[Present, Chancellors Rutledge, Bubke and Mabshall]

#### Philip Leven Hart and others, *vs.*the executors of Philip Hart, deceased.

Where there is a plain and positive devise, the Court will not raise an implied trust in executors, to favour a particular devisee.

NOVEMB. 1801.

*58Among Other legacies to the testators relations, there was one *“*to the children” of his nephew, S. M. H. and then a devise of the residuary estate to his several relations," abovementioned,” with bequests, share and share alike. These children take but one share of the residuary estate.

A legatee by codicil is not entitled to a share of the residuary estate bequeathed to his relations named in the will, of whom he was not. one.

The real estate decreed to be sold, and then divided among the residuary legatees, some of whom were aliens.

PHILIP HART, a citizen of Charleston, made and duly executed his last will and testament, on the 3d day of Feb. 1796, in the presence of three ■ witnesses, with a Codicil thereto, of the same date, wherein and whereby he bequathed as follows: To his nephew, Abraham Levy Hart, one thousand guineas : to his nephews P. L. Hart and A. M. Hart, *5001. each;*to his nieces H. M. Hart and Ella. M. Hart, 100/. each j to his sisters chiL dren, M. D. Shiff, and J. D. Shiff, 100/. *each;*to the children of his nephew, Simon Moses Hart, and to the survivors of them, share and share alike, 400/.; to his sister Hester’s daughter, Galle, 100/. *;*to the widow of-his bro~ ther, Moses Hart, 200/.; to Keram Kagames, (a religious institution) in Hamburg, 1500 marks. To the Synagogue in Charleston, 200/. and to the Poor House, and Orphan House, 100/.

He then says, “ as to the rest óf my estate, (if any there should be remaining,) after paying all my just debts, and the abovementioned legacies,” “ it is my will that the same be equally divided between my several relations abovementioned, with bequests share and share alike.” And by the codicil to his will, he bequeathed to his nephew, Simon Moses Hart, 400/. The testator died soon after, leaving his said will in full force. Thomas Roper and Robert Dewar, qualified on the will, as executors thereof. Abram Levy Hart, the other executor named in the will, died soon after his uncle Philip; and his re-' lation Simon M. Hart, has administered on his estate.

*59The estate consisted of a considerable personal estate, and some real estate. "

Most of the legatees were foreigners, inhabitants Poland, and . alleged to be within that part of Poland oc- * , 4 ^ *t*4 ■ cupied by Prussia, in the partitions of that country.

The executors paid the pecuniary legacies ; but having some doubts as to the real estate, on account of most of the legatees being aliens, whose claims to the real estate were opposed by. Simon Moses Hart, a nephew of the testator, on behalf of himself and his three children, who are citizens, they required a bill to be filed in this court, in order to have the sanction of its judgment. A bill was accordingly filed by the legatees, who were foreigners, not naturalized, against the executor, for a sale and division of the real and personal estate, that the will of the. testator for the equal division of the whole residue of his estate, real as well as personal, might be carried into full execution. The bill also made Simon Moses Hart a defendant. The complainants insisted that there was a trust by- implication in the executors, to give, effect to the will. And the bill prayed for relief.

The executors, in their answer, admitted the facts stated in the bill, and submitted to the court the effect of the proofs of the relationship of the complainants. They admitted that having.paid the legacies, they are in possession of other personal property, and some real estate, (two lots of land in. Charleston, and a tract of land in the country;) and some of the legatees have applied to them to sell the lands, and to divide the money as the residuum of the estate, in the manner directed by the testator, as and concerning the rest and residue of the estate. That the executors having doubts as to the real estate, especially as Siihon Moses Hart insists that the other legatees being aliens, he alone, and his children, being citizens, are exclusively entitled to the real estate of the testator, the executors pray the direction and judgment of the court for their guidance.

