#### *Christiana Hatcher*v. *Douglas*Robertson, *Executor.*

Columbia,

May, 1850

The testator “willed and bequeathed,” to six persons, (named,) certain slaves, “ to be equally divided between them and their heirs forever,” and three of the said legatees, (the fact being unknown to the testator up tp the period of his death,) had died before the execution of the will. *Held,*that the bequests, to the three deceased legatees, lapsed, and passed to the residuary legatees.

An antenuptial agreement, founded on the consideration of marriage, though resting in parol merely, provided it be clearly and satisfactorily established by proof, will be set up and enforced by the Court.

*Before*Dargan, Ch., *at*Edgefield, *June sittings,*1849.

CIRCUIT DECREE.

Dargan, Ch. — William Robertson’s will is dated the 17th September, 1840. He died soon after its execution ; and Douglas Robertson and James Robertson, nominated as executors therein, duly qualified, and took upon themselves the burthen of its execution. By the sixth clause of his will, the testator provides as follows: *“*In compliance with a promise made to my late wife, I will and bequeath unto Chris-tiana Hatcher, Josey Parker,. Benjamin Parker, William Parker, Hezekiah Barns and Frances Barns, now the wife of one Tally, the following negroes, to wit, old Andrew, Mary, Harriet, Chester, Jesse, Ch'arlsey, John, Quincy, Jim, Phil, George, Peggy, young Mary, and Oden, to be equally divided between them, and their heirs forever.”

The eighth clause of the will is as follows: “ I give and bequeath my Cedar Creek tract of land, with a field of twenty *180¿eres of land, bought by me of M. Mims, to the persons named in the sixth clause of my will, to be equally divided between them, and their heirs forever.”

Cheves Eq. 21, 8 Strob. Eq. 24.

In tiie tenth clause, after directing the negroes to be sold at private saie, wit’h the privilege of selecting their masters, at an appiaised valuation, the testator directs that “in the said appraisement and sale herein directed, my executors are required to keep distinct the negroes mentioned in the sixth, clause from the negroes mentioned in the seventh of this will, and account with the respective legatees mentioned in those clauses for the sale of the negroes therein mentioned.”

The executors caused the negroes to be appraised and sold according to the provisions of the will; and have paid over to the complainant the one-sixth part of the proceeds of the sale of those negroes enumerated and disposed of in the sixth clause of the will. At the time of the death of Elizabeth Robertson, the wife of the testator, all the persons named in that clause, as legatees, were alive; but, after the de.ith of Elizabeth Robertson, and before the execution of William Robertson’s will, three of the said legatees had died, namely, Josey Parker, without issue, and Benjamin Parker and William Parker,each leaving children now surviving. And it is a conceded fact, and it is charged in the bill, that William Robertson, at the execution of the will, was ignorant that three of the persons named as legatees, in the sixth clause, were then dead. And it would further appear that he was not informed of the death of his said legatees io the day of his own death. James Robertson, one of the executors, has recently departed this life, and the administration of the estate under the will has survived to the defendant.

The complainant admits that sh'e has been paid by the executors one-sixth of the proceeds of the sales of the negroes described in the sixth clause; but she contends that, by the death of Josey, Benjamin and William Parker, in the life-time of the testator, and before the execution of his will, she is entitled, not to one-sixth only, but to the one-third of the proceeds of the sales of those negroes, on the ground that the bequests to the three deceased legatees did not lapse and pass to the residuary legatees, hut that the same vested in the living legatees, under that clause, by the right of survi-vorship.

