#### *William Hull et al. v. Ann Hull et al.*

Columbia,

May, 1848.

A father of legitimate children, after having been legally divorced from their mother under the laws of another State, may give to a *single woman*with whom he lives in illicit intercouse in South Carolina, more than one fourth of the clear value of his estate, without coming within the inhibition of the Act of 1795.

Adultery is familiarly known in law, as the illicit intercourse of two persons, one of whom, at least, is married.

Where the words of a Statute, in their primary meaning, do not expressly embrace the case before the Court, and there is nothing in the context to attach a different meaning to them, capable of expressly embracing it; the Court cannot extend the Statute, by construction, to that case, unless it falls so clearly within the reasons of the enactment as to warrant the assumption that it was not specifically enumerated among those described by the Legislature, only because it may have been deemed unnecessary to do so.

Where the general intention of the Statute, embraces the specific case, though it be not enumerated, the Statute may, nevertheless, be applied to it by an equitable construction, in promotion of the evident design of the Legislature. But when this is done, it is always presupposed that *such a, case*was within their general contemplation, or perview, when the Statute was enacted by them; for if the case be omitted in the Statute, because not foreseen or contemplated, it is a *casus omissus,*and the Court cannot supply the defects of the enactment.

*175Testator, by will, gave both real and personal property to one, in trust for his married daughter for life, then to the heirs of her body, but should she leave no issue, then to her husband, &c., if neither husband nor issue, then to the erection of a public school; *held,*that the daughter took a fee conditional in the real estate, and a life estate in the personalty.

The interests of the children of a bastard daughter, who taire as purchasers, (under the will of their grandfather,) distinctly from their mother, and not through her, or in connexion with her, shall not be regarded as a gift to her, within the inhibition of the Act of 1795.

When the will of a testator is in favor of his mistress and bastard children, the estate is to be administered under the will in the usual manner. The rule for the payment of debts ( *Worley*v. *Warley,*Bail. Eq. 397,) is to govern until the clear value of the legacies and devises is established; and then the Act of 1795 is to be applied, at the instance, and for the benefit, of the lawful wife and children, for the vacation of so much as has resulted in legacies to the mistress or bastards, beyond one fourth of the clear value of the whole estate.

*Before*Dunkin, Ch. *at Edgefield, September Sittings,*1846.

The appeal in this case is from both the decree of his Hon- or Chancellor Dunkin, who first heard the case and made an order of reference to the Commissioner, and from that of his Honor Chancellor Johnston, upon the exceptions taken to the report made under this order. The first decree very fully sets forth the facts of the case, and is as follows. -

Dunkin, Ch. Gideon H. Hull died at Hamburg in October, 1840. By his will, dated 30th August previous, he devised and bequeathed his estate, as therein specified, to the defendant Ann Hull, and her daughter Zulina, in the proportions and subject to the restrictions and limitations therein set forth. Charles Lamar was appointed Executor, but he declining to qualify, administration, with the will annexed, was, on the 24th April, 1841, committed to the defendant, Ann Hull. This Bill was filed on the 17th April, 1845. The complainants allege that they are the lawful children of the said Gideon H. Hull, dec’d — that he lived in adultery with the defendant, and that her daughter .Zulina is the fruit of their illicit intercourse. The prayer of the bill is that the will may be declared null and void, to the extent and in pursuance of the provisions of the Act of Assembly of 19 December, 1795, in such case made and ordained.

The material facts are very satisfactorily established by the testimony. Hull was a native of Toland, in Massachusetts. In the Spring of 1809 he was married to Currency Osborne, in Colbrook, County of Litchfield and State of Connecticut. After the marriage they resided chiefly in the toivn of Col-brook, until the month of August, 1820. The complainants, William, Hiram and Charles Hull, and Zulina Langdon, are children of the marriage, and were born prior to the period last mentioned. Hull left Connecticut in August 1820, went *176first to Baltimore, afterwards to Charleston, and ultimately settled in Hamburg, where he resided until his death. He never returned to his family, or to New England, and no intercourse or communication appears to have existed between his family and himself after 1821. The testimony was equally clear that, for several years prior to his death, Hull had lived with the defendant. — Their child iSulina, now Mrs. Bryan, was probably born in 1828 or 1829. It is suggested in the answer that Hull and the defendant were married, but no date is mentioned when the event took place, nor was any evidence offered on the subject. The Act of 1795 declares void any gift or provision, beyond one fourth of a man’s estate, in lavor of a woman with whom he lives in adultery, or of his illegitimate child or children, he having a wife, or lawful children, of his own, living. The gift is rendered void by the Act to the extent of the excess.

3 Griff. L. R. 80. 1 Day, 111.

In order to determine the application of the Act it now becomes necessary to advert to other facts in the case equally well established by the proof.

According to the Statute Law of Connecticut the Superior Court of that State is authorized to grant divorces *a vinculo matrimonii*for the following causes, viz : — Adultery, fraudulent contract, wilful desertion with total neglect of duty for three years, or for an absence of seven years by one party not heard of. Such has been the law of that State for more than half a century, as may be seen by the report of the case of *Benton*v. *Benton.*At the Session of the Superior Court for Litchfield County, in August, 1829, Currency Hull filed her petition setting forth the wilful desertion by her husband since the 3Uth August, 1820, his absence in paits unknown, with total neglect of duty since that time, and praying that “the petitioner might be discharged from all duties to said Gideon in consequence of said marriage conti act and be divorced and free from all obligations thereby.” Thereupon the Sheriff was directed to summon the defendant Gideon Hull, if within his precinct, to appear at the Court on the 3d. Tuesday of August, 1829 — and at that term, an order was passed, that notice of the pendency of the petition should be given by publishing the order in the Litchfield Inquirer and Hartford Times, six weeks successively, immediately after the rising of the Court. At February Term, 1830, a decree was pronounced, reciting that proof had been made to the Court of legal notice to the respondent, who had made default, and that the allegations of the petition had been fully substantiated by proof, whereupon the Court adjudged that the said Currency Hull be divorced from the said Gideon, and freed, and discharged from all the duties and obligations she was under to him by virtue of the marriage contract or covenant.