Simon Moses Hart,-one of the nephews of the testator, *60and the legatee in the codicil to the will, in his answer set up a claim to the whole real estate of which the testator died seized, in his own right, or in the right of his. children, they being natural born citizens of this state : and he be- ***^ ing naturalized on *11*Ji of Oct. 1796, soon after Philip Hart, the testator’s death. That all the other legatees are aliens and incapable of taking real estate; and there was no power in the executors to sell the real estate, and convert it into personal; nor was there any implied trust.

At the hearing it was contended for the complainants, that the intent of the testator was manifestly to dispose of the whole estate. Indeed the very words of the will are “ as to the rest of my estate, it is my will that the same be equally divided between my several relations abovemen-tioned, with bequests, share and share alike.” rI he word estate is sufficient to carry every thing which a man hath,. See Co. Litt. 345, and 2 P. ffm’s. 335, 523. Cases Temp. Talb. 157.

But how was this to be effected. There are two city lots of land, and one tract in the country. These are indivisible among so many legatees ; almost all of whom, as the testator well knew, resided in Europe ; and therefore it could be only by a sale, and a division of the proceeds, that the intent of the testator could have effect. There must therefor be an implied trust, that the executors should sell the real estate, convert it into money and divide that conformably to the will. The court will strain a good deal, and adopt any reasonable construction, rather than declare that a forfeiture is incurred. See 1 Fonb. 442 3, 2 Fonb. 58. It is clear that the testator meant that his whole estate, real andpersonal should, after payment of debts, and enumerated legacies, go to the residuary devi-sees. This intent will be carried into effect if possible. It is possible, if the court will direct the executors to sell it, and divide the moiiej'. See 2 Bro. C. C. 277. The Court will raise a trust in the executors to give effect to the intent.

In many cases exe-utors are declared trustees to pay *61debts. Seel Vern. 296,411. 2 Vern. 106,228. Cases Temp. Talbot, 157, 163, 283. 1 Bro. C. C. 81. 3 Ves. jur. 7,152. *7*Bac. 138 9. _

_ Executors are also trustees of the residue, for the next of kin, where no disposition is made of it. And by parity of reasoning for the residuary legatee, where the occasion requires it. See 2 P. Wms. 523 186. 3 P. Wms. 295. 4 Ves. jur. 21, *76, 117, 725. Nor*is it certain that the complainants are incapable of taking and disposing of real estate in this country. They are Poles, and are alleged to be- now subjects of Prussia. And by the 10th article of the American treaty with Prussia, the citizens and subjects of the two countries are at liberty to sell real estates which descend upon them (or devolve doubtless by. will) in the country of the other power,

At any rate the defendant Simon Moses Hart, cannot take and hold the real estate, if alienage be a bar, for he was not naturalized till the death of the testator. See 1 Bacon, 132, title alien.

Mr. ParkeR for the defendant S. M. Hart, & his children.

The counsel admitted that the word “ estate” used in the will, would carry the whole estate, real and personal. But he contended that there was not any direction in the will, that the property should be sold by the executors for the benefit of the heirs'. And unless there be an absolute direction, the court will not raise a trust for that purpose, in favor of residuary devisees, who are aliens, to the prejudice of the heir at law,’or person entitled by operation of law. The law which excludes aliens from taking and holding lands devised to them, (which makes them purchasers — 2 Bro. C. C. 189,) would be eluded, if the court would raise a trust in the executors, and direct sales of the land, and the money to be paid over to aliens.

The complainants then being aliens, cannot take any benefit of this devise of lands, and they will go to his nephew, Sjmon Moses Hart, who is a naturalized citizen; pr if his naturalization, after the death of the testator-be too *62late, to his sons, who are natural bom citizens. For if *k*man dies, leaving sons, and the eldest be an alien, the law passes him by as though he were not in existence, and his younger brothers take in exclusion of him. 3 Salkeld. 35. With respect to the right of the foreign devisees to take the benefit of the will under the treaty with Prussia, because part of Poland has been annexed to Prussia, it has - not been proved that these devisees *were*inhabitants of that part of Poland, which has been permanently annexed to that kingdom and if they were, we have no proof that they being Jews, are entitled to hold landed property. It is well known that the Jews are not permitted to hold real estate, or immoveable property, in most of the kingdoms and states of the continent of Europe, where they are subjects : and the proof lay upon the complainants to get rid of the legal objection -of alienage, by shewing that they were subjects of Prussia, and could hold. lands in that kingdom; else they could not have the benefit of this peculiar provision in the Prussian treaty.*

*

 Mr. PARKER offered to have a young- man of the name of Hart, swofn, to prove that Jews in Prussia, are not permitted by law -to hold land, but for a limited .time, (leasehold) and that they are excluded from many otherprivileges.