If the legacy given to the six persons named in the sixth clause had created a joint-tenancy, and Josey, Benjamin and William Parker had died after the execution of the will, and in the lifetime of the testator, a case would have been presented precisely similar to that of *Herbcmont*v. *Thomas,*the decision of which has been approved in *Wall*v. *Deas.*But, between those cases and this, there is no parallel, for, in this case, the sixth clause of the will creates a tenancy in *181common,,and not a joint tenancy. And I cannot perceive upon what possible ground the right of survivorship can be, said to exist. And, again, if the words of the clause were such as would have created a joint tenancy, the legatees, whose interest is alleged to have passed over by viitue of *jus accrescendi*to the survivor, being dead at the time of the execution of the will, there was nothing upon which this doctrine could operate. The deceased legatees never had even an inc.hoate right, under the will, which could, by any possibility, become the subject of *thejus accrescendi.*

It cannot, however, be doubted but that the legatees who took under the sixth and eighth clauses, took as tenants in common. There was a sufficient designation of their several interests, or shares, in the property bequeathed, to constitute them such. If a legacy to a tenant in common would lapse where the legatee died before the testator, and alter the execution of his will, it seems clear that the same result would happen where the intended recipient of the testators bounty was actually dead at the execution of the will: it might, perhaps, more properly be called an inellectual than a lapsed legacy. There were no such persons in existence at the date of the will, and nothing passed, or could pass, to them, or be transmitted through them. And it seems to be a necessary consequence, that the subject matter of such a legacy would become either intestate property, or would fall under the residuary clause of the will.

It was urged in the argument that the legacy in the sixth clause, and the devise in the eighth, were given to a class, and that, in such a case, there could not be a lapse, and the survivors, or those who could bring themselves under the description, at the death of the testator, would be entitled to take. The principle contended for is undeniably true, but the application is unfounded the gift *here*is not to a class, but to persons'individually, and by name. It was also contended, that there will be no lap.:e where the testator did not intend it, and provided a substitute. This legal proposition is perfectly correct; but it must not only appear that the testator *did*intend that the legacy should not lapse, but it must appear equally clear that he has provided a substitute to take in the event of the failure of the primary object of his beni-ficence. In this case, however, I appeal in vain to the terms of the will for any such indication of intention on the part of the testator. The words ‘-to them and their heirs forever," occurring after the words “equally to be divided between them," are not substitutional, but are simply words of limitation, indicating the quantity of the estate intended to be created. For though, in regard to personalty, words of limitation are entirely unnecessary, and have ever been so regarded, to carry the absolute interest, this circumstance *alone**182has been considered altogether insufficient to denote an inten-tjori) on q1Q part 0f the testator, to make the executor or 'administrator independent and substitutional legatees; and, where the devisee or legatee is dead at the execution of the will, the words' of limitation are equally inoperative to let in the representatives of the deceased person. The same reason, anc^ the same remarks, apply,in all their force, to a case where the words of limitation are to them and their heirs forever.

Maybank v. Brooks, 1 Bro 1 C. C. 81.

There was another question made in the pleadings and the evidence, and insisted on in the argument. It was contended that there was a parol ante-nuptial marriage contract between William Robertson and his wife, Elizabeth, wherein it was stipulated that the property of each of them should be enjoyed by them in common, as husband and wife, during their joint lives; and, upon the death of either, the survivor should have and enjoy the whole during life ; and, in the event that Elizabeth Robertson, the wife, died first, then, after the termination of the husband’s life estate in the property, which she brought him upon their marriage, it was to be disposed of as follows: a negro boy, John, to Benedict Barns; a girl, Judy, to Susan Barns; and the residue of her estate and property was to be given to six legatees, by name, to wit, to the complainant, who was her sister, her three brothers, Josey, William and Benjamin Parker, and two relatives of her former husband, Hezekiah Barns and Frances Barns. This is the substance of the parol marriage contract, alleged and set forth in the bill.

In support of this allegation, and by way of proof, the complainant relies on the recital in the sixth clause of the will, wherein the testator declares the inducement which moved him in bestowing the legacy; she also adduced and relied on two letters addressed by the testator to Josey Parker, one of the deceased persons designated in that clause as a legatee. I should not hesitate to set up and enforce an ante-nuptial agreement, founded on the consideration of marriage, though resting in parol merely, provided it was clearly and satisfactorily established by the proof. I should experience no difficulty, either in the way of principle or authority, in setting up and enforcing such a marriage contract, not only against the husband, his heirs at law, devisees, legatees, distributees, or any other person claiming from or through him by voluntary conveyance, but even against a purchaser for valuable consideration, provided he had notice of the wife’s equity: and this equity would be enforced, not only in favor of the wife herself, while living, but of those who, by the terms of the stipulation, were to succeed her in the enjoyment of the estate.

The complainant, however, has not made out any such case for relief; the recital in the sixth clause is in these *183words: *“*In compliance with a promise made to my late wife, I will and bequeath,” &c. There is no ment here of any legal or equitable obligation. It is evident that the testator, in the probity of a virtuous heart, and his affectionate remembrance of his deceased wife, was disposed,, honestly and religiously, to fulfil a promise made to her in her life; but, whether the promise was made before and in consideration of marriage, or after the solemnization of the nuptials, and therefore without consideration, and void, does not appear from any internal evidence afforded by the will.

When I turn to the two letters of the testator, which have been adduced in evidence, I see nothing in them sufficient to sustain the complainant’s claim, or to justify the-conclusions which she adduces from them. • But from- the tenor of those letters. I am rather led to the opposite conclusion, namely, that the mutual promises which are spoken of as having been made between the testator and his wife, were post nuptial, and therefore voluntary and void. By the first letter, dated 20th February, 1831, the testator seems to have labored under an erroneous impression in regard to his rights in his wife’s property, and to have supposed that he on her death had no interest in it whatever. He believed, that on her decease it passed by law immediately to her brothers and sisters, independently of any contract on the subject between her and himself; under this impression, he asks them to let it remain with him during his life, and as an inducement for them to consent to this desired arrangement, he states what had occurred between himself and his wife, in regard to the property, and her wishes in regard to its disposition. He proceeds to say, that she desired him to have it during his life, and after his death that it should go to her own relations, the persons to whom he was making the appeal for the fulfilment of her wishes. He also says, that “ when we first married I made my will. I gave her the whole of my estate, real and personal, if she was the longest liver, during her natural life. She likewise gave me the whole of her estate, real and personal, if I was the longest liver, (by what form is not stated) and after my death, for her estate to be divided as follows : one negro boy named John, to be given to Benedict Barns, a nephew of her first husband, also a negro girl named Judy, to Susan Barns, a niece of. her former husband. They are fatherless and motherless orphans ; the balance of her estate be divided into six parts, that is to say four parts to her sister and three brothers, and the two other parts to her former husband’s relations. But her will and. desire is not good in law, according to the laws of our State,” &c. It will be at once perceived, that there is not the slightest admission or intimation .that there was any contract or understanding between them, antecedent to the marriage. From the last sentence of the *184passage quoted, it is manifest that the testator did not suppose that there was any subsisting legal or equitable obligation arising from any contiact between himself and his wife, that was binding upon him or her heirs, except in conscience. And he proceeds to address an appeal to her 'relations (his correspondent being one of them) to carry out and fulfil the understanding, which he supposed to be inoperative and void in law. This letter proves no ante-nuptial agreement. The terms of the second letter leads to the same conclusion, and perhaps fails “short of the mark" in a more eminent degree. Before this letter (dated the 8th of June, 1831) was written, the testator had discovered that his impression in relation to the claims of his wife’s relations upon her property, was erroneous. He informs Mr. Josey Parker (his brother-in-law) that he had been advised that his marital rights had attached, and that it was “ in his power, and that it would be lawful for him to dispose of her estate as he saw proper.” But notwithstanding his perfect legal title to the property, he informs Mr. Josey Parker of his disposition and intention to dispose of the property according to the mutual agreement between himself and his wife. He then reiterates the terms of the agreement between them, by which, if he survived her, he was to dispose of her property after his death. These declarations do not indicate the existence of any binding ante-nuptial agreement. But there is a remarkable passage which fixes the date of the agreement; he says that “on her death bed she desired for Benedict Barns to have a negro boy named John, and his sister, Susan Barns, to have a certain negro girl named Judy, and the balance of her estate to be equally divided into six parts, that is to say, Christiana Hatcher,” &c., “as the law gives her estate to me," he proceeds to say “I have made my will and willed her estate as she desired me thus referring to her wishes as expressed on her death bed, as a guide by which he was governed in the disposition of the estate which he had acquired by her.

I cannot, therefore, sustain this as a valid agreement, and if 1 could, I do not perceive that it would confer much benefit on the complainant. If the agreement were valid and to be enforced, and if it created a joint tenancy, the jas *accrescendi*would not exist; whereas, in the case supposed, the estate vested in the life of the deceased joint tenant. Our Act of 1791 abolish.es the right of survivorship, where any person shall be seized or possessed at the time of his death, of any estate in joint tenancy, and makes such estate distributable, as estates in common. But the terms of the agreement, according to the letters, created, not a joint tenancy, but a tenancy in common. The balance of her estate was to be equally divided into six parts, of which each of the persons named was to have one. And Benjamin and William Par*185ker having both died, leaving children, the complainant could have no interest in their shares which would pass to their respective legal representatives, for the benefit of theirown lineal descendants. Josey Parker having died without issue, the complainant would be entitled to only one-third, and it would be necessary that her claim to that much should be asserted by an administrator, which has not been done. It would also be necessary that there should be administration granted on the estates of Benjamin and William Parker, and their administrators and children should be made parties to the bill, so that in the view of the case presented by the complainant, I should be under the necessity of dismissing the bill for the want of the proper parties.

In my view, the only possible aspect of the case in which the complainant’s bill could be sustained, is, that under the will of the testator, and not under the marriage contract of himself and wife, the complainant and her brothers took, or would have taken, an estate in joint tenancy, the deceased brothers, to whose shares she sets up a claim by survivorship, being alive at the execution of the will, and dead at the death of the testator. There has been a most signal failure in all the conditions upon which she would be entitled to recover.

There has been no question made in the pleadings in regard to the land which was the subject of devise in the eighth clause.

The complainant having already received all which she is entitled to receive under the will of William Robertson, it is ordered and decreed that her bill be dismissed.

The complainant appealed, and moved the Court of Appeals to reverse the decree, on the following grounds:

1st. Because the legatees under the sixth clause, who were alive and competent to take at the date of the will, took all the property in that clause mentioned ; and being associated with the names of others, not then *in esse,*did not alter the case, inasmuch as aliquot portions of the property were not bequeathed to the legatees severally, but the whole was given to them collectively.

2d. That the direction in the latter part of the said sixth clause, that the property “ be equally divided between them and their heirs forever,” did not, nor was intended to have the effect to increase or diminish the share of a legatee; inasmuch as an equal division among those who could take, and also an absolute estate in the legacies taken, would have been the legal effect of the bequest, if those words had been altogether omitted.

3d. Because, by the tenth clause of the will, the executors were directed to keep separate the proceeds of the property mentioned in the sixth and seventh clauses sew ’’ally, and to *186account with the respective legatees in those clauses mentioned. From which it was inferred and submitted by the complainant, that the legatees under the seventh clause (being also the residuary legatees) could not take the shares of the legatees who were dead at the date of the will.

4th. Because the will and the letters of testator furnished sufficient evidence of a contract between him and his wife to authorize the Court to decree a specific performance in such manner as to prevent any portion of the property mentioned in said sixth clause from passing to his relations.

5th. Because it was manifest, from the whole will, that it was not the intention of the testator that the legatees named in the seventh clause, should take any portion of the property bequeathed by the sixth clause of his *will;*and, if they do receive it as residuary legatees, it will be in opposition to a clearly and strongly expressed intention to the contrary.

*Bauskett,*for the motion.

Griffin, contra.

*Per Curiam.*

We concur in the Chancellor’s decree; and it is ordered, that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin and Dargan, CC.

*Decree affirmed.*