resurveyed. It was said to contain 150 acres more or less, A very small portion of it, lying on the North and East side of Little River, being inconveniently situated, I have disposed of to- — ■

“Item 2d. To my dear and respected wife, I also hereby give, my good and aged servant Doritha (Doll) and all her children, and grand-children, all her descendants, who are in my possession on either plantation, and on both plantations. Including the husbands of her daughters. — Pompey the husband of of Nelly, I make this kind and earnest request, *163that during the time of her natural life, Doll be treated with all that humanity, moderation and kindness which her advanced age and her faithful services call for. — also to my dear wife I hereby cheerfully give all the servants on my farm at Little River. Their names as follows, Venus, Sam, Andrew, with his wife Henny and their children Hiram and Sarah, Cumbo, Stella, Statira, Grace, Prince, Sylva, Jacob, and his wife Peggy. Jim and Scipio are Doll’s children and included in her family.

“Item 3d. To my dear and respected wife I also hereby cheerfully give all the stock on my farm at little River, horses., cattle, sheep and hogs. Also all the buildings and conveniences, All the plantation tools. All the, household furniture, which I own on both plantations. — And as a most particular mark of my affectionate respect and love, I hereby give to my dear wife, the large edition of Scott’s Commentary of the Holy Bible; which were given to me by my dear Mother at her death. Also all my religious books. — I hereby kindly and earnestly request of my dear wife, that whatever articles of jewelry, whether of gold or silver, which may be found in our house at the time of my decease, may be faithfully collected, and. committed to the care of some trusty pious agent. And that said agent by and with the advice and consent of my dear wife, do'without delay sell all such articles, and give the proceeds to the American Tract Society through their Treasurer.-

“ The nature of this writing in such, that I wish it distinctly understood, and settled firmly, and known in Law, that the property which I have given to my dear wife, I do, hereby, so secure unto her, that no person or persons whatever, under any circumstances whatever, shall be able to deprive her of any part of it, during the period of her natural life. And at her death that it shall be her privilege to dispose of it as .she may in her judgment and conscience think best.—

—“Of the estate of my respected and greatly lamented brother Geni William A. Bull Deed, I do hereby will and. *164earnestly request that my executors herein after named, shall after my decease, make the following disposal viz: Should my decease occur before the close of this present year (1S43) I request that the plantation with its necessary concerns, the field laborers, horses, mules, oxen and plantation tools, may quietly remain together under the charge of my overseer until the close of the year. That my family be permitted to reside where they are until the end of the year. That all the business may be permitted to proceed as usual during the year. That the remain— of the crop of cotton of the year 1842 may be made ready and sent through the agency of Mr Gollothan Walker of Hamburg to the care of Messrs Matthews & JBonneaw of Charleston So Ca, and requested to be sold by them as soon as shall be convenient. That they may, forthwith, be honestly paid in full for any and for all advances of money, which they have been so kind as to make for me. That Mr Gollothan Walker be authorized to draw on them like wise, for as much money as shall be sufficient, honestly and fairly, to pay every debt which I may justly owe in Hamburg and Augusta Ga. — Whatever money may remain after paying these, I request may be devoted to paying my other debts in the country, so far as it will extend. My note given to Alex Houston Esq, 1 request may be paid among the very first, with all interest due. That every other reasonable and just demand may be fully and honestly satisfied. That my overseer’s wages may be paid. And all just accounts properly attested may be paid. Should the crop of 1842 fail to pay everything, as it probably will, I hereby'request the crop of 1843 (“If the Lord will”) may be strictly devoted towards paying the remaining debts. To Oglethorp University, by subscription, I justly owe $300. I request that it may be fully paid as soon as possible. That money may be furnished sufficient to pay the reasonable and necessary expenses of James Morrow, Junr, while finishing his Collegiate course — That $340 (Three Hundred and forty Dollars) may be handed to my dear wife. Money belonging *165to the Estate of Mr. David Morrow Deed, which I have held, and have endeavored to improve. The interest has been paid up to April 12th 1843. So soon as every just debt can be honestly paid, I hereby request that my executors, proceed without delay, to make correct, lawful and prudent arrangements for selling the whole Estate. That as much as can possibly be sold for cash, be thus disposed of. That the remainder be advertised in due and correct time, and the whole of it sold, on limited credit. My Executors are hereby requested to require safe Bonds and good notes with approved securities. To use every prudent and lawful means to obtain as near the just value of the Estate as may in the nature of the case be practicable. If possible in attending to *this business*to avoid all litigation. Should any difficulty of any kind occur, that it be referred to the prudent judgment of three or five honest and disinterested citizens, who shall if necessary obtain legal counsel and decide to the best of their mature judgment. Should any doubt arise respecting the meauing and intention of this my last will, in any part or sentence thereof I hereby desire that the difficulty may thus be settled according to the plain import of the words used.-

“ As soon as the money can be collected, I do hereby request that the sum of f5,000 (five thousand dollars) maybe placed at interest in the Bank of Charleston. Which suni*, when thus placed, I do hereby cheerfully give to James Morrow Junr. And do hereby so settle it, that no person or persons whatever under any circumstances or pretext whatever can deprive him of it during his natural life. That James Morrow Junr. himself shall not be allowed to touch or use or squander one cent of the principal. But only to draw and make use of the lawful interest annually as may seem to him best. — So soon as the remainder can be collected, or as much as possible, I do hereby cheerfully request that my executors imme- proceed to divide the money into four equal parts, and I hereby cheerfully bequeath one part to the American Bible Society, the second to the American Tract Society, the *166third part to the Presbyterian Board of Publication, belonging to the General Assembly of the Presbyterian Church in the United States of America, 0. S. And the fourth part I hereby cheerfully give to the Theological Seminary, which is at present located at Columbia, So Ca.; and which is at present under the care of the Synod of South Carolina & Georgia. The said four equal sums of money, I hereby-request may be given by my executors for the use and benefit of said above named Benevolent and Christian Institutions, through their respective Treasurer. And if, as is possibly the case, through ignorance, I have failed to use such words as are customary in Law. I hereby plainly and positively desire, that may not prevent, the fulfilment and accomplishment of my wishes in the plain and obvious meaning and intent the words used. But that my executors take such prudent, timely & peaceful measures as may be effectual to secure the lawful and entire accomplishment of every part of this instrument of writing in its plainest sense, however defective in phraseology.—

“ And that there may be no litigation or contention concerning my affairs after my decease, or even dissatisfaction in any-way.- — -That my executors may be disposed, graciously directed and assisted by Spirit and Grace of God so as to deal justly, and properly and honestly dispose of *my estate*is my sincere and earnest desire. And that it may please the Lord in his great Mercy to sanctify and bless *this poor offering*in His Name given, so that some needy person may be assisted, and some poor soul may be brought to Repentance and Faith in the name of Jesus Christ Our Saviour, is the humble prayer of his unworthy servant.—

“And now into the hands of my Saviour, Jesus Christ, the Son of God, I humbly commit my Spirit in P'aith. Unto God, the Father, son and Holy Spirit, the only wise, living and true God, I humbly resign my Soul in the name of Jesus Christ. Amen.

“I do hereby choose and appoint "William P. Noble, Paul *167Rogers, and Edmund C Martin to be the Lawful Executors of this my last will and testament. Who are hereby solemnly requested faithfully to discharge their trust. — Again I repeat my injunction to avoid all Litigation. — I do hereby declare & acknowledge this to be my last will and testament, in testimony whereof I do now solemnly affix my name in the presence *of these*three witnesses.

“JOHN B BULL.

“April 8th 1843—

“ Wm H Davis

“ J L Bouchijllon Senr

“ E. C. Martin”

After this will was established, Sarah Bull, the widow of the testator, died in the latter part of the year 1857, leaving a will, by which she devised and bequeathed her whole estate to Dr. James Morrow, her son by her former marriage, constituting him her sole legatee, and executor of her will. The present bill was filed the 13th of May, 1858, by three of the four benevolent institutions mentioned in the will, for an account of their interests under the will; and the other benevolent society, the qualified executor, the next of kin, and Dr. 'Morrow, are made defendants.

The points raised at the hearing will be understood from the judgment delivered.

Johnston, Oh. In the third clause of his will, the testator provides : “ So soon as every just debt can be honestly paid, I hereby request that my executors proceed, without delay, to make correct, lawful and prudent arrangements for selling the whole estate,” &c.

It is contended that this direction is confined to the Savannah property; and does not embrace even the whole of that property, but that Berry Hill, a plantation purchased by the testator, contiguous to the body of the lands on Savannah, which he inherited from his brother, Gen. Bull, is excluded. *168Whether the words be confined to the Savannah estate, or be allowed their natural meaning, and be held to include the whole estate not specifically disposed of in a manner inconsistent with a sale; in either case, both realty and personal property would fall within their operation.