This wasnot considered a sufficient authentication of the *I<ex Loci,*and Chancellor Burke remarked, that the celebrated Ephraim was treasurer to the king of Prussia, who reposed unlimited confidence in him, and removed most of the disabilities of the Jews,

Chancellor Rutledge

delivered the decree of the court.

The testator, P. Hart, after giving several pecuniary legacies, makes a residuary clause, m the following words; “ And as to the rest of my estate, if any there should be remaining, after fully paying all my just debts, and the above mentioned legacies, it is my will that the same be equally divided, between my several relations above men* tioned, with bequests, share and share alike.” Various questions arise under this residuary clause.

1st. Whether there is not a trust by implication created in the executors, by the words of this clause ?

*632d. What share of the residuary estate, the children of Sijnon «l. Hart will take ?

3d. Whether Simon M. Hart takes any part of it?

4th. If a trust by implication is not created, what part of the real estate of the testator, Simon M. Hart would be entitled to, the complainants being aliens, and as such, not capable of inheriting real estate ?

The first question was the most strongly contended and it was insisted for the complainant, that the words of this clause would create a trust by implication in the executors, in order to enable them to sell the real estate, (if the personal was not sufficient) to pay the debts and legacies, and for the purpose of making a division among the residuary legatees, agreeably to the intention of the testator. A variety of cases were adduced, to shew that words of desire, request or recommendation, will raise a trust by implication, to execute the intention of testator. Upon a review of those cases, (though they are very good law,) it will be found that they are not applicable *;*for in all of them, the testator has given an estate for life, or a certain term, to a particular person in the first instance, and then follows his request or recommendation to that person to dispose of the estate in a particular manner, to certain persons named or described by testator. That is not the case before us, for the residuary clause in the will is as plain as words can make it: it is in the common phraseology of residuary devises or bequests, and cannot, we think, but by a most forced construction, create an implied trust in the executors. The estate, if any there should be remaining, being given expressly and directly to the legatees above mentioned; and therefore it is not necessary for the intervention of trustees, to carry the intention of testator into effect; for if the residuary legatees cannot agree on a division, this court, on application, will decree it.

In this particular case, it is necessary to contend for an implied trust, being in the executors, to enable *them to*sell the real estate, and convert it into money, for the purpose of appropriating a part of it to the complainants, who *64are aliens; and but for that circumstance, it is presumed this suit would never have been instituted; but surely it would be cariying the doctrine of implied trusts further than the court is warranted in doing, to put a forced construction, as is contended for in a plain clause of a will, to favor a particular legatee.

Desaussure, Ford and Pringle, for complainants.

Parker, for defendants.

With regard to the second question, the court are of opinion, that the children of S. M. Hart take but one share under the residuary clause, because they are not named individually, but collectively, in the particular bequest in the will*

3d question — The court are of opinion, that S. M. Hart is not entitled to a share as residuary legatee, he not being one of the relations in the will above named.

4th. Simon M. Hart can only take such part of the residuary real estate of the testator, as his father, whom he represents, would have been entitled to.

The court decreed that the real estate be sold by the master, and the money arising from the sale, be divided among the residuary legatees, as they are respectively entitled thereto.

Costs to be paid out of the estate.

During the sitting of the Court which commenced in October, 1801, and continued throughout November, the ill health of Chancellor Burke, prevented his attending the Court more than three days; and he was never ablc-to attend afterwards, till his death in the year *1802.*