.Some ten years after this sentence of divorce, to wit, in *1771840, Currency Hull became the wife of Samuel Sawyer, wbh whom she now resides in Connecticut.

g^s'c*e¿|‘ Rugg’ ¿ M< (314.

g & Mylne, 614. now ’p. G 117-

4 Wheat. 518.

a Kent Com 90 °m'

It has been already remarked that there was no evidence whatever of any marriage between Hull and the defendant Ann Hull, either before or subsequent to this judgment of February, 1830. The character of their connexion seems never to have been changed.

The effect of this sentence of divorce, it becomes important to consider. Few subjects are more difficult — few questions more perplexing, than the effect of a foreign divorce. In reference to a South Carolina marriage it has been often repeated, although never formally decided, that the doctrine in *Lolley’s*case is the law of this Court. It was, in that case, ruled by the unanimous^pinion of the twelve Judges, that no divorce, or proceeding in the nature of divorce, in any foreign country, Scotland included, could dissolve a marriage contracted in England. That was a case of felony. The defendant, in the confident belief, founded on the authority of the Scotch lawyers, that the Scotch divorce had effectually dissolved the English marriage, intermarried in England.— He was eonvicted of bigamy, and sentenced to seven years transportation. See the commentaries of Lord Chancellor Brougham in *McCarthy*v. *Desaix.*In *Tovey*v. Lindsy, Lord Eldon and Lord Redesdale both expressed their opinion that no English marriage could be dissolved by any other authority than an Act of Parliament. But this marriage was not solemnized in South Carolina, nor between citizens of this State. Mr. Justice Story, in his conflict of laws, has re-maiked that marriage is treated by all civilized nations as a peculiar and favored contract The common law of England, and the like law existing in America, consider marriage in no other light than a civil contract — yet, unlike other contracts, it cannot, in general, among civilized nations, be dissolved by mutual consent It is a part of the civil institutions of a country, and is or may be prescribed and regulated by law. The general right, even of the legislative power, to authorize directly or indirectly the dissolution of the matrimonial contract, and to release the parties from all future obligations, has been much discussed. Any such proceeding has been sometimes impugned as falling within the inhibition of that provision of the Constitution of the United States against the enactment of laws violating the obligation of contracts. In *Dartmouth Colleger. Woodward,*the Chief Justice affirms the general right of the States to legislate on the subject divorce. Both Chancellor Kent and Mr. Justice Story adopt the conclusion that the Legislature of each State may so far interfere with the marriage contract as to allow of divorces between its own citizens and within its own jurisdiction.— Chancellor Kent uses this language: “ there can be no doubt *178that a divorce of the parties who were married and regularly domiciled at the time iu the State whose Courts pronounced the divorce, would be valid everywhereand to the same effect is the opinion of Judge Story, sec. 201: “there is no doubt that a divorce regularly obtained according to the jurisprudence of the country where the marriage was celebra-an(j wtjere the parties are domiciled, will be held a complete dissolution of the matrimonial contract, in every other country.” The validity of such laws is also vindicated hy the judgment of the Supreme Court in *Ogden*v. *Saunders,*and the argument seems irresistible that in such cases the *lex loci contractus,*the law of the place where the marriage is celebrated, furnishes a just rule for the interpretation of its obligations and rights, as it does in the case of other contracts. It'can only be dissolved by the law under which it was formed, and by which both parties understood it to be governed.

Con .of Laws.

13^eat-

The Legislature of South Carolina has never exercised the power of granting a divorce, nor has it vested such authority in any of the Judicial tribunals of the State. But according to the principles which seem to be well established, if Hull and. his wife were domiciled in Connecticut in August, 1829, and a sentence of divorce had been pronounced for adultery on his part, or any other cause, that sentence “ would be held a complete dissolution of the marriage contract iu every other country.” Although the fault had been entirely on his part he would be thenceforth at liberty to contract a new matrimonial engagement in Connecticut, in South Carolina or in any other community. Currency Hull was no longer his wife, nor he her husband. As such they were to each other dead in law. But when the proceedings were instituted, and when the sentence was pronounced, Hull was in South Carolina. After having committed an act of adul-. tery in Connecticut, could he prevent the divorce by crossing the line of the State into Toland, Massachusetts, or by abandoning his family and removing to South Carolina ?

Mr. Justice Story states that “ the place where a married man’s family resides is generally to be deemed his domicil. But it may be controlled by circumstances.” In 1829, Hull had been eight years absent from his family, and in South Carolina. For many purposes he would be regarded as domiciled in this State. But his family, his wife and children, continued to reside, as they had always done, in Colbrook, Connecticut. By his marriage vow, and by the law of the land, he was bound, to support and cherish, and not to abandon them." By the same laws, which must be regarded as part of his marriage contract, it was declared that on wilful desertion with total neglect of his duty for three years, a dissolution of the marriage contract might be declaied by the Judicial tribunals of the country, after adopting certain pre*179scribed forms of notice. It was then part of the law of his contract) to submit to a judgment thus rendered. The Supe-fior Court of Connecticut is a Court of general jurisdiction. Although beyond the limits of the State, Hull might have appeared to the process, might have pleaded, or might have confessed judgment, and it would be no impeachment of its validity that he resided beyond the jurisdiction of the Court. It was part of the law of his contract that it might be dissolved by wilful desertion of three years, or by seven years absence without being heard of. This necessarily implies that judgment may be pronounced on these facts in his absence. But if it were necessary, the Court is prepared to hold that Hull’s family having been always permanently resident in Connecticut, that must be regarded as his domicil for all the purposes of maintaining the jurisdiction of the Court and the validity of the sentence.

1 Jac. L. D. 50.

The conclusion is that, by the sentence of divorce pronounced in Feb. 1830, the marriage between Hull and his wife was effectually dissolved. Having then no wife, but having lawful children of his own living, Hull, in August, 1840, devised and bequeathed a portion of his estate to his paramour, and to an illegitimate child. It seems to the Court entirely free from doubt that the bounty to the illegitimate child, so far as it exceeds one fourth of his estate, is null and void, by the express terms of the Act. The bequest to the mother presents a question of more difficulty. The language of the Act is as follows: “ If any person who is an inhabitant of this State, or who hath any estate therein, shall have already begotten, or shall hereafter beget any bastard child, or shall live in adultery with a woman, the said person having. a wife or lawful children of his own living, and shall give or settle or convey, either in trust or by direct conveyance, by deed of gift, legacy, devise, or by any other ways or means, whatsoever, for the use and benefit of the said woman with whom he lives in adultery, or of his bastard child or children, any larger or greater proportion,” &c.

The Act does not purport to impose any penalty on the of-fence, but invalidates the gift. At the date- of Hull’s will, and at the period of his death, he had no wife of his own living. He was not living in adultery. However offensive his mode of life may have been to morals or decency, the marriage bed was not violated. Can a widower, having children, make provision for his mistress to the extent of more than one fourth of his estate? It may have been the object of the Act to place such person on the same footing with an adulterer whose lawful wife is still living. But the Act has not said so. Adultery is defined to be *“*the sin of inconti nence between two married persons. So’, if but one of the persons be married, it is nevertheless adultery.” I cannot *180venture to apply this term to the character of the intercourse (between Hull and the defendant in 1840, for the purpose of rendering the bequest to her obnoxious to the provisions of the Act of 1795. In determining on the validity of the gift, the inquiry must necessarily be confined to the condition of the parties at the time the gift was made. It is this which gives character to the gift, and it can neither be prejudiced nor improved by their condition at any other time.

So far as it is sought to impeach the devise and bequest to the defendant, Ann Hull, the bill must, in the judgment of the Court, be dismissed. An inquiry must be made as to the value of the estate of the testator, and the proportionate value of the bounty to the defendant, Mrs. Bryan. So far as the same exceeds one fourth of the value of the said estate, the same is hereby declared null and void, and the complainants are exclusively entitled to the said excess, as well as to the whole residue of the estate, if any, of which their father may have died intestate, according to the first and eighth canons of the Statute of Distributions of this State.

It is ordered and decreed that the Commissioner take an account of the estate of the testator and of the value thereof in 1840, as also of the transactions of the defendant, Ann Hull, in the management of the same; that he also take an account--of-the" value at that date of the devise and bequest in/trústfoníthe.fdefdndant, Mrs. Bryan, called in the will “my daughter Zulina,”&nd that the Commissioner have leave to report any.ppeaiaDihatter. Each party to pay their own costs tip'to'tMs'-Stagb-m' the proceedings.

The Commissioner reported in conformity with this order, and upon hearing'the report and exceptions, in June, 1847, his Honor Chancéllor Johnston delivered the following decree:

Johnston, Ce. This case is fully stated in the decree of Chancellor Dunk in, who, after deciding some general principles, referred the accounts to the Commissioner with special directions. The Commissioner’s report comes before me with exceptions taken to it by the several parties.

The bill is brought by the legitimate children of Gideon H. Hull, to avoid certain devises and bequests made by him, (and which took effect upon his death, the 11th of November, 1840,) to his natural daughter and her mother, so far as the same exceeded the fourth part of his estate.

My brother Dunkin decided that the devises and bequests to the natural daughter were void, so far as they exceeded the 4th of this estate, to be valued at his death, but that those to the mother were not vitiated by the Act of 1795, inasmuch as he had been divorced from his lawful wife in 1830, and therefore his testamentary gifts to this person were not made to *“*a woman with whom he lived in adultery.”

*181The order of reference was “ that the Commissioner take an account of the estate of the testator, and of the value thereof in 1840, as also of the tiansactions of the defendant, Ann Hull, (the administratrix of the will and mother of the natural child) in the management of the same. That he also take an account of the value at that date of the devise and bequest in trust for the defendant, Mrs. Bryan, called in the will ‘ my daughter Zulina and that the Commissioner have leave to report any special matter.”

The Commissioner reports that the value of the testator’s estate at his death, in 1840, was $8,230 27

Comprising

That given to the mother, $1,541 36

“ “ to the daughter, 4,537 50

Intestate, 2,151 41

$8,230 27

That the debts paid, and to be paid, amounted to 5,280 29 To which was to be applied the intestate property, 2,151 41

Leaving a balance of debts, 3,128 80

To be paid out of the motherland daughter’s legacies, in the following proportions:

Out of the mother’s, *“ “*the daughter’s,

The value of the daughter’s share bein And her proportionate share of debts,

The Commissioner sets down the nett value devises and bequests, at

Which the Commissioner, considering it as a life estate of 7 years, sets down at 1,079 00

And deducts from it ¿th of the whole estate, after deducting debts, say $8,230 27, less $>5,280 29, leaves $2,949 98, one fourth of which is 737 49

And makes her excess over Jth, 341 51

The Commissioner charges the mother for rent received by her, $2,546 85

And Bryan, the daughter’s husband, 2,130 50

$4,677 35

Credited by repairs and improvements, 1,374 00

Balance of rents, $3,303 35

And he charges the mother, as administratrix with the will annexed, with this balance, $944 54, with interest on $927 29, from Jan. 1, 1847.

*182But he has omitted to report the sum to which the plaintiffs, respectively, are entitléd as the result of this account.

The different exceptions are now to be considered.

The plaintiff’s first exception is “that the defendant, Zu-lina Bryan, (the natural daughter,) took an estate in fee, in the property given her by the will of Gideon H. Hull, and the Commissioner, therefore, erred in valuing her interest therein as an estate only for the term of her natural life.”

The 3d clause of the will is as follows: “I give and bequeath to my friend, Charles Lamar, in trust and for the benefit, use and behoof of my daughter, Zulina, the following property, to wit: 3 houses and lots, situate, (fee., in the town of Hamburg, and known in the plan of said town, (fee. Also 3 negroes, yiz: Toney, Charles and Mary. Also one tract of land, containing 20 acres, adjoining, (fee. It is understood, however, (and I hereby declare it is my will) that the said Charles Lamar hold the aforesaid property in trust, for the said Zulina during her natural life, and, upon her death, then the said property is to go to the heirs of her body, if any, or should she die without issue, but having a husband, then one-half of the said property to go to such husband, and the other half to be appropriated, by my executor, to the erection of a public school in the town of Hamburg. But should my said daughter, Zulina, die without leaving issue or husband, then the rents and profits, arising from said property, to be appropriated towards the erection and promotion of a public school in the town of Hamburg, as aforesaid.” The interest conferred upon the daughter, by the will, is, in express terms, limited to her natural life. Then upon her demise, the property is given over to the heirs of her body, or issue, if any. If no issue (at her demise) it is to go by way of alternative disposition to her husband and to the erection of a school, a moiety to each. But if neither *issue*nor husband at her demise, the whole is to go to the school. I cannot doubt that the whole of these ulterior dispositions are, as alternatives, limited to take effect at the death of the daughter, and are good limitations, and that the heirs of the body take as purchasers. This exceptions is overruled.

The plaintiff’s second exception is, “ That if it be intended by the report, to limit the recovery of the plaintiffs to the sum of $341 51, then it is respectfully submitted that the same is erroneous, because the plaintiffs are entitled to have a partition made between them and the defendant, Zulina, of the specific property given to her by the will of Gideon H. Hull, as also to be reimbursed the excess paid by the income and profit of the said property, over and above the just proportion of the debts of the estate, chargeable upon the same. And, in any event, are entitled to interest on the said sum of $341.51, from the 1st of Jan. 1841.

*183This exception appears to have been hurriedly put in. It is only upon the contingency that the Commissioner intends, by his report, to limit the recovery of the plaintiffs to the sum of $341 51, that actual partition is insisted on. But I am of opinion that the right of actual partition is doubtful under the Statute in virtue of which this bill is filed, and at all events, is excluded by the decree, and cannot be insisted on without reversing that decree.

The Statute of 1795 enacts “ That if any person who is an inhabitant of this State, or who hath an estate therein, shall have already begotten, or shall hereafter beget, any bastard child, or shall live in adultery with a woman, the said person having a wife or lawful children of his own, living, and shall give, or settle, or convey, either in trust, or by direct conveyance, by deed of gift, legacy, devise, or by any other way or means whatever, for the use and benefit of the said woman with whom he lives in adultery, or of his bastard child or children, any larger or greater proportion of the real clear value of his estate, real or personal, after payment of his debts, than one fourth part thereof, such deed of gift, conveyance, legacy or devise, made or hereafter to be made, shall be, and is hereby declared to be, null and void, for so much of the amount or value thereof as shall or may exceed such fourth part of his real and personal estate.”

The wrong done to the lawful wife and children consists in taking property from them aud bestowing it upon the illegitimate family, and the measure of the wrong is the amount and value of the property thus given away. The law does not compel the husband and father to give his property to his lawful family. It does not take from him his right of free alienation, arising from the very fact of his ownership of the property. It is only when he gives an undue portion of it to those who have perverted his affections from those naturally entitled to them, thát the law vindicates their wrong by declaring them entitled to a certain portion of the amount and value of the property thus improperly bestowed. The Statute intends to compensate them for the wrong.

True, the Statute declares the gift null and void for any excess over the fourth, but this is defined to be his estate clear of debt, showing that it is the value of the thing given away, and not the abstraction of the thing itself, that forms the ground of inhibition. The wrong consists in giving an excessive “proportion of the real clear value” of the estate, and the redress intended is to compel a restitution of the amount or value thus improperly abstracted.

This interpretation of the terms of the Statute, may be doubtful. But the innumerable difficulties arising from a construction requiring partition in all cases practically forbid such, (this latter) construction from being exclusively adopted. *184I apprehend the proper reading of the Statute is that which advances the remedy, and that partition or compensation should be allowed according to the condition of the estate.

But, as I have said, I consider this part of the exception to be excluded by the decree. The residue of the exception will be made the ground of further directions to the Commissioner. He should cast his account in such way as to show the sums to be decreed to the plaintiifs respectively, and report that result specifically, and I think that after having ascertained the excess for which Mrs. Bryan is chargeable, interest should be given by the report from the death of Hull, or from the period usually allowed for distribution.

On these points the report is recommitted.

The plaintiff’s 3d exception raises a question, which cannot arise under my construction of the Statute, nor under the decree of Chancellor Dunkin. The plaintiffs are not entitled to the property specifically, nor its income; hut only to the excess over one fourth of its value, with interest. The exception is therefore overruled.

Mr. Bausketthas filed three exceptions on behalf of the defendant, and although they do not specify which defendant was meant, they were argued for Mrs. Hull.

The first of them raises the question whether the property in question belonged to Hull or to this defendant. There was some pretty strong general proof before the Commissioner, which will appear in his report, that Hull had nothing when he began to cohabit with her, and was not very industrious in accumulating afterwards, and that this defendant had something at the beginning, and was both active and frugal, after Hull came to live with her. But the meams of accumulation on the part of Hull were not so limited as contended for. The answer of Mrs. Hull to the case of Smith given in evidence conflicts very seriously with her present position, and she cut herself off very much from contesting Hull’s right to the property, by administering on it as his, and by her returns to the Ordinary.

This exception is overruled.

Mrs. Hull’s 2d and 3d exceptions were sustained hy the Commissioner, without appeal, and the fourth was not insisted on.

Bryan and wife (the natural daughter,) put in several exceptions.

The first insists on matters without the report, and is overruled.

Do. as to the second.

The third contends that the Commissioner did not put a proper estimate on the value of a particular Lot (No. 124.) The Commissioner does not appear to have mistaken the testimony. The exception is overruled.

*185The report does not show that the allowances contended for in the 4th exception were claimed before him, and the ex-k cextion is overruled.

The 5th has already been disposed of.

The report is recommitted.

The plaintiffs moved the Court of Appeals to modify the circuit decrees, upon the grounds:

1. That the provision made by the will of Gideon H. Hull for the defendant Ann Hull, so far as it exceeds the *one*fourth part of the clear value of his estate, is within the inhibition of the Statute of 1795 ; and submitted that the decree of His Honor Chancellor Dunkin ruling otherwise, however it may consist with the letter of the Statute, was at war with its spirit and intention.

2. That under the will of Gideon H. Hull, the defendant, Mrs. Bryan, took an estate in fee in the property thereby given to her; that even if she be held to have taken but for life with remainder to her issue, the provision for such issue is, within the meaning of the Statute of 1795, “a gift, settlement or conveyance” for her “use and benefitand that in either aspect the property devised and bequeathed to her should have been valued as an estate in fee.

3. That under the Act of 1795, the plaintiffs are entitled to have partition and distribution made between them and the defendants Ann Hull and Mrs. Bryan, of the specific property given to them by the will of Gideon H. Hull, as also to an account of the income and profits of the same accrued since his death.

4. That even if the plaintiffs have no right to partition or distribution oí the specific property given to the defendants Ann Hull and Mrs. Bryan, they are at least entitled to such a proportion of the income and profits thereof accrued since the death of Gideon Hull, as the excess of the provision for Mi’s. Bryan and Ann Hull above one fourth of the value of his whole estate, bears to the whole value of such provision, in lieu of interest upon the sum at which such excess is estimated.

The defendants appealed, on the ground that the complainants not being legally or equitably entitled to have any amount reported in their favor, the bill should have been dismissed. And they submitted that in the payment of the debts of the estate, the intestate fund should be first applied and exhausted; and then that the balance of the debts should be paid out of the property ineffectually devised and bequeathed to .Zulina, without exacting contribution from the bequests to Ann Hull, until after the whole excess of one-fourth, or ineffectual bequest, is exhausted.

Carroll, for the complainants.

Gray, for the defendants.

*1862 Dallas, 124. Art. 4°sec!í’ i Voi.115. ’ 7 Cranch 481. 4 CraJfeh" 268 l Bail. 242. ’ <W7Bsec.852 *1 ’*

Vide i Coke, 266.

Vide also 4 Kent Com. 5 Piok^537 36 vol. Law Lib. 158. l Brown O.C. 4 Ves, 810. 12 Ves. 500. fsichr4Ic7’ 47Í. *q'*MS. Book B. p. 291, Col.

Bauskett, also for defendants.

The plaintiff’s first ground of appeal insists that the defendant Ann Hull, is within the inhibition of the Act of 1795, and this depends upon the tech-nicat definition of Adultery, and the effect of the sentence of divorce.

As to Adultery. *República*v. Roberts, *Commonwealth v’ ■^>u^nam>' Commonwealth*v. *Call.*

t0 ^ e:®'ect of the- Divorce. *Constitution U. $., Act of Congress.*1790 ; *Mills*v. *Duryee ; Hampton*v. *McConnell.*

Gideon H. Hull was a party to the proceedings in Connec-^cut> and cases °f Nose *r■ Himely,*and *Miller*v. *Miller,*do not apply. As to Domicil, see *Story’s conflict of Laws,*46, and as to the effect of a foreign judgment of Divorce, *Story’s conflict Of Laws,*168, 191, and 492.

Second ground of appeal raises the question, what estate or quantity of interest Mrs. Bryan took in the property devised to her.

The words of the will show an intention to restrict her interest to a life estate. But in the devise over, after her death, it is said that -the words used as descriptive of the persons who were to take (“ heirs of her body,”) serve to enlarge her estate to a fee, and the rule in Shelly’s case is relied on. But not so.

It is clear from the whole will, that the testator intended that she should take but a life estate ; and a plain and manifest intention, when ascertained from the will itself, is paramount to all technical rules of construction. These rules are resorted to and applied only when it is equivocal what is meant. The words “ heirs of the body,” are here used as synonymous with “ issue,” for the will says, upon her demise, then the said property is to go to the heirs of her body, *if any,*or should she die without *issue,*but leaving a husband, then one-half, <fcc. But the rule in Shelly’s case does not apply.

L The estates are not of the same quality; the devise to Zulina is *equitable.*Charles Lamar is trustee ; but to the heirs of her body, or her heirs, or her issue, after her demise, is a *legal*estate.

*2.*The context of the will shows that the words “ heirs °f her body” were not used in their technical sense, and therefore brings the construction within the 3d exception to tde rrde *n Shelly’s case.

^ut if Zulina cannot take beyond one-fourth, and it be an estate either in fee or for life, what, becomes of the residue, is it intestate? The limitations to the husband and school in Hamburg are not too remote.

A devise of a particular estate to one who cannot take, with remainder ovei'> ^113 remainder-man takes immediately. *Shel-/0,'3 on Mortmain, Wright*v. *Row, Ejennell*v. *Abbott, Ba-leer*v. *Hall, Jackson*v. *Hurbek, Breithaupt*v. Bauskett, *JDurour*v. Motteaux, *Tinney*v. *Tinney.*

*187Book BS1°nS 340,Columbm.

i Bail. Eq.397.

oop‘

The plaintiff’s 3d ground claims partition'"of the specific property and an account for profits since the death of the tes-tcitor. But not so. The Act of 1795 declares m substance1 that if any person, &c. shall give any larger or greater proportion of the real clear value of his estate than one-fourth, such gift shall be void for so much of the *amount*or *value thereof as*shall or may exceed such fourth part of his real and personal estate. It is the *amount*or *value*of the excess over one-fourth that is declared void, and if the bastard will pay up that *excess*in value, he is entitled to the devise of the whole estate.

The legatee in throwing off property to reduce his legacy, has a right to select what he will keep, and may retain the whole, if he will pay in *value*or *amount*the whole excess. So ruled in *Gardner*v. *Atkinson.*

The property is to be valued in reference to the period of testator’s death, and the capacity of a subsequent enlargement of the estate is not to be estimated in making up the one fourth part. *Tinney*v. *Tinney.*

The defendant’s ground of appeal rests on the principle that in marshalling assets for the payment of debts, intestate property should, be first exhausted before a demand can be made on property *bequeathed; “*descended estates are liable before devised estates.” The rule is well settled. Vide *2 Jar-min on*Wills, 546, note, 4 *Kent,*420, *Warley*v. *War ley.*

Assuming that the bequest, to Ann Hull is good, why should she be called on to contribute to pay debts until the whole of the excess of one-fourth bequeathed to Zulinais exhausted? The plaintiffs claim, as next of kin or distributees under the Act of 1791, the excess of one-fourth, as *intestate*property. If this rule be not adopted, a specific legatee will have to contribute rateably with a distributee of intestate property.

The case is submitted.

JohNstoN, Ch.

delivered the opinion of the Court.

This Court concurs in so much of the decree as is brought before us by the first ground of appeal.

Adultery is familiarly known, in law, as the illicit intercourse of two persons, one of whom, at least, is married ; and we must understand the word to have been employed in this sense in the Statute of 1795, unless there is something in the context to shew that it was used with a different signification.

Where the words of a Statute, in their primary meaning, do not expressly embrace the case before the Court, and there is nothing in the context to attach a different meaning to them, capable of expressly embracing it; the Court cannot extend the Statute, by construction.-to that case, unless it falls so clearly within the reasons of the enactment as to warrant *188the assumption that it was not specifically enumerated among those described by the Legislature, only because it may have "been deemed unnecessary to do so.

Where the general intention of the Statute embraces the specific case, though it be not enumerated, the Statute may, nevertheless, be applied to it by an equitable construction, in promotion of the evident design of the Legislature. But where this is done,- it is always presupposed that *such a case*was within their genéral contemplation, or purview, when the Statute was enacted by them: for if the case be omitted in the Statute because not foreseen or contemplated, it is a *casus*omissus, and the Court, having no legislative power, cannot supply the defects of the enactment.

Nothing in the context of the Statute of 1795 has struck us as indicating that the word *adultery*was not employed in its primary legal signification ; and the case before us is a *casus*omissus, unless it can be brought within the reasons of the Statute.

In considering the Act, with reference to its general intention, it must be remembered that there are few rights more valued by the citizen, or more uniformly respected by the Legislature, (of which we have abundant evidence in this very Statute) than *the Jus disponendi:*and no construction in abridgment of this right, can be conformable to the spirit and intent of the Act, except where the abridgment arises necessarily from the application of the Act to the cases which it déscribes, or becomes necessary in carrying its provisions into effect, as provisions of a remedial Statitte.

The general scope and intention of this Act are very evident. Its provisions were intended, (so far as the Legislature could safely interpose for that purpose) to prevent a man who had forgotten his domestic duties, from squandering his property upon the object of his perverted affections, to the wrong and injury of his family; and by depriving him of the means of rewarding the associates of his vitiated appetites, or providing for their progeny, to discourage both him and them from entering into such immoral and pernicious con-nexions.

The persons upon whom his bounties were to be squandered were his mistress and his bastard children. The latter he could not legitimate, and therefore there was no difficulty in framing an enactment to meet their case. The mistress presented a very different case, requiring the utmost attention in constructing provisions not likely to be eluded. If we duly consider the difficulties to be encountered and overcome, we shall probably perceive why it was that the Legislature confined its enactment to the case of *adultery.*It was because it could not have effectually legislated for any other case of a kept mistress, without exercising a degree of rigor for which *189it was not prepared ; and which, if exercised, would, probably, have resulted in evils fully as intolerable as those which it sought to suppress, if not far more intolerable.

If the man had a wife, or the mistress a husband, this presented a case of adultery, for which provision could be made, incapable of being evaded. There was no possibility of legitimating the connexion, while either the wife of the one or the husband of the other lived ; and while these relations existed, the objectionable gift could not be made.

But in the case of a widower, living with a single woman, (the case before us, and to which it is contended the Statute applies,) no effectual prohibition could well be enacted, and, therefore, probably none was intended, although the Legislature may have felt the strongest disposition to protect the children of the former from improvident gifts made by their father to his mistress, at their expense.' It may have occurred to the Legislature that a woman who has such control over a man as to induce him to bring his motherless children to beggary, by giving his whole estate to her, has, in all human probability, sufficient influence to induce him to make her his wife, as a means of giving efficacy to the gift. What legislation could have prevented this, short of declaring that no man having children, shall bring to a second marriage more than one-fourth of his property ? or, that he shall not give to, or settle upon a second wife more than that proportion ? or that if he marry a woman with whom he has had illicit con-nexion, such inhibition shall exist? But from what appears in the Statute, no intention to interfere with the^'ws *disponen-di,*to the extent required by the two first cases supposed, can reasonably be ascribed to the Legislature; nor would such interference be required either by public policy or morality. The third alternative could not have been adopted without subjecting the parties to every second marriage, to investigations of most scandalous and immoral tendency, at the instance of the husband’s children. Such consequences could not be. tolerated, and may have induced the Legislature to confine themselves to cases of *adultery,*by producing a conviction that they could not safely provide for any other.

2. The second question raised by the appeal, is what is the quantity of estate conferred by the will of Hull on his natural daughter Mrs. Bryan?

In the judgment of the Court, she took a fee-conditional in the real estate, and a life estate in the personalty.

The property is given *“*in trust for the said Zulina, *during her natural life, and upon her demise, then, the said property is to go to the heirs of her body,*if any.” “ Should she die *without issue,*but having a husband, then to the husband,” &c. But should she *“*die *without leaving issue or*husband,” then over to a public school.

*190Vide 4 Kent 214. WUlslíir ch 36.

2Jarm. 244, 201, 253.

Ib. 246.

1 Rich. Eq. 404.

Ib. 411.

By the *rule in Shelly's*case, these words give Zulina a fee* conditional in the real estate devised to her. This rule is that where an estate of freehold, legal or equitable, is limited to a person, and the same instrument contains a limitation of the same legal or equitable character, either mediate or immediate, to his heirs, or the heirs of his body, the word *heirs*is a word of limitation, *i. e.*the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the *heirs °f ^s*he taiies a *fee-conditional;*if tohis *heirs*general, a *fee simple.*

It is not necessary in this case to observe, that when the limitation is of an equitable nature, or in trust, the rule does not operate, if the trust be executory, as where the trustee has some act to perform in regard to the tenant for life, or where the objects take not immediately under the trust, but by means of some further act to be done by a third person, usually him in whom the legal estate is vested.

The trust in this case is what is denominated an executed trust; and the rule applies in such case, equally as if the interests were purely legal.

The rule is a rule of property, and not of construction : that is, if the terms of the instrument make a case which falls within its operation, it will operate notwithstanding a persuasion may exist that such was not the intention of the grantor or testator. The general intention of the law must prevail over his particular intention. If the remainder-men can take *as*heirs, they shall not take as *purchasers*but *as heirs :*and the inheritance shall be annexed to the interest of the first taker. And *“*so strong is the rule that words, however positive, expressly negativing the continuance of the ancestor’s estate beyond the period of its primary express limitation, will not exclude it.”

These doctrines are undoubted; and it only remains to apply them to this case ; and we need go no further than our own case of *Whitworth*v. Stuckey, for a precedent. The devise in that case was of lands to a son, for life, and, at his death, to the lawful issue of his body. And it was held that the limitation to the issue served only to enlarge the son’s estate to a fee-conditiona.1.

In that case there was a limitation over, in case of the son’s dying without lawful issue living at'the time of his death ; but it was held that this did not restrict the son to a life estate, nor enable the issue to take as purchasers : and very properly; because, as we have seen, if it had been the positive and express intention of the testator that the son should take a life estate, and no more, the issue would still have taken as heirs, and the law would have annexed their estate to his.

If, therefore, the limitation over, in the case before us, were good, as to real estate, it could have no influence in excluding the rule in Shelly’s case.

*1914g|'no^llls

ep‘

Ib- *i6i‘*

Indeed, it would be extraordinary if an intention to limit over upon a contingency, at the expiration of the life estate, should have an effect to change the character of that estate and the ensuing limitation to the heirs ; when, according to the authorities, the direct and express interpolation of an intermediate estate between them, would have had no such effect.

“ If A, by will or otherwise,” says an elementary writer, “has an estate of freehold limited to him, and the same instrument contains a subsequent limitation to his right heirs, or to the heirs of his body, after some other estate for life, or in tail, interposed between such limitation of the first estate to him, and such subsequent limitation to his heirs, or heirs in tail, this remainder to the heirs, or heirs of the body of A., vests in A, as a remainder; and is transmitted through him, by descent, as from ancestor to heir. The general rule is this; that whenever the ancestor takes an estate of freehold, whether it be, or not, such as may determine in his lifetime, and there is afterwards, in the same conveyance, an unconditional limitation to his right heirs in tail, (either immediately, and without the intervention of any mean estate of freehold between his freehold and the subsequent limitation to his heirs, or mediately, that is, with the interposition of such mean estate,) there such subsequent limitation to the heirs, or heirs in tail, vests immediately in the ancestor, and does not remain in contingency, or abeyance; with this distinction : that where such subsequent limitation is immediate, it then becomes executed in the ancestor,forming, by its union with his particular freehold, one estate of inheritance in *possession;*but when such limitation is *mediate,*it is then a *remainder*vested in the *ancestor*who takes the freehold, not to be *executed in possession,*till the determination of the preceding mean estates. As, if there be an estate to A. for his life,” “ remainder to the heirs of the body of A: this is an estate tail, *executed in possession*in A: but if there be an estate to A. for his life,” “ remainder to B. for life, remainder to the heirs of the body of A., this is only a present freehold in A. with a *vested remainder*to him in tail, to take effect *in possession,*after the determination of estate.”

The same author also states the effect, when the intermediate estate is suspended upon a contingency: and refers to *Bowles'*case. “ The two limitations” says he, “ are united and executed in the ancestor until such time as the intervening limitations become vested; and then open and become separated, in order to let in such intervening limitations as they arise.”

I have said that if the limitation over were good, it could not prevent the application of the rule.

But the limitation over, in this case, is clearly void, as to *192the real estate, according to the case of *Mazych*v. *Vanderehorst*following the case of *Forth*v. *Chapman.*In the former case, where real and personal property were devised, in. the same clause, to A. and the heirs of her body, forever, but if she should die *leaving*no lawful heir or heirs of her body, then over ; it was held that the limitation over was g°od as t0 the personalty, but too remote, and therefore void, as to the real estate. Upon the principle of that case, the limitation over, in the case before us, is deprived, by remoteness, of any possible influence to convert the direct gift to the issue into an estate by purchase.

* ®yyf Isaf

l H'll Ch 265 1 ' '

Mjb’291 °k’

4 Speers Eq.i.

The effect, is different, however, as to the personalty. The case just referred to shews that the word *leaving*makes the limitation over, in respect to this species of property, valid: and then, the cases determined in this State upon *Bell’s will,*have laid down the rule, that when, as in this case, there is a direct limitation to issue, or heirs of the body, and then a valid limitation over in default of issue, the issue take as purchasers:

The consequence of these doctrines is that Zulina takes a fee-conditional in the real estate given to her by the will of the testator, and a life estate in the personalty, with remainder to her issue.

With respect to the real estate, the decision in *Adams*v. *Chaplin,*is that the fee vested in her from the time the will took effect. According to that case there was no estate appreciable in law left in the testator. Her estate was not, as had been supposed in *Tinny*v. *Tinny,*a íife estate, to be en-lar§ed t0 a ^ee uPon the birth of issue, but a fee, defeasible in the event of her dying without performing the condition annexed to it.

A question is raised whether the remainder given t.o the issue of Zulina in the personalty is not to be regarded.as a personal benefit conferred on her by her father, falling within the inhibitions of the Statute of 1795. in *Bradley*v. *Lowry,*where a father gave a slave and a tract of land to the husband of his natural daughter, it was held to be a benefit conferred upon the daughter, within the meaning of this Act, because the evident design was to confer a benefit on her, through her husband, in evasion of the Statute. In that case the benefit was direct, because of the unity of the husband and wife. Nothing could be given to the one without the enjoyment of the other. We feel great difficulty, however, in following that decision here. The argument is that by providing for Zulina’s children, her father exonerated her, to the extent of that provision, from the duty and burden of providing for them. But, if we should take into consideration bounties of this remote description, we should entangle ourselves in extricable difficulties in the application of the Statute, and rve deem it safer to hold that the interests of the children of *193Zulina, who take as purchasers, distinctly from their mother, and not through her, or in connexion with her, shall not be regarded as a gift to her.

M. S.

iRi0h.Eq465’

Bail. E<j,-39'7

We come now to the most subtle question in the case. Ann Hull, the mistress, whose legacies have been supported, contends that after applying and exhausting- the intestate property in the payment of the testator’s debts, “ the balance' of the debts should be paid out of the property ineffectually devised and bequeathed to Zulina,” and that the bequests^to’ Ann Hull should not be required to contribute to the payment of debts “until the whole excess beyond one-fourth, or ineffectual gift to Zulina, shall have been exhausted.”

It is contended that the Act of 1795 is to be applied to the property given to Zulina, *in the first*instance, and that her legacies are to be vacated to the extent that they exceed in value one fourth of the whole estate after deducting the debts in gross: and that this excess is then to be regarded as in-_ testate property, and applied to the debts, in exoneration of Ann Hull’s legacies, which, in respect to intestate property, is only secondarily liable. But we are 01 opinion that this would invert the proper order of proceeding. It was long ago determined, in *Owens*v. *Owens,*that the will of a testator, in favor of his bastards or mistress, was a good and valid will as to all the world except his lawful wife and children: and so far has this doctrine been carried that, in *Breitkaupt*v. *Bauskett,*it was held by Chancellor Harper, that the election to avoid it was so completely personal to these parties, that the privilege expired with the life of the wife, and could not be exercised by her executor.

The instrument is not *void*but voidable; and as to all persons taking by the will, the estate is to be *administered under the will,*as if there were no such thing as the Statute of 1795. The rule for the payment of debts, as laid down in *Warley*v. *Warley,*is to be applied until the clear value of the lega-1 cies and devises is established and then the Act of 1795 is to be applied, at the instance, and for the benefit, of the lawful wife and children, for the vacation of so much as has resulted in legacies to the mistress or bastards, beyond one fourth of the clear value of the whole estate. There can be no difference in principle, whether parties entitled to take advantage of the Act of 1795, make their application for that purpose before or after the debts are paid and the legatees put in possession of their legacies, nor should the results be' different. If the lawful wife or children should be ignoiant of the facts until the administration is closed, and should then discover that the spurious family, one or more, are in possession of a clear estate, exceeding one fourth of the clear estate of the ancestor, they have a right to make their case against them, without calling in the executor or other legatees. They *194have nothing to do with the administration in such a case, uor can t]-ie administration affect their rights, one way or 'another. Nor can their obtaining a decree for the excess to which they are entitled, authorise any legatee, specific or other, whose legacies have been partially or wholly applied to debts of the testator, to callupou them for contribution out of their recovery, as intestate property ; and thus subject the estate to a second administration. Their reply t©- such an application would be that what they had recovered was recovered from a legatee who, from the relations subsisting among those claiming under the will, was entitled to it *as against every other legatee:*that they recovered it by a superior right, from a party holding by a better right than the party now demanding it from them; that their recovery had not rendered their acquisition *intestate property ;*on the contrary, they had recovered it from one in whose hands it was testate, and because it was given to him *as testate;*and that although they had avoided his legacy, the property was in their hands, as it was in his, *testate properly as to every party taking under the will.*

i Speer’sEq i. F

If the lawful wife and children come into Court while the administration is still pending, they must make the executor a paity to the suit: but this is not to change the course of administration, the purpose being to conduct the administration to the proper conclusions under the will, and to ascertain the property resulting under the will to that party against whom their claim is really to he made.

The question might be very properly put to Mrs. Ann Hull, why *her*rights under this will are to be increased in consequence of the claim made by the lawful children upon her daughter. If they had never made their claim, she would have had' no right to contribution out of the property indicated by her ground of appeal.. As their claim does not *prejxit-dice*her, it is not percived why she should take any *benefit*from it.

If her ground were sustained, the adjudication would pre,-sent this strange absurdity, that she would take from the plaintiffs what they obtain by a superior right from Zulina, and then in her hands it wotdd be reclaimable by Zuliua by a better right than hers : and thus the adjudication mustpro^ ceed continually in a circle.

The last question is whether the excess to be recovered by the plaintiffs is to be set off to them by *partition,*or to be accounted fore# debito,, and this is a question of n.o little difficulty.

*In Bradley*v. *Lowry,*this question was reserved. In that; 'case l incliued to the opinion that the excess should not be accounted for, but taken off by the process of partition; because, as 1 then read the Statute, it made the title of the *195donee good for a part and void for the residue; which seemed to infer that there was a community of title in the donee and the lawful family of the donor, according to their respective interests. I have carefully reviewed the statute, and I now doubt that opinion. Insuperable difficulties would arise from holding that in all cases there was an absolute right to claim partition. In many cases it would be impracticable. Suppose; for example, specific gifts were made to each of 20 bastaid children, with cross remainders among them. Other examples might be given, little less embarrassing, but this will suffice.

On the other hand, as I have said in my circuit decree in this case, the terms of the statute do, in a great measure, point to compensation for the excess, and I very much doubt whether if the whole of an estate were bequeathed to a bastard on condition that he account to the lawful family for three fourths of its clear value, such a will must not be specifically executed by the Court, as conforming to the Statute.

But even under the construction that the statute requires nothing but a restoration of the excess in value, when this can conveniently be done by partition, that process might be adopted.

Our conclusion is that nothing can be definitively ordered on this point until the property in the hands of Zulma is ascertained, and how much it exceeds in clear value one fourth of the estate.

It is ordered that the decrees be modified in conformity to this opinion; and that the Commissioner do ascertain and report,

1st. The gross value of the estate.

2d. The aggregate amount of the debts.

3d. The value and description of the different devises and bequests.

4th. The sums chargeable to the same in a due course of administration.

5 th. The nett value oí the different devises and bequests to Zulina.

6th. The exeess received by her over one fourth of the testator’s estate, clear of debts.

7th. The rents and profits; and

8th. Any speceial matter; including a statement of what the plaintiffs are entitled to.

The defendants to pay the costs not heretofore provided for.

Donkin, Ch. and Daegan, Ch. .concurred.

*Decrees modified.*