It is not a direction to sell the real estate on the Savannah, apart from the personalty appertaining to that estate, nor to sell the whole of testator’s real estate, wherever situated, in exclusion of his personal estate; but to sell the whole estate, whether it be real or personal.

The testator had specifically disposed of a large portion of his estate, real and personal; part of it for the life of the beneficiary, and part of it absolutely, but there was no sweeping legacy or devise given of whatever overplus there might be. So that, in any view that can be taken, there was material, without confining ourselves to the Savannah estate, for a sale, if the testator were minded to order one, in order to raise funds to meet special or general purposes.

As the testator manifestly intended to dispose of his whole estate, and has not done so unless the words “ the whole estate” be interpreted in their natural sense; and as his bequest of the residue of the proceeds of the sale directed, after the special legacies charged upon them, would, upon the construction contended for, constitute a special residuary disposition, and not a general residuary clause disposing of his whole estate: I am persuaded that such an interpretation of the will would be at variance with the testator’s intention.

The construction should be upon the whole will, and not upon detached portions of it; every word and phrase should, if possible, be taken in its full and natural meaning: and the leaning of the Court should be to give such construction to the whole as to prevent intestacy in any part of the estate.

It is argued that the words here used are employed with exclusive reference to the estate which the testator had fancifully designated, not as his own, but as the estate of his *169brother, from whom he inherited it. But I do not find enough to convince me that when he directed the sale of the whole estate, his attention was tied down to that special property.

The only use to which I perceive he directed bis executors to put that property, was to complete the crop of 1843, which was growing when he executed his will, and out of the proceeds of that crop, and what remained on hand of the preceding crop, to pay his debts — a purpose which he lived to accomplish himself. Now, if he had adopted the ordinary method of providing for his debts, in the beginning of his will, this direction for the employment of this plantation, for that purpose, would have been found at the head of the will; and not in the middle of the third clause, which embraces subjects of a somewhat miscellaneous character: some of which undoubtedly relate to other portions of his estate, and others as certainly relate to his whole estate, without respect to location. If, then, we transpose that portion of the third clause, of which I am speaking, to the head of the will, the whole becomes harmonious, and there would remain no doubt that the direction to sell the whole estate would mean the whole; and would have no such confined operation as that contended for. Then it would be followed by the devise of the Little River lands to his wife for life, with a power of further appointment in her; by the gift of certain slaves and their issue, and of other slaves. But still there is, as yet, no disposition of Berry Hill, nor of the lands formerly owned by Gen. Bull; nor any disposition of the remainder in the Little River lands, supposing his wife should make no disposition under her power.

If the testator intended to confine his direction to sell, to the land formerly belonging to Gen. Bull, then he intended to die intestate as to Berry Hill — or he casually omitted one thousand acres of his own lands; in addition to a possible intestacy in the remainder of the Little River lands, which is scarcely credible.

*170If he contemplated Berry Hill as parcel of Gen. Bull’s estate, the principal support and object of the narrow construction, now contended-for, is taken away.

On the whole, I conclude, with confidence, that the order for sale should be, and was intended to be, general; and the effect of it is to dispose of every portion of the estate not disposed of by provisions inconsistent with such sale. It could not take in the negroes given by the testator to his wife, nor the estate for life given to her in the Little river lands. But it takes in the lands formerly belonging to Gen. Bull, and reaches to Berry Hill, and to every subject in his whole estate that would otherwise have been intestate; and would have included the remainder-in the Little river lands, had not his wife (who, though an alien, could take and hold the life estate till office found) executed her power of appointment,

I will not enlarge on this point, for I conceive it to be very plain. I will merely add that, upon the evidence, I should have held, had it been necessary, that Berry Hill was included in the order to sell, were that order confined to what the testator called his brother’s estate. The evidence taken by the commissioner shows, I think, that he so planted the estate, including Berry Hill, and so marked the cotton, whether raised on the one place or the other, as to show that he regarded them as one establishment. The admirable work of Sir James Wigram, (Wigram on Wills,) has done much to reduce to fixed principles the rules which should govern in such cases; much to restrain that license of construction that too much prevailed formerly and still prevails to an undue extent. When descriptive words find a subject that satisfies them in their natural and primary meaning, other subjects shall not be forced under their cover, though, otherwise, they might be accommodated to them in a less natural or secondary sense. But there is no primary, or natural, or legal sense, in which either parcel of these lands could be denominated by the testator *171“the estate of his brother.” The lands he inherited had no name, and, for convenience, he must speak of them by some description. In his fancy he called them his brother’s estate, by way of description. When he added Berry Hill to them, and afterwards spoke of them, did he not do what is very common? — did he not regard the addition as a constituent portion of the old establishment? I think he did. I think the evidence shows this. He has one overseer for both places. He allows the dividing fence to become extinct between them. He throws their productions, corn and cotton, together; and marks the cotton with one brand, which was on the place in his brother’s time. We have a case, somewhat similar, somewhere in our own books, relating, I think, to some wharf property in Charleston, in which the view I am intimating was taken ; and I concur in the remark of Sir James Wigram, (Wig. Wills, 22,) that in the case referred to (in argument) of *Doe ex dem. Oxen den vs. Chi-chester,*(3 Taunt., 147, s. c., 4 Dow, 65,) “the principle now under consideration was carried to its *full*extent.” In that case, the testator devised my “estate of Ashton” to Oxenden, and had an estate which he used to call by the name of his “Ashton estate,” the accounts relating to which were kept in his steward’s book under that name. Part of this estate only was locally situated at Ashton. Only so much as was thus situated was held to pass. This, I.conceive, was a strained construction. But the view I have taken renders it unnecessary to pursue this further. The direction to the executors to sell extended to Berry Hill as otherwise intestate, whether regarded as embraced in the land inherited from Gen. Bull or not.

The order to sell, also took in, as intestate, a portion of the slaves.

Part of the second clause of the will is in these words:

“To my dear and respected wife, I also, hereby, give my good and aged servant Dorethea,.(Doll,) and all her children and grand-children, all her descendants, who are in my pos*172session, on either plantation, and on both plantations, including the husbands of her daughters.”

So far, there can be no difficulty. Whether the testator referred to his possession, at the date of his will, or at his death — which, under the general rule, in all cases, he must be held to have done, *(Garret vs.*Garret, 2 Strob. Eq., 283,) can make no sort of difference: for the gift is of all the issue of Dolly, and on both plantations: and supposing him to have referred to the date of the will, yet, as I shall hold hereafter, the gift will extend to after born descendants on either plantation.

But he proceeds : “Also, to my dear wife I hereby cheerfully give all the servants on my farm at Little River:— their names as follows: Venus, Sam, Andrew, with his wife Henny, and their children, Hiram and Sarah, Cumbo, Stella, Statira, Grace, Sylva, Jacob and his wife Peggy. Jim and Scipio are Doll’s children, and included in her family.” I apprehend tiiat the testator intends here to speak of negroes on the Little River plantation, at the date of his will, as is evidenced by his proceeding to name them: and that he did not intend to refer to such negroes as might be on that plantation when his will began to operate at his death. The bequest will carry all those slaves named by him; and if there were any coming within the description, whom, in his enumeration he accidentally omitted, these would pass with the rest.

Among the rest, he gives Andrew and his wife Henny, with their children. I am not sufficiently put in possession of the facts to know, whether in naming those who in his list immediately follow those two, he has not attempted to name these children. If he did, then it follows, I think, that he lias given none of the children of Andrew and Henny, but those whom he names as such. But if he did not attempt to enumerate, I think he must be held to give all their children, born or to be born.

When I speak thus, I do not forget that it has been held *173that a legacy of a negro woman with her *increase, (Seibles vs. Whatley, 2*Hill Ch., 605,) does not include existing, but only future progeny. There is a distinction, however, in my mind, which I fear I should be incapable to convey, were I elaborately to attempt to impress it upon others. It may be sufficient to say, that the Court in dealing with the subject of *increase,*while it might have admitted that the term might be well applied, not only to after, but to prior increase, and so it might have doubted upon the subject of excluding the latter; yet it conceived that by long and pretty uniform usage in this State, the term *increase,*without more, had obtained a fixed meaning. It meant the progeny which was to proceed from the stock slave from the date of the instrument.. But has any .such restricted meaning been imposed on the term *children*or its equivalent ? Has this been done by the cases : or does such a meaning exist in popular language? Not to my knowledge. The cases are numerous and uncontra-dicted, that when property is limited by will to *children*of A. or B., all their children will take, whether born before or after the date of the instrument, provided they are born before the limitation comes to operate ; and so, if the limitation be to the *children*of C. or D. to take effect upon a contingency, the existing children will take, as well as others to come *in esse,*upon the happening of the contingency. The instrument takes in the existing children without difficulty. The difficulty would rather have been whether after bom children should be entitled. But the point is decided that after born children are *children*— come within the description — and the instrument shall open and receive them, as persons described, until the event happens compelling a distribution, and thus rendering it impossible to receive more. For examples of this kind, I refer to the cases of *Deveaux vs. Deveaux,*and *McNish vs. Guerrard,*decided in this Court. These cases, and others innumerable upon the import of the word *children,*show that it has not received a restricted meaning in law confining it to *post nati.*I regret that the *174decision in *Seibles vs. Whatley*was different as respects the import of the word *increase:*but I do not feel bound to carry it beyond its letter, and apply it to *children,*especially as in so doing, I should violate not only the popular understanding, but a uniform current of decisions. When the gift is *of*children, why should the meaning of the word differ from what it is when the gift is *to*children ? As to the other negroes given in the last passage I have quoted, they are given' by name or individual description, but without the accompaniment of their children, issue or increase, which amounts to no more than a gift of the existing and named or described negroes; and does not carry th *e post nati*issue. Such-issue is, therefore, in my opinion intestate, and falls under the direction to sell.

We approach now one of the most important parts of this cause.

Out of the proceeds of sale, when collected, the testator directs that the sum of ¡$5,000 be placed “at interest in the Bank of Charleston. Which sum, *when thus placed,*I do,” he proceeds, “hereby cheerfully'give to. James Morrow, Junr. And I do hereby so settle it, that no person, or persons, whatever, under any circumstances or pretext whatever, can deprive him of it during his natural life. That James Morrow, Junr., himself, shall not be allowed to touch, or use, or squander, *one cent of the principal,*but only to draw, and make use of, the interest, annually, as may seem to him best.”

The sum as placed at interest is, in the first instance, bequeathed to Dr. Morrow, in general terms, sufficient to vest the property in him. If we are to construe the legacy in parcels, the words which follow, forbidding himself, or other persons, from touching the thing given, as liable to the incidents of absolute property, are nugatovy and void. I am much inclined, however, to construe all the words together, and to regard this as the gift of an annuity for his life; the gift of the annual interest of the ¡$5,000 for his life, and not *175the gift of the $5,000. This Court — all Courts — should look to substance, and not merely to forms.

The direction of the Court upon this subject is, that the commissioner enquire for and report a suitable trustee, to hold the fund upon the terms I have just indicated; and that the executors, after making the investment, hold it on those terms until a trustee be reported and appointed, and then transfer it to such trustee.

When, by the death of Dr. Morrow, the *corpus*of this $5,000 annuity falls in, it will be time enough to enquire where it is to go; and that question is reserved.

Then, subject to this legacy of $5,000, the testator directs that the remainder of the proceeds of sale be divided into four equal shares, one of which he bequeaths to the American Bible Society, another to the American Tract Society, another to the Board of Publication belonging to the General Assembly of the Presbyterian Church in the United States of America, (Old School,) and the remaining share to the Theological Semiuary, at Columbia, under the care of the Synod of South Carolina and Georgia.

But objections are raised under the statute of the 9th April, 1734, 3 Stat., 382; the second section of which reads thus:

“That from and after the ratification of this Act, all and singular, every person and persons having any estate or interest in fee simple,” &c., “of and in any lands,” “shall and may have free power,” “to give, dispose, will or devise to any person or persons, (except bodies politic or corporate,) by his last will and testament, duly executed,” “as much as in him of right belongs, is, or shall be, all his said lands,” “at his and their own free will and pleasure,” &c.

This is the only statute of mortmain known, it is believed, to the legislation of this State. None of the English statutes on that subject were ever made of force here. But it is very proper to enquire what effect this statute, if still of force, has upon the devise in this case. It is plain, at the outset, that its effects, whatever they may be, are limited to the proceeds *176of the real estate. There is no prohibition as to personalty-in this statute.

Justice Blackstone (2 Bl. Com., 268, *et seq.,*Lib. 2, cap. 18) tells us, that alienations in mortmain *(in mortu*manu) are transfers of land to a corporation, whether sole or aggregate, ecclesiastical or temporal; in consequence of which the lands became perpetually held in one dead hand.

By the common law, he says, any man might dispose of his lands to any other private man at his own discretion, especially after the feodal restraints were worn away. Yet, in consequence of those, it always was and still is necessary (F. N. B., 121) for corporations to have a license of mort-main from the crown, to enable them to purchase lands. For, as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of *escheat,*and *other profits,*by the vesting of land in tenants that can never be attainted or die. Besides the license from the king, it was also requisite, where there was a mesne or intermediate lord between the king, the lord paramount and the alienor, to obtain his license also, (upon the same feodal principles,) for the alienation of the specific land. And if no such license was obtained, the king,-or other lord, might respectively enter on the lands so alienated in mortmain as a forfeiture. To obviate this forfeiture, .however, when no license was obtained, the religious houses, (~who set themselves to circumvent the law,) inasmuch as the forfeiture accrued, in the first place, to the immediate lord of the fee, contrived that the alienor should convey to the religious house, and instantly take back again, to hold as tenant of the monastry; 'the instantaneous seisin in which, probably, was held to occasion no forfeiture; and then, in virtue of some other pretended forfeiture, surrender or escheat, the society entered on their newly acquired seignory, as immediate lords of the fee.

The consequence, when such donations became numerous, was, that the feodal services ordained to the defence of *177the kingdom were daily visibly withdrawn; the circulation of landed property from man to man began to stagnate; the lords were curtailed of the fruits of their seignories, their escheats, wardship, relief, and the like. This state of things occasioned the second great charter, 9 Henry III, (A. D., 1225,) by which, and by that printed in the common statute books, it was ordained that all such attempts should be void,, and that the land should be forfeited to the lord of the fee.

This prohibition extended only to religious *houses,*and not to sole corporations, and being evaded by the bishops* the abuse was attempted to be corrected by the statute *de religiosis,*7th Edw. I, which provided, that no *person*whatever, religious or other, should buy or sell, or receive under pretence of a gift, any title to lands, or by any contrivance appropriate them to himself, in mortmain, upon pain that the immediate lord of the fee, or if he should make default for one year, the lord paramount, aud in default of all of these, the king might enter on the lands as a forfeiture. The statutory prohibition as yet only extended to gifts and conveyances *inter partes,*and the device was adopted of bringing an action under a fictitious title against the tenant, who collusively abstained from defence, and thus the lands were recovered by law; thus originating the assurance of *common recoveries.*This abuse was met by the statute of Westminster the second, 13 Edw. I, ch. 32, which enacted that in such cases the true right of the plaintiff should be tried by a jury; aud if the religious house, or corporation, be found to have it, they shall recover seisin, otherwise the land shall be forfeited. To this statute others were added, not necessary to notice here. These were all frustrated by contriving that the lands should not be granted directly to the corporation, but to nominal feoffees *to their use,*distinguishing between the *possession*and *the use,*and giving to the corporation the-actual profits, while the seisin was in the nominal feoffee, who was accountable as trustee; thus originating *uses*and *trusts,*the foundation of modern English conveyancing. *178This was met, again, by the 15 Rich. II, chap. 5; which statute ordained that lands so purchased to uses should be amortized by the license from the crown, or sold to private persons; and that, in future, «íes should be subject to the statutes of mortmain, and forfeitable like the lands themselves. Moreover, large tracts of lands, which were purchased and fraudulently consecrated as graveyards, were declared within the scope of the statutes; and civil as well as ecclesiastical corporations were declared to be within the mischief contemplated by the statutes of mortmain. By statute 23 Henry VIII, ch. 10, it is declared that all grants of land, though not to corporations, yet for superstitious uses or charges erected for such purposes, should be void, if granted for more than twenty years.

The Mortmain Acts were suspended for twenty years by the 1 and 2 Philip and Mary, Ch. 8.

Then this general policy was further relaxed by the 7 and 8 Will. Ill, ch. 37, which empowered the crown to grant license, at its discretion, to alien or take in mortmain of whomsoever the tenements may be holder).

It having been held, (l Rep., 24,) that the statute 23 Henry VIII, ch. 10, before mentioned, did not extend to *charitable*but only to *superstitious uses,*and therefore land might be given to maintain a school, a hospital or other charitably institution; and it being apprehended that persons on their death-beds, might make large and improvident dispositions, even for charitable purposes, thus defeating the political end of the statutes of mortmain, it was therefore, enacted by the 9th Geo. II, ch. 26, (A. D. 1736, set out 1 Bac. Abr. Title charitable uses and mortmain, G.) two years after our own statute quoted by me, that no lands, or tenements, or money *to be laid out therein,*shall be given for, or charged with any charitable uses whatsoever, unless by deed, indented, executed in presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months from execution, and made to *179take effect immediately, and without power of revocation; and that all other gifts shall be void; (except that stocks in the public funds may be transferred within six months previous to the donor’s death.)

It will be seen from this statement of the great commentator, that if these English statutes were of force in this State, as they are not, there is not one of them that in terms avoids gifts to corporations, except when land itself is given, or when money is given to be laid out in land. The principal reason assigned for the statutes of mortmain, such as the vesting of land in corporations incapable of f'eodal services, the loss of escheats, wardships, reliefs, &c., and the perpetual stagnation of such property in the hands of those not liable to attainder or to death, apply only to the permitting lands to be conveyed, directly or indirectly to, and held by, such bodies.

The motive to the statutes is not so much to place a restraint on the alienor, (except for his protection, for example in the statute of 9th George II,) as upon the holding of’ the thing given by the alienee, i. e., on account of his legal and political unfitness to be the owner of lands; the mischief to the State of its lands being perpetually monopolized by those in whose hands it is not subject to the usual incidents of ownership.

The Theological Seminary, to which one-fourth of the residue of the proceeds of sale is given by Mr. Bull, is by its original charter, (8 Stat., 376, statute 1832, No. 2,574, § 1-3,) specially licensed and “empowered to retain, hold, possess and enjoy all such property as it” “may now” “be possessed of, or entitled to, or which shall hereafter be given, or *bequeathed*to, or in *any*manner acquired by” it, “and to sell, &c., the same,” “to the amount of $300,000.” Which charter is renewed (Acts of 1854, p. 347,) “with all powers, privileges and conditions heretofore, by the Act of incorporation, conferred upon said body corporate, with ability, power *180and capacity to receive, hold and enjoy property, real and personal, to the amount of §300,000.”

These enactments are sufficient — to say nothing of the Constitution of 178S — not only to license this corporation to take the land itself, had that been given, but to repeal the statute of 1734 — so far as this particular body corporate is concerned — if that stood in the way.

This corporation is, therefore, clearly entitled to the fourth given to it out of the fund involved in this discussion. It was contended, indeed, that should the other corporations interested in the same fund fail to make good their claim, the Seminary would be entitled to come in for the whole. But this is not an improper place to remark, that no such consequence can obtain under this will. The fund is not given between and among the beneficiaries, but it is giveu in parcels; to each, one-fourth, and no more.

The charter conferred by the State of Pennsylvania upon the trustees of the Presbyterian Board of Publication, authorizes the corporation “to purchase and receive, take and hold, to them and their successors, forever, lands, tenements and hereditaments, goods, moneys and chattels, and all kinds of estate which may be devised, or bequeathed, or given to them.”

This is a foreign corporation, and it has been decided, *[Bank of Jlugusta vs. Earle,*13 Peters R., 519; s. c. Decisions of Supreme Court United States, 277,) that though the corporation of one State may sue in another, it can make no contracts, nor enforce any liability in any State which is not within the terms of its charter; nor any of those which are against the laws of that other State. Chancellor Kent informs us, (2 Kent Com., 283,) that the English statutes of mortmain are- in force in Pennsylvania, so far as they are applicable to her political condition — so held by her Courts, which declared, that in virtue of them, “all conveyances by deed or will, of lands, tenements or hereditaments, made to a *181body corporate, or for the use of a body corporate, were void, unless sanctioned by charter or Act of Assembly.”

I have not access to the authority cited by this eminent commentator, so as to discover whether in the statutes intended to be included is that of 9th George II, nor is it necessary to know; for in the charter of this corporation there is the very license and privilege required by the law of Pennsylvania as -expounded by her Judges. Nor shall I enquire here, whether the law of Pennsylvania, whose office, so far as mortmain is concerned, would seem to be to protect her own lands from improper alienations, would be offended by an alienation in mortmain, in another State, of lands lying in that other State.

The true inquiry for me is, is it an offence against our own statute, which prohibits devises of lands to bodies corporate, for the testator, not to devise his lands to them, but to direct them to be sold, and bequeath the proceeds to such body; — a body, by the way, expressly authorized to receive the legacy.

It appears to tne impossible to deduce from any of the statutes anterior to that of 9th George the Second, or from any decisions made upon them, a legal conclusion, which, applied to our statute of 1734, would make it an offence to raise money by the sale of lands to be given, as money, to a corporation, either domestic or *foreign.*That statute is not of force here, and how then is it, or any decision upon it, to be applied to this case ?

*Curtis vs.*Hutton, 14 Ves., 541, referred to in the argument, if I understand the case, which is obscurely stated, was a case where money was to be raised from sale of lands, and, in connection with other personalty, was to be *laid out in other lands*for the support of a Scottish charity, and so expressly within the statute of 9 George II, under which the adjudication was made. The master of the rolls, in his observations, says it is settled by construction, though the statute contains no express prohibition against the bequest of money arising from sale of real estate, for charitable pur*182poses ; that such a bequest is within the spirit and meaning of the law. I have not been referred to the current of authority, and cannot discover it. But it is enough for this case that the case of *Curtis vs. Hutton*was decided on the statute of George, which is not of force here. It is not said any where, so far as I can discover, that such a bequest would have been void as an offence against any other of the statutes, at all resembling our statute of 1734. If it would have offended them — if the law was as now contended for, upon the other statutes, where was the necessity of enacting that of George II ? I would ask, under our own statute, which merely prohibits the giving the land to a body corporate, what offence is created by a provision that it be sold aud go to others ? Whatever objection may exist to a corporation holding lands, here or elsewhere, is not the objection obviated by a disposition which carries them to the possession of others, to be held by them upon the same terms as apply to all the other lands in the State? There was a minute objection raised to the title given in the will to this corporation. It differs slightly from that by which it was incorporated. But this error will not vitiate the bequest. (Angel & A., 178.)

And so I conclude that this corporation is entitled to the bequests made to it. The American Bible Society takes its charter from New York, and is empowered “ to hold, purchase and convey real and personal estate” to produce “ a net income not exceeding $5,000 annually.”

The English statutes of mortmain are not of force in that State; and no impediment exists except that by their statute of wills, as I understand, no lands can be devised to a corporation ; and by revised statutes, it can only take what it is specially authorized by its charter to take. This corporation is authorized to *purchase*real estate; but in *McCarter vs. The Orphan Jlsylum Society,*(9 Co wen, 437,) — a New York case — and we are bound by the New York decisions, as binding authority, as to the rights of her corporations under her *183laws — it is said to have been held that the word *purchase*did not include a *devise,*although devise falls under title by-purchase. The American Bible Society may *buy*and may *hold*and *convey*lands. But they can take no direct devise of real estate. They may take personalty. But in the *Theological Seminary of Auburn vs. Childs,*(4 Paige, 419,) it was held that prior to revised statutes a pecuniary legacy payable out of the proceeds of real estate, which the executors were directed to sell, was valid, although the corporation was not authorized by its charter to take real estate by devise; and the question is seriously put, with a leaning to the affirmative, whether such a bequest is not good even after the revised statutes.

Chancellor Walworth says: “I am not prepared to say that the devise of a power in trust to executors to sell lands for the payment of a legacy, charged thereon, in favor of a corporation, would be invalid, even under the revised statutes.” “ But I am satisfied that, at the time this will was made, and at the death of the testator, in 1826, he had the legal right to devise his real estate in trust for a corporation; and that the devise of such estate to his executors to sell the same for the payment of this and other legacies charged thereon, was valid. The feudal, policy having changed the ancient common law of England, and deprived the owners of lands of the power of devising the same at their deaths, the statute of wills was an enabling statute; and the exception as to corporations was strictly only an exception, and not a prohibition. The decision of this Court in the *Orphan House Asylum Society vs. McCarter,*is conclusive on this question. Although the decision of Chancellor Jones, in that case, was reversed, it was solely on the ground that the devise to the corporation was direct, and not to the executors in trust. Indeed, Mr. Justice Woodworth, who delivered the opinion of the majority of the Court, * * admits that if the legal estate had remained in the executors in trust for the corporation, and they had refused to pay over its portion of *184the proceeds of the property on a sale thereof, the complainant would have been entitled to relief.

“The cases referred to by the defendant’s counsel,” he proceeds, “are founded upon the prohibitions of the statute of 9 George II, ch. 36, (l Evans statute 324,) under which statute, although it contains no express words prohibiting a bequest of *money*to be produced by the sale of lands, for charitable purposes, it has been settled by construction that such a bequest is void, as being within the spirit and meaning of the Act — (14 Yes. Rep., 541.)”

1 have no better indication of the law of New York under' the revised statutes than the intimation of Chancellor Wal-worth in this extract. I have not access to the judgment of Chancellor Jones, referred to. But as both these are favorable to the view I entertain myself, I conclude that this corporation is entitled to its legacy. It will be observed that I have left untouched the fact that the testator has directed a sale out and out of realty and personalty indefinitely, which, of itself, equitably impresses the character of personal estate ou the proceeds.

The last charter is that of the American Tract Society, which is also from New York. It is also authorized to “ hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter,” the net income of which “shall not exceed $5,000 annually.”

This corporation stands upon similar legal principles with the American Bible Society, and is entitled to its legacy.

It is ordered, that the accounts in the case be referred to the commissioner, and that he state and report them.

That the commissioner be authorized to make sale, upon such credits as he may fix, (not differing from such as are usual in such cases,) of such portions of the estate, real or personal, as according to the foregoing opinion are subject to sale, and yet remain unsold, giving at least three weeks’ public notice thereof in the Abbeville newspapers, and in some one *185of the Charleston newspapers, and requiring bond, with at least two good sureties, and a mortgage of the premises, where land is sold, to secure all sums of and over twenty dollars, and cash for all sums under that amount.

And let the parties have leave to apply for any further necessary order.

The costs to come out of the estate.

The heirs-at-law appealed on the grounds:

1. Because, the will of John B. Bull, properly construed, does not dispose of the plantation called “ Berry Hill,” which, having been purchased by the testator in his lifetime, does not pass under the words “Of the estate of my much respected and greatly lamented brother, Gen. William A. Bull, deceased, &c.”

2. Because, there is no general residuary clause in John B. Bull’s will, sufficient to carry any part of his estate not covered by the direct gifts, all the directions in the will after the words “ of the estate,” &c., having manifest reference to that property and no other.

3. Because, the *post nati*children born of the negroes given to Mrs. Sarah Bull, in the second clause of the will, and the provisions, crops, and all articles at Little River, not mentioned in said clause, are intestate — the terms of the direct bequest being limited to the negroes *in esse*at the time the will was executed, and there being no general residuary clause sufficient to dispose of said negroes, and other property.

4. Because, the exception in the Act of 1734 constitutes a positive prohibition against *devising any estate or interest in land*to bodies politic or corporate; and the device to defeat the law and accomplish the same purpose indirectly — by ordering the lands sold, and proceeds given — should have been declared void, as opposed to the spirit of the express law, as well as to the principles i>f equity and sound morality.

5. Because, the charter of the three foreign corporations— being laws of foreign States — cannot repeal the South Carolina *186prohibition, nor enable said corporations to take anything from South Carolina not allowed by the laws of South Carolina. Charters of foreign corporations cannot give license to dispense with our law in regard to them.

6. But if otherwise, then neither the Bible Society nor the Tract Society, chartered by the State of New York, can take any part of the provision made for them, even according the Revised. Statutes of that State, which declare that corporations shall exercise no powers which are not expressly given. The right to “ purchase and hold” does not necessarily include the right to take by “ *devise,”*or even “ bequest.”

7. The trustees of the “Presbyterian Board of Publication,” chartered by the State of Pennsylvania in 1847, cannot take the *fourth*claimed by them under Bull’s will, executed in 1843 — because the gift, made before the corporation had any existence, is not to the corporation chartered or in the terms of the charter; and also, because of the statutes of mortmain, which are of force in that State.

8. The Theological Seminary cannot take the one-fourth of the lands intended for them, because its charter, although a license to the extent it goes, does not conflict with the Act of 1734, or expressly confer the right to take by devise.

9. Because, it is respectfully but earnestly submitted that there is no law or principle of equity which requires the Court to decree the whole of this large estate away from, the heirs-at-law, and give it to irresponsible, soulless political corporations, some of which are foreign to our jurisdiction, alien to our policy, and under the control of persons, and the exclusive government of States inimical to our institutions.

James Morrow, one of the defendants, appealed on the grounds:

1. Because his Honor held that the negroes born after the making of the will, are not egabraced in the bequest to Sarah Bull, in the second or other clause of said will.

2. Because said slaves, if not embraced in said bequest, are *187intestate; and two-thirds of them, or their value, should have been declared the right of James Morrow.

3. Because his Honor should have held the bequest of $5,000 to James Morrow, his absolute property; or declared fully what his estate was; with interest on the same from testator’s death.

4. Because the pleadings made the question, whether the executor should pay to James Morrow, the debt acknowledged by the testator, in his will, as due the estate of David Morrow, deceased ; which the executor declined to pay without instruction, and was claimed by the defendant, James Morrow.

The executor appealed from so much of the decree as orders the commissioner in equity to sell Berry Hill, on the ground :

Because the will directs the sale to be made by the executor, and it is his right and privilege to make it.

*McGowan,*for the heirs-at-law, cited on first ground : *Law-ton vs. Hunt,*4 Rich. Eq., 247; *Willis vs. Soyers, 4*Mad., 209; 8 T. R., 375; 4 Maul. & Sel., 550; Gilb. on Dev., 84; 1 Jarm. on Wills, 720 ; on third ground: 1 Jarm. on Wills, 693; *Buist vs. Dawes,*3 Rich. Eq., 281 ; *Tydiman vs. Rose,*Rich. Eq. Cases, 294; 1 Rop. on Leg., 188; on fourth and following grounds: Act 17S9, 5 Stat., 110; Act 1734, 3 Stat., 382; 2 Brev. Dig., 335 ; Hill on Trustees, 1, 65,84, 196, 691, 705; 10 Ves., 540; 9 Ves., 399; 2 Vern., 387; *Brown VS. Leigh,*7 Ves., 501, note; 3 Meriv., 19; 2 Story Eq., § 1183; *Fountain vs. Ravenel,*17 How., 369; *Attorney General vs. Christ’s Hospital,*4 Beav., 74; 2 Keen., 150; *Mayor of S. B. vs. Attorney General, 5*H. L. C., 1; *Haskel vs. Rowe,*3 Brev., 242 ; *Thompson vs. Gaillard,*3 Rich., 418; 2 Ves., 179; Sug. on Pow., 115 ; *Burnett vs. Noble,*10 Rich., 530; 1 Wins, on Ex’ors, 554; White and Tudor, L. C., 594 ; Dud. Eq., 212 ; *Lindsay vs. Pleasant, 4*I red. Eq., 321 ; *Craig vs. Lester,*3 *188Wheat., 560 ; *Baptist vs. Hart,*4 Wheat., 40; 1 Bro. Oh., 503; 2 Fonb., 212, note; Amb., 20; *Maggs vs. Hodge,*2 Ves., 52; Shelf, on Mortm., 87; Grant, on Corp., 128; Ang. & Ames on Corp., 168; 1 M. & K., 368, note; Hobart, 136 ; *Porter’s*Case, 1 Coke, 22; 4 Kent, 250; 4 Paige, 419; Ang. & Ames on Corp., 138; *Wilbank vs. Martin, 2*Harrington, IS; *Roper vs. Radcliff, 9*Mod., 167; *De Coste vs. Dupass,*Amb., 228 ; *Woodman vs. Woodruff,*Amb., 636 ; 9 Ves., 399 ; Dwar. on Stat., 31 ; 2 Rev. Stat. N. Y., 2; 1 Rev. Stat. N. Y., 720; *Watson vs. Child,*9 Rich. Eq., 129.

*Fair,*for Morrow, cited : *Garret vs. Garret,*2 Strob. Eq., 272; *Roberts vs. Leslie,*9 Rich. Eq., 35; *Jasper vs. Maxwell,*1 Dev. Eq., 357; *Perry vs. Logan,*5 Rich. Eq., 215; *Mathis vs. Griffin,*8 Rich. Eq., 79.

*Noble,*for the executor, cited: *Osborn vs. Black,*Sp. Eq., 435; *Thompson vs. Palmer, 2*Rich. Eq., 36; *Gist vs. Gist, 2*McC. Ch., 474; 2 Story Eq., § 1060; *Crossland vs. Mur-dock, 4*McC., 218; 1 Wms. on Ex’ors, 451; 2 Wms. on Ex’ors, 687; *Drayton vs. Grimke,*Bail. Eq., 392 ; 5 Stat., 15; *Britton vs. Lewis,*8 Rich. Eq., 271; Sug. on Pow., 167, 172.

*Perrin,*for corporations, cited : *Chapman vs. Brown,*3 Bur., 1634; *Gore vs. Langdon, 2*B. & Ad,, 680; 22 Eng. C. L. R., 285 ; *Bodenham vs. Pritchard,*S Eng. C. L. R., 150; *Goodtitle vs. Southern,*1 M. & S., 299 ; An. & A. on Corp., 134; l Kyd on Corp., 104; Bac. Ab. Corp., F, 2; 2 Lord Ray., 1532 ; 1 Sira., 612 ; 2 Kent, 285, n ; *Augusta vs. Earle,*13 Pet., 519 ; 1 Bro. C. C., 497 ; *Dougald vs. Ball, 2*P. W., 320; *Trelawney vs. Booth, 2*Atk., 307; *Craig vs. Leslie,*3 Wheat., 564; *Austis vs. Brown,*6 Paige, 448; *Perry vs. Logan,*5 Rich. Eq., 202 ; *Attorney General vs. Jolly,*1 Rich. Eq., 99; *Gibson vs. McCall,*1 Rich., 174; Shelf, on Mortm., 73; *Gerard vs. Vidal, 2*How., 127; 3 Pet., 99; 7 Serg. & Raw., 320; 2 Kent, 283 ; 1 Watts, 21S; Perd. Dig., 350.

*189*McCrady,*for American Tract *Society:*

*To*purchase lands and hold them for the benefit of themselves and their successors, (I Black. Com., 475, 478,) was incident to every corporation at common law. It is not, therefore, any incapacity in the corporation to take and hold which can prevent the devise, but some disability, created by our own statutes, must be shown. Mortmain Acts did not affect the colonies, 2 Merivale, 143, 160; *Attorney General vs. Stewart.*This disability, it is said, is to be found in the A. A. 1734, entitled an Act for making more effectual and for making valid all former wills in this province, &c., sec. 2d, 3 Stat. at Large, p. 341, 382, in which “bodys politick and corporate are excepted from being devisees.” That is, it is a disability in the devisor-, and not *the*incapacity or disability of the corporations. If the power, liberty, or privilege, to devise lands in this State were derived entirely from the Act of 1734, the exception would certainly make any devise to corporations void. But if this power, liberty, or privilege, need not be derived from them, it need not be subject to the exception. I, therefore, will endeavor to maintain these two propositions:

1. That lands in this province were, long before the passage of the Act of 1734, devisable without .any restraint.

2. That this Act did not curtail or restrict the right of devise before enjoyed by the citizen.

As to the first; that lands were devisable before the Act of 1734. We go back to what must.be considered by us as the fountain head of all property and right of property in our soil, that is, to the charters granted to the lords proprietors, dated respectively 15th March, 1663, and 30th June, 1665. By the fourth clause or section of the first, (l Stat. at Large, pp. 22, 23,) and third of the second, (lb., 31, 33,) the whole territory was granted to the proprietors and their heirs by their king, “to be holden of us, our heirs and successors as of our manor of East Greenwich in Kent, in free and common socage, and not in capite or by knight’s service.” We *190do not positively know how this manor of East Greenwich was held, but as it was in *Kent,*we may fairly presume it was gavelkind. “All the lands in *Kent*are presumed to be in gavelkind, because it is morally impossible now to show to a certainty what lands were disgavelled.” Bac. Abr., *2*vol., tit., Gavelkind, B, marginal note. “The lands in *Kent,*generally, are of the nature of gavelkind, which custom there is like the *common law*elsewhere.” Com. Dig., 4 vol., title, Gavelkind, H.

If this holding intended by the charter was in the nature of gavelkind, then the lauds,in this province were devisable by the grantees, the lords proprietors; for, says Lord Bacon, “all gavelkind land is devisable, for the allodial property doth follow the rules of the civil law, which permits any person to make his will and to dispose of his estate; and this notion the clergy seem to have brought over unto all those allodial possessions, and the custom hath continued ever since.” Bac. Abr., *2*vol., title, Gavelkind, A. "

So Gilbert on Devisees, p. 84: “For the people of Kent, where the custom of gavelkind most prevails, happily secured their land from any innovation of the Conqueror, so that after the conquest, they still continued free, and not subject to the feudal duties, &c.; therefore, that people still continued their old power and custom to dispose of their lands according to the natural notion of property, by *will*or alienation.” And so it was decided in *Launder vs. Brookes,*Cro. Car., 561.

The mere fact that the manor of Greenwich was in Kent, is, therefore, almost conclusive, that the grant enabled the grantees, the lords proprietors, to devise without restriction, aud that they so took and held all the lands of the province. In fact the statute of Frauds, sec. 5, recognizes the power of devise as a *Kentish*custom, and not as gavelkind — ■ “ according to the custom of Kent,” is the language — and thus we have, as it were, a declaration of the meaning of the *191charter, to give the power to devise, by the grantor himself, as well as by his parliament.

But this is put beyond question by the provision of the seventh clause or section of both charters, 1 Stat. pp. 25 and 35, that “ all the subjects and liege people” of the king, transported to the province, should be considered still liege, faithful people, and may inherit or otherwise purchase and receive, take, hold, and buy, and possess any lands, tenements, or hereditaments, within the said places, and them may occupy and enjoy, sell, alien and *bequeath.*Both the proprietors and their grantees then took the lands in this province as lands devisable, and devisable according to ancient, lawful customs of England, before the statutes of 32 and 34 Henry VIII.

In addition to this, we have very conclusive proof that it was so understood by the people of the province themselves, in the remarkable and otherwise unaccountable omission to adopt either of the statutes of Henry VIII, authorizing devises, when in 1712 they adopted so many other statutes, together with the criminal law, and intended to frame their code; and that they had no fear of corporations appears from the fact, that none of the statutes of mortmain were ever made of force.

We are then next to inquire whether this right of devise, coeval with the right of property, was at any time before the Act of 1734, abolished or restricted. .Nothing can be suggested as affording any possible ground for such a supposition, unless, perhaps, the adoption of the common law, or the surrender of the charters by the proprietors; neither, however, could have had such an effect.

1. As to the adoption of the common law. It would be clearly against the intent of the statute, which, it is to be observed, cautiously adopted only such parts of the common law as were not “inconsistent with the particular constitutions, *customs,*and laws of this province.” But even with*192.out this cautious limitation, the Act of 1712 could not, consistently with decisions in England, then not long before made, have been construed to have such an effect.

In the case of *Wiseman vs. Cotton,*decided in 1663, Hardres Rep., 325, see Thos. Raymond, 59, 75 and 76, and also in Bac. Abr., 2d vol., Tit, Gavelkind, B, the question was, whether certain lands in *Kent,*disgavelled by certain Acts of Parliament in Henry VUIth’s time, “ to all intents, constructions and purposes whatsoever; and that they should descend as lands at common law, auy custom to the contrary notwithstanding,” thereby lost their devisability, and it was resolved that notwithstanding the generality of the language, the said lands lost only their partibility, and might still be devised. The case was made expressly to try the question on a wager whether the lands could be devised, was carefully considered, and is also reported in Lev. 79, 1 Sid. 77, 135, and 1 Keble, 288, 372, 492, 505.

The adoption of the common law, then, (if the manor of Greenwich had not been disgavelled in this way prior to the charters,) could only have changed the descent.

Then, as to the surrender of the lords proprietors to King George II. Did that destroy the custom of devise, and deprive our lands of their devisability? We have never seen any copy of the surrenders, but the Act of 2 George II, ch. 34, A. D., 1729, entitled, an Act for establishing an agreement with seven of the lords proprietors of Carolina, for the surrender of their title and interest in that province, to his Majesty, is to be found in 1 Stat., p. 60, in which the agreement is recited and the confirmation enacted. The patents or charters of Charles II are both recited at length as to the grant of the lands as already quoted, and the title a'nd interest of the proprietors thus described was to be surrendered ; but “all such tracts of land, tenements, and heredita-ments as have been at any time before 1 January, 1727, granted or conveyed by, or comprised in any grants, deeds, instruments or conveyances, under the common seal of the *193said lords proprietors, either in England or in the provinces aforesaid,” were expressly excepted, (lb., p. 65,) so that as to lands granted before 1 January, 1727, this surrender had no effect; and if the lands after granted by the king were not devisable, there certainly would have been great confusion, and we should have to look to the dates of the grants to resolve the question. Possibly a vague apprehension of this might have induced the passage of the Act of 1734. But it must be observed that this surrender made to the king was of that estate or title which the proprietors held, that is, as of lands *in Kent,*and such lands would not have lost their qualities by such a surrender. *2*Danv. Abr., 441. If gavel-kind lands are held in socage, and the tenure is after changed into knight’s service, yet the custom is not altered, for that goes with the *land*and not with the tenure. See *Lushington vs. Slandorff,*5 Bos. & Pul., 506, 728. Com. Dig., 4th vol.„ Gavelkind, 533. (A.) So, if it descend to the king, though it be privileged in the hands of the king, the *custom*is not thereby *destroyed.....*So, if the king be seized of lands in natiire of gavelkind, and dies having several sons, the whole descends to the king, his successor, and the younger sons shall have no part, for the custom is *suspended*in the* hands of the king. Upon these authorities we are justified^ in maintaining that although the custom might have been *suspended*while the lands were in the king, it was not destroyed ; and that upon being granted to private individuals, the right of devise went with the land, and that, therefore, that all lands, whether granted by the proprietors or by the king, were devisable previous to the A. A. 1734, and up-to the time of the passage of that Act, and if so, then we: proceed to our second proposition.

2. That the Act of 1734, did not take away this right of the citizen and quality of the land. It is at the worst no more than the statute of 32 Henry VIII, which has the same exception, but it has constantly been held in England, that wherever lands were devisable by custom before the statute *194of Henry, they were not affected by it. Gilbert, in considering what circumstances are necessary to a will, says on devises, p. 83, 84, that lands of gavelkind tenure in Kent, “ are not subject to the circumstances required by that statute (32 Flenry VIII) because they were devisable before.” And in the Butler & Baker’s case, 3 Rep. 35, a, 4, it is said, and as to the case in Dyer, 155, that if lands in London, or lands which were devisable by custom, are held in *capite,*yet the whole may be devised. To that it was answered, that was not by force of the statute, but because the lands were devisable by custom before the statute, and the statute is in the affirmative, and doth not take away any custom. So Lord Coke says again. For an affirmative act doth not take away a custom to devise lands, as it hath often been adjudged. Co. Litt., 115, a.

And this has been allowed even against the mortmain Acts in Loudon. Bac. Abr. (vol. 1, Title, Customs of London. A.) By the custom of London, a freeman or citizen might, even before the statute of wills, devise his lands and tenements, of which he was seized in fee simple, to whom he pleased, and may at this time devise the same in mortmain, notwithstanding the statutes of mortmain, &c. Here we have no mortmain Acts to prevent.

But, whatever might have been the intent or the effect of the Act of 1734, we contend that the Act of 1789 was intended to remove all restrictions from the power of devising except those of form imposed by the statute of frauds, and therein re-enacted. This appears from the fact that nothing is said about the devisees; exceptions are made as to those who may devise, but as to those who may take, the statute is silent, and as there is nothing to restrict the devisor, the only question is as to the capacity of the devisee to take at common law, which capacity we have shewn, corporations have. And this enactment, although affirmative only, being intended to regulate wills, the same *matter*as the Act of 1734, must *195repeal it, as the exception in the Act of 1734 is inconsistent with the unlimited power of devise given in the Act of 1789.

So, if a subsequent Act be contrary to a former, in matter, it shall be a repeal of the former, though the words are affirmative. Com. Dig., 5 vol., foot page 317, Tit., Parliament, R., 9, a.

Every affirmative statute is a repeal, by implication, of a precedent affirmative statute, so far as it is contrary thereto. For, *leges posteriores priores abrogant.*Bac. Abr., 4 vol., Tit., Statute, D., 14.

Then we have the uniform practice ever since the Act of 1789, in favor of this construction, for there is no vestige of a doubt of the power to devise to corporations; or of the ability of corporations to take under a devise, to be found in any of our reports, and such a doubt has been unknown to the bar, as I verily believe, until raised in this case. But, if this be the first time this Act comes to be construed, being a statute in favor of public right, it ought to be construed liberally to carry out its intent, more especially as those feudal rights which were sought to be protected by the restriction upon devise, were never of force in this State.

Thomson, for Morrow, cited: 1 Rop. on Leg., 248, 249, 257, 260, 262, 26S; 2 Rop. on Leg., 1507, 1683; 1 Bro. C. C., 482 ; 1 Jarm. on Wills, 277, n., 698 ; *Sayer vs. Sayer,*2 Vern., 688; 2 Rop. on Leg., 1475, 1476, 1478; *Rawlings vs. Jennings,*13 Ves., 39 ; *Mien vs. Crossland, 2*Rich. Eq., 68.

The opinion of the Court was delivered by

Wardlaw, Ch.

The circumstances under which this opinion is prepared, prevent that full discussion which the importance of the interests and principles involved makes desirable, and enable me to do little more than to announce the judgment of the Court.

We are all agreed that the direction of the will to the executors to sell the whole estate, applies only to the “ General Bull estate,” and that the religious societies have no interest *196beyond this portion. The direction to sell is in the midst of dispositions relating to that special subject, and it is a forced construction to change its collocation with cognate dispositions, and make it applicable to the whole of testator’s estate. It is manifest, from a careful reading of the will, that while the testator intended to dispose of his whole estate, he made very different dispositions as to the two parcels of it: his •estate proper, and the “ General Bull estate.” The former he gives to his wife, and the latter he devotes to charity. That he should make the proceeds of the latter liable to his debts generally, and to a pecuniary legacy to his step-son, is not inconsistent, for he had added to this parcel a very valuable estate. In life, he kept the two parcels distinct and apart, and although we cannot resort to parol evidence, independently of the will, to ascertain the testator’s intention, it is allowable to receive information of his past conduct, and all the circumstances which surrounded him, to point and determine the application of the words used in the will. The intention of the testator must be ascertained, and the construction of his will made, from the terms of the will itself, but we may be aided in fixing the meaning of his terms by his *ususet norma loquendi.*The direction to sell, of course, could not apply to the estate given to his wife, even for life, and could not, therefore, include his whole estate. In relation to his estate proper, the testator, so far from giving his execu- ‘ tors power *to*sell, as to the only portion directed to be sold, prescribes that the sale shall be made by an agent of his wife.

There is no general residuary clause in this will, and if the testator has died intestate as to any subject not appurtenant to the General Bull estate, which is directed to be sold and divided, this subject must proceed to his next of kin. It is true, that the word remainder occurs in the directions to the executors for sale, but it is too obvious to need illustration, that the term applies only to the residue of the General Bull estate not sold for cash.

The next question is, whether the Berry Hill tract is in-*197eluded, as an incident and increment of the General Bull estate, within the power of the executors to sell; and on this point we concur with the Chancellor. In a devise, if there be found two sorts of property, one technically and precisely corresponding to the description of the subject in the devise, and another not so completely answering thereto, the latter will be excluded, although had there been no other property on which the devise could operate, it might be held to comprise the less appropriate subject, 1 Jarm., 720. This is sound doctrine, and for myself I think it was rightly applied in *Oxender & Chichester,*3 Taunt., 147, as I have elsewhere said in *Lawton vs. Hunt,*4 Rich., 247. But under John Bull’s will no subject whatsoever technically and precisely corresponds to the terms of description in the will, nor any which can be brought within its operation, except in a popular and secondary sense. Usually, and not including cases where, by imposing conditions, testators may create instances of election, a testator can dispose only of his own estate, and not of the estate of another, even of a deceased brother, however respected and lamented; but one may designate his plantation by any appellative he chooses, and devise it by that name. If the testator had said, I devise the estate derived by inheritance from my brother, probably the rule cited would have been applicable, but in fact he says, the estate of my brother, I will, &c. He had the right to denominate, and he did denominate his Savannah River property as the General Bull estate, including Berry Hill, which was mainly paid for from the crops of the plantation inherited from his brother, and the proceeds of the sale of some of the negroes belonging to that plantation. It is unnecessary to add more to the circuit decree on this point.

The. next question is, as to the negroes born after the date of his will from the bodies of the females primarily given to his wife. Two sets of *post nati*are involved in this inquiry. As to the descendants of Doll, we concur with the Chancellor, and cannot profitably add to his reasoning. As to the ser*198vants on the Little River farm, I am instructed to deliver the opinion of the Court, (I reserve my own,) approving the conclusion of the Chancellor that the *post nati*do not pass, and in this particular the decree must stand on its own reasons. The distribution of the fund from this source, however, must be different from that provided in the decree, as our conclusion concerning the effect of the power of sale, excludes the religious societies, and leaves the fund as intestate property to the succession of the next of kin.

Another question is, as to the bequest of $5,000 to testator’s step-son. On this point we differ from the Chancellor. The testator, in the first instance, cheerfully gives this sum of money absolutely to the legatee, and then proceeds to express the desire that no person shall be allowed to deprive him of it during his natural life, and that the legatee himself shall not be allowed to squander the minutest portion of the principal, and be only allowed to use the annual interest. An absolute gift can be reduced in effect only by the clearest expression of the donor’s purpose in the context to limit its effect. Here there is no limitation over of the principal fund, and yet there is distinct manifestation of testator’s purpose to dispose of his whole estate. In similar terms the testator expresses his desire to secure the estate given to his wife, so that no person shall be able to deprive her of it during her natural life. In both instances, we understand the testator as attempting to give the property exempt from its necessary incident of liability for debt, which is impracticable. As to his step-son, probably the couusel or advice not to exceed the annual interest in the use of the legacy, was *intended;*but we do not perceive any sufficient indication to restrict his right to use it as he pleases. In general, pecuniary legacies bear interest from a year after testator’s death, and we see nothing as to this legacy to justify departure from the general rule.

As to so much of the appeal as relates to the debt of testator to the estate of David Morrow, we decide nothing, *199*except*that there shall be no presumption from the appeal or otherwise that the matter was decided against the appellant. The Chancellor intended that this matter should be embraced in the inquiries directed to be made by the commissioner, and we think it safer to reserve judgment until, by report and exceptions, the matter may be more distinctly presented for adjudication.

We may next consider the appeal on behalf of the executor, that he, directed by the will to make the sale, and not the commissioner of the Court, as ordered by the decree, should make the sale of Berry Hill. We consider this appeal to be well taken. When the order for sale of the estate was originally granted, John Bull seemed to be intestate as to his whole estate, and this Court having custody of the estate, properly directed the sale to be made by its own officer; and so far as the order has been executed, it must be supported, and if the executor is dissatisfied with his compensation for trouble and management, his remedy is in the Law Court for *extra*compensation under the Act of 1789. But as we understand the facts, Berry Hill is still unsold, and as we have adjudged this tract to be parcel of the General Bull estate, which the executors were corrected by the testator to sell, and as there is no charge of insolvency or misconduct made as to the executor, we adjudge that it is his privilege to make the sale of Berry Hill, and that so much of the decretal order as directs it to be made by the commissioner, be rescinded.

The remaining and most important question in the case is as to the capacity of the testator to give the residue of the proceeds of sale of the General Bull estate, to the religious corporations which are the objects of his donation. The right of these corporations to take personalty is not seriously contested, but it is insisted that, as the statutes of wills, 32 and 34 Henry VIII, and our Act of 1733 or 1734, (it is twice printed, in 3 Stat., and of these successive years, at the pages 341, *382,)*except corporations from the objects of *200the devises of land, it is unlawful to bequeath the proceeds of land to corporations. Minute distinction might be made between exceptions in enabling statutes and positive prohibitions, and between the capacity of a testator to give, and of a legatee to take, but I have not leisure to dwell upon them. It was argued for the corporations, that before the statute of wills, by special custom in Kent, retained from ancient Saxon laws, proprietors of lands held in gavelkind, had the right to devise lands ; and that, as by the charters of King Charles II to the lords proprietors of South Carolina, lands were to be held'of the king as of the manor of East Greenwich, in Kent, all lands in South Carolina.are devisable, independently of the statutes of wills and of the Act of 1733. But we have no proof that this special custom authorized devises tp corporations; and if this were conceded, the surrender of the charters to the king about 1727, brought lands here under the general common law of England; and such persons as claim privilege beyond the common law, must prove their right to be excepted from the operation of the system. Hence arose the necessity of passing the Act of 1733, briefly after the surrender of the charters. Again, it is urged that the Act of 1789, prescribing jthe formalities according to which wills of land may be made, but making no mention of t.he devisees, and, of course, omitting the exception as to corporations, amounts to a repeal of the Act of 1733. But there are no inconsistent provisions in the two Acts, and repeals by implication, are little favored, and affirmative statutes, in relation to the same matter, are properly construed in *pari materia.*We, therefore, assume, that devises of lands to corporations, are inhibited generally, and that particular corporations, claiming right to take lands by devise, must establish their right by their charters, or some other special law proceeding from the legislative authority of this State. But the inhibition, in terms, extends only to devises of lands, and the burden is on the heirs, or next of kin, to demonstrate that a bequest of the proceeds of lands is equivalent to a *201devise of lands specifically. The English statutes of mort-main are not of force in this State, and our only Act which can be denominated a statute of mortmain, is this Act of 1733. So, too, the statute of 37 Eliz., concerning charities, (which was greatly modified by the statute of 9 Geo. II, commonly called the statute of mortmain,) is not of force here.

The whole issue, therefore, hangs on the extent of the exception in the Act of 1733. There are reasons of policy, which might induce the legislature to enact that lands should not be held in the dead clutch of those who owe no allegiance, and where there is no liability to escheat, which are inapplicable to money or other personalty. It is incident to corporations at the common law, to take personalty by bequest, and this power is not totally or generally recalled by any statute, and it may be conceded, for the purposes of this argument, that they cannot take devises of land without license from the crown, in England, or here without grant from the legislature. Equity considers to be done that which should be done, and regarding the substance rather than the form of a will, considers land to be converted into money wherever testator directs the land to be sold, and nothing intervenes to prevent the execution of the direction on principles of equity. A testator has the power to change the nature of his estate as from realty to personalty, so as to preclude all questions between his heirs and personal representatives. 1 Wins., 551, 554. It is quite true, that if the testator direct the conversion for a purpose, which fails in whole, or in part, the heir is entitled to the whole, or residue, as land. *Ackroyd vs. Smithson, North vs. Valle.*And that if the conversion be not actually effected by sale, and be not necessary, the beneficial legatee may t.ake, at his option, the land or the proceeds. But these apparent exceptions in no respect limit or qualify the general doctrine of equitable conversion, where it is directed absolutely, or, as the phrase is, out and out, and the conversion is necessary to fulfil the purposes of the testator. *Craig vs. Leslie,*3 *202Wheat., 563. It is argued that this doctrine of equitable conversion applies only between the objects of gift, and not as to the donor; and thus far I approve and follow the argument, and it is further urged that it has no application to the instrument of gift. If no more be meant by this than that there must be, first, a devise established before a conversion can be effected; this too may be admitted as sound doctrine, and established by this very case in the Court of Errors. The vice in the decision of *Griffin vs. Matthews,*following *Wilkins vs. Taylor,*8 Rich., 291, was, that the Court applied the doctrine of conversion to the frame or structure of the instrument, and seeing that the will directed a sale of land, and distribution of the proceeds, allowed the will to be admitted to probate on proof adequate to a testament, yet insufficient to a devise. Here, however, the will has been admitted to probate as a will, and the only question is as to the effect of a devise directing conversion. It is further urged, that as our Act forbids the direct devise of lands to corporations, it forbids what is the same thing in substance, a bequest of the proceeds of lands; and that we tolerate evasion of the policy of the State by allowing bequests of the proceeds of lands. This view is plausibly supported by the decisions in the English Chancery on the statute of 9 Geo. II, which are collected in a note, 2 Fonb., 210. That statute, in express terms, only inhibited gifts of lands and of charges and incumbrances on them, and of money to be laid out in lands, to religions corporations, but *in Attorney General vs. Lord Weymouth,*Ambl., 20, Lord Ilardwicke determined that a gift of the proceeds of the lands was likewise prohibited on a construction of the enactment in connection with the preamble; and his judgment was followed afterwards in several cases. Unquestionably this construction was attained by considering the spirit and policy of the Act; and one stiff in his notions of construction might well doubt of the propriety of the decision. Yet the terms of that are much more extensive than those in the statutes of wills and our Act; *203and the decisions proceed expressly on the terms of the statute. 14 Ves., 541. A like conclusion has been attained on the large words of the statute 11 and 12 Wm. III, as to gifts to Papists. *Roper vs. Radcliffe,*9 Mod., 167; 10 Mod., 89. So, too, in Delaware, on a statute of 1787, declaring all devises to religious corporations void, a like result was attained. St*ate vs. Wiltbank,*2 Harris, 22. But no case in England on the exception in the statute of wills, nor in New York, where the same exception prevails, nor elsewhere, has been cited to show that the inhibition of a devise of lands also inhibits a bequest of the proceeds. On the contrary, the prohibition of' direct devise of lands has been held not to inhibit the devise of a trust in lands. I regret that I have not time to pursue this investigation further, but Chancellor Jones has fully examined the cases in *McCarter vs. Orphan Asylum,*9 Cowen, 437, and a fair summary of the doctrine may be found in Angell & Ames on Corporations, 137, 150.

It may be granted that the corporations to whom the bequests are made must be competent to take not only by the laws of the States which chartered them, but also by the laws of this State. We have endeavored to show that- there is nothing in our law which hinders them to take bequests as corporations, and on looking at their charters by the foreign States, we find nothing to obstruct this capacity. All of them, in substance, are authorized to purchase, hold and convey estate. It may be that the term purchase, although usually including all modes of acquisition, except by descent, should be interpreted as to direct devises of land in a popular sense, so to embrace only acquisitions of land by payment of the price or value; but this is altogether unimportant where the gift is considered a bequest of personalty.

It is ordered and decreed that the circuit decree be modified according to this opinion, and that in other respects the decree be affirmed and the appeal dismissed.

Donicin, Ch., concurred.

*204Johnston, Ch.,

said: I concur throughout, except as to the right of the executor to sell; as to which, I apprehend that much inconvenience and perplexity will arise in future cases, where the executor is authorized to make partial sales. Sound practice (and this is only a question of practice) requires, that where an estate is to be administered by the Court, the whole fund should be in the hands of its officer.

*Decree modified